Opinion
F054334
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. DERRICK LASHAN HILL, Defendant and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant Derrick Lashan Hill was convicted of first degree murder and two counts of robbery. In addition, the jury found true the special circumstance of murder during the course of a robbery and also found true as to each count that defendant personally used a firearm. Defendant admitted he had suffered a prior serious felony conviction for purposes of the Three Strikes law. He appeals, claiming the trial court erred in denying his motion for new trial based on jury misconduct. In addition, defendant argues the trial court prejudicially erred when it admitted evidence of defendants prior conviction and failed to limit the jurys consideration of this evidence. Respondent concedes to defendants claim the trial court erred when it sentenced defendant on the robbery convictions for acting in concert when that fact was neither alleged nor proven. We will remand for further proceedings concerning the new trial motion.
FACTS AND PROCEEDINGS
Husband and wife Sebastian and Veronica Caradonna ran a cleaning service from their home. In January of 2006, Ceona Harvey worked for the business for about a week and then left abruptly. The Caradonnas paid their employees in cash once a week. The employees, including Harvey, were paid at the house. The Caradonnas were switching from cash payments to checks beginning the first week of February of 2006. When Harvey was working for the Caradonnas, she asked fellow employee Ruben Perez if Sebastian had a safe and how much money he carried.
Antoinette Carasco knew Harvey. Harvey had a relationship with Carascos sister. Carasco was helping Harvey move on February 1, 2006, and was with her until about 4 p.m. Carasco again saw Harvey that evening sometime after 8 p.m. At one point, Carasco looked outside her home and saw defendants white car, as shown in Peoples exhibit No. 47. Harvey said that defendant was outside and wanted to "holler" at Carasco. Carasco did not actually see defendant.
That same evening, Ramon Torres was driving to the Caradonnas home in a van to report for work. On his way, he picked up two other employees, Ruben Perez and Paul Mendez. The three employees arrived at the Caradonnas at approximately 10 p.m. When they arrived, they began their usual routine. Sebastian would open the garage door and the employees would retrieve instructions, paperwork, and equipment from the garage before they left to clean the assigned businesses.
Torres parked the van in front of the Caradonnas driveway. Mendez got out of the van and went to the garage to retrieve the paperwork while Perez and Torres remained in the van. The exterior garage door had been opened by Sebastian.
As Mendez was returning to the van, two masked men came up to the van and pointed guns at Perez and Torres. The two men ordered the employees out of the van at gunpoint. The taller of the two men, defendant, had a rifle. The shorter man had a handgun. Defendant was wearing a bandana that covered most of his face and a hood that covered his head. In addition, defendant was wearing black gloves.
The three employees were shoved into the garage and told to enter the house through the door from the garage. Veronica was inside the house watching television with Sebastian. Their young daughter was asleep in another room, and their 18-month-old son was asleep in his crib in the master bedroom. Veronica heard a beeping sound, which meant the alarm had been triggered. It was unusual at that time of night for employees to come in the back door.
Sebastian went toward the door. Defendant and the shorter man shoved the employees through the door into the house. Defendant said they knew there were children in the house. He said they wanted money and asked where the safe was. Veronica was ordered by defendant to retrieve some shoelaces, while the employees were ordered to lie face down on the floor. Torres was allowed to lean face down on the couch because his arm was in a cast, his arm having previously been broken. Defendant followed Veronica into one bedroom and then into the master bedroom where she retrieved shoelaces from shoes in the closet.
Utilizing the shoelaces, the assailants tied the hands and feet of Mendez and Perez. The assailants kept asking for the money and for the location of the safe. Sebastian and Veronica told them there was not any money and they did not have a safe in the house. Defendant said he had been scoping out the house, and he knew there was a safe. Sebastian offered to give the men the personal identification number for his automatic teller machine card, but defendant declined. Sebastian offered Veronicas wedding and engagement rings. Defendant went with Veronica to the area where her purse was located so she could retrieve the rings from her purse.
Defendant took Veronica back to the master bedroom closet looking for the safe. Defendant was knocking things down looking for the safe. Defendant asked if there were any weapons. Veronica pointed out a hunting rifle in a locked case in the closet. Veronica took the gun case out to the living room. Sebastian was ordered to find the keys; he found the keys and unlocked the gun case.
Veronica and Sebastian were ordered to give the assailants the money or they would all be killed, one by one, starting with the children. The shorter assailant hit Sebastian in the face with a gun, knocking Sebastian over a chair and breaking it. Defendant hit Veronica in the face with full force, knocking her glasses off.
Sebastian then told the assailants there was money in the garage. As Sebastian moved toward the garage, he signaled to Veronica with his eyes. When Sebastian and the assailants moved out into the garage, Veronica dialed 911 and then left the cordless telephone on the counter. From this point until emergency personnel arrived on the scene the 911 call recorded what could be heard in the house. A tape of the 911 call was played for the jury.
After Sebastian returned from the garage with the assailants, the assailants were more upset than before because there was not any money in the garage. The shorter assailant said he was going to kill them one by one, starting with the children. The shorter assailant stood over Veronica and Sebastians daughter with a gun. She was asleep, and Veronica pleaded with the shorter assailant to not shoot her daughter. Veronica and the shorter assailant returned to the living room. The smaller assailant told defendant to shoot Veronica in the leg. At this time Sebastian looked at Veronica and signaled to her again. As the shorter assailant looked out a window, Sebastian tried to get out the sliding glass door.
Defendant fired the rifle and Sebastian fell to the floor, fatally wounded. The assailants got nervous, as Veronica had previously told defendant that her neighbor was a police officer. Veronica told the assailants to leave. The smaller assailant struggled with the door to open it. Veronica opened the door, the men left, and Veronica locked the door. When the men left, they took the gun from the gun case, as well as Veronicas rings.
Veronica saw Sebastian and screamed for her neighbor, Richard Escalante. Escalante, a police officer, was dozing off at home when he heard a metallic sound. He thought it was workers at the Caradonnas so he did not look outside. A few minutes later he heard Veronica screaming. He retrieved his gun and looked over his back fence. Veronica screamed for him to come over. Escalante was let into the house and he attended to Sebastian. Sebastian stopped breathing approximately two minutes after Escalante arrived.
Several witnesses testified that it was difficult to find the Caradonnas home. Escalante said he chose his home based on the difficulty in finding it. In addition, Escalante testified that the area where the mailboxes were located was poorly lit.
The crime scene was processed. The technicians did not find any DNA or fingerprints belonging to defendant or to Harvey in the house. Shell casings and cartridges were retrieved from the home. The shell casings found in the home were casings associated with assault-style rifles.
Sebastian died from gunshot wounds to his right shoulder and right abdominal area. It was the pathologists opinion that the shots were probably fired from a rifle, not a handgun. In addition to the gunshot wounds, Sebastian had a laceration on his lip, which could have been from being hit with the butt of a gun.
Torres testified that as he drove to work that night he noticed a white car parked by the mailboxes near the Caradonnas house. He noticed the car because it had unique rims. He described the car to questioning officers as a Dodge Avenger. When later shown a picture of defendants white Chrysler Sebring, exhibit No. 47, Torres identified the picture of the car as the car he had seen that night. A Chrysler Sebring is nearly identical to a Dodge Avenger.
Veronica identified defendant at trial as the taller of the two assailants who murdered her husband on February 1, 2006. She had no doubt that defendant was the taller assailant and said she would never forget his face. In addition to identifying defendant at trial, Veronica said she recognized defendants voice at a hearing held in May of 2006; at that hearing defendant was not in the courtroom where Veronica could see him. At a hearing in June of 2006, defendant walked into the courtroom with a group of men and one woman, including two Black men. Veronica recognized defendant as the taller man who murdered her husband.
Call detail records for Harveys telephone and for the telephone used by defendant were obtained from Cricket Communications. It was learned that between January 20, 2006 and January 30, 2006, defendant and Harvey exchanged 14 calls. Some of these calls lasted only seconds, while others lasted longer. The longest call lasted over six minutes.
On January 31, 2006, the night before the murder of Sebastian, defendant called Harvey at 5:40 p.m. That call lasted 14 seconds. At 10:17 p.m. defendant called Harvey and the call was 2 minutes, 21 seconds long. This call was picked up by Cricket tower E2444. Tower E2444 was the Cricket tower that was located closest to the Caradonnas residence.
On the day of the murder, defendant and Harvey exchanged six calls, with the last call occurring at 6:10 p.m. At 8:58 p.m. the night of the murder a call was made to defendant that lasted 13 seconds. The tower that defendants telephone used to receive this call was near the Caradonnas residence.
From February 2, 2006 to February 4, 2006, defendant and Harvey exchanged 11 calls.
The person testifying from Cricket Communications said that its records show the initial tower that picks up a call. There has to be a connection for the call to be recorded in the call record. A connection is made when either a person answers the telephone or voicemail is activated.
Jim Cook, a wireless consultant who has worked in the industry for 20 years, testified regarding cellular telephone towers. He said the systems are set up so calls will go to the nearest tower. Generally, a call will go to the nearest tower over 90 percent of the time. Issues that would cause the call to go to the next closest tower would be cellular telephone traffic, structures, foliage, and other obstructions. Cook testified that 10:17 p.m. on a Tuesday is not a high traffic time for cellular telephone usage. Cook went to the area of the crime and did not see any obstructions that would interfere with a call. He testified that absent any capacity problems or interference it is 99.9 percent certain that a call will go to the nearest tower.
In addition to the towers covering certain areas, each tower also has more than one antenna that covers a section ("sectorization"). The 10:17 p.m. call made by defendant to Harvey on January 31, 2006 came from the E2444 section of the tower that pings to the east. The Caradonnas home is located in this sector.
Detective Brad Alcorn interviewed defendant at defendants workplace on April 18, 2006. Alcorn asked about defendants cellular telephone, and defendant handed it to him. It was the telephone with the number associated with the calls to Harveys telephone, as detailed above.
Defendant told Alcorn that he sometimes let people use his telephone if he was there, but he did not let people walk off with his telephone. Defendant said his telephone was in his possession on February 1, 2006. Defendant said he had never been on Shepherd or Fowler, the streets near the Caradonnas home where the cellular towers were located. He also repeatedly denied ever being in that part of town, particularly denying his presence there on January 31, 2006.
Defendant was asked about the Chrysler Sebring. He said he owned five cars and the Sebring was his girlfriends car, but he was co-registered as the owner. He drove the car frequently and did not loan it to anyone else to drive.
When Detective Alcorn told defendant that they had a search warrant for the car and his house, defendants demeanor changed. Defendant told Alcorn he would not find anything at his house that had been fired. Defendant could not remember where he had been the night of February 1, 2006.
A black revolver was found under the hood of the Sebring. Black leather gloves were found in another car owned by defendant.
Defense
Allan Thompson, an independent consultant in the telephone industry, testified for the defense. He testified that a cellular telephone call does not always connect to the closest cellular tower. If there is not line of sight to the nearest tower, then the signal would go to another tower. He testified that a cellular telephone signal can travel for miles, depending on the area. Which tower is used for a cellular call can be affected by call traffic, terrain, weather, and whether one is in a vehicle. Thompson did agree that most calls normally go to the nearest tower. He testified that one cannot pinpoint an exact location within a sector.
Police Officer Michael G. Harris interviewed Veronica in the early morning hours of February 2, 2006. Veronica described the taller assailant as being about six feet tall or more and wearing dark clothing and a bandana.
Torres testified that he told detectives the car he saw the evening of February 1, 2006, was a Dodge Avenger and it may have had a darker color on the bottom. He looked at the car long enough to see the nice rims and body type. On cross-examination, Torres said he was absolutely certain that the car pictured in exhibit No. 47 was the car he saw that night.
Psychologist Robert Shomer testified as an expert in eyewitness identification. It was his opinion that the accuracy of voice identification is so low that it is not considered forensically reliable and it is almost impossible to achieve a match with a voice when that voice is heard in a life-threatening situation and the voice is from a stranger. The accuracy of voice identification diminishes even more when only a few words are heard when the identification is made and the identification is made after a significant delay.
Shomer identified factors that reduce the reliability of eyewitness identification. These factors include a high-stress situation, having a weapon in ones face, the person is wearing a disguise, and cross-racial identification. It was explained that people unknowingly change their perceptions from their initial observations because they begin mixing in subsequent information.
Defendant testified on his own behalf. He admitted he suffered a prior felony conviction for bank robbery in 1994. He believes he was wearing something to hide his face at the time of that robbery but could not remember if he had anything on his hands.
At the time of the crime here, defendant had a job where he was making in excess of $2,000 a month. He had few bills at this time and lived with Kimberly Sears, the co-owner of the Sebring.
He admitted that he sometimes drove the Sebring. The gun found under the hood of the Sebring was a gun he purchased in March of 2006. He put it under the hood to hide it from Sears.
Defendant testified that he knew Harvey because his uncle married Harveys aunt. He has known her since 2003 or 2004. At a time around January 20, 2006, he was going to help Harvey move and communicated with her regarding a truck he was going to borrow to help her. Harvey called him a lot during this time.
Defendant had no recollection of where he was when the 10:17 p.m. call was made on January 31, 2006. He said he sometimes plays basketball at Peoples Church and spends a lot of time at Johns Incredible Pizza. Both of these establishments are in the general vicinity of the Caradonnas house in northeast Fresno.
Defendant said he became nervous when Detective Alcorn was going to search the Sebring because he knew he had a gun under the hood. Defendant denied any participation in the events that occurred at the Caradonnas residence on the evening of February 1, 2006.
On cross-examination, defendant admitted that the gloves found in his sports utility vehicle belonged to him. He used the Sebring on February 1, 2006, to go to Harveys house. He dropped her off at 9 p.m. and thinks he went home, but he did not remember exactly what he did that evening. Defendant testified he did not know that Harvey had a job in January and was not aware she had been fired from the job.
Motion for New Trial
Defendant made a motion for release of juror identifying information, alleging that juror misconduct had occurred. The court granted the motion as to two jurors who did not object to the release of their information and the two jurors who did not respond to the letter asking whether they objected to the disclosure of their information. The court denied the motion for disclosure of juror identifying information as to the 10 jurors who objected to the disclosure of such information.
Defendant filed a motion for new trial based on jury misconduct. Attached to the motion were declarations from defendants trial counsel and declarations from juror No. 5 (No. 5), juror No. 11 (No. 11), and alternate juror No. 2 (No. 2).
Defense counsel declared that he was contacted by No. 5 two days after the verdicts of guilty had been entered. No. 5 then came to defense counsels office and related numerous instances of claimed misconduct—including that a juror brought a newspaper article about the case into the jury room and it was discussed and that a juror conducted Internet research during the weekend that occurred in the midst of deliberations, printed off an article on the use of cellular telephone records, and brought the printed article to the jury room where it was discussed. No. 5 gave defense counsel the original newspaper article, as well as the original Internet research papers.
Defense counsel then declared that No. 11 telephoned his office and confirmed what No. 5 had said. No. 5 and No. 11 came to defense counsels office and together gave a taped statement regarding their allegations. A defense investigator contacted juror No. 8 (No. 8) and No. 8 denied any knowledge of any misconduct by any juror in the case. The investigator also contacted No. 2, who related several instances of misconduct before deliberations began. Because No. 2 was an alternate, No. 2 did not have knowledge of anything that occurred during deliberations.
The defense filed declarations from No. 2, No. 5, and No. 11. The declaration from No. 5 stated that jurors read media reports of the trial during trial: specifically, the article regarding the 911 call was brought into the jury room, passed around, and discussed. In addition, No. 5 said that during deliberations a juror did weekend Internet research on the use of cellular telephone records, printed out an article, brought it into the jury room, and discussed it with other jurors. Also, No. 5 alleged that jurors discussed the case among themselves outside of the courtroom in public places while the trial was in progress and discussed the merits of the case in the deliberation room before the case was submitted to the jury for deliberations. No. 5 declared that he brought the original newspaper article, as well as the printout of the Internet research, to defense counsel.
The headline of the July 17, 2007, newspaper article was, "Defense unable to silence `emotional bias." The articles main topic was the 911 tape of the call made by Veronica during the robbery. The article described the 911 call and said the defense sought to exclude it because it would inflame the passions of the jury. The article stated that the district attorney was infuriated that defense counsel suggested the prosecutor may have been attempting to inflame the jurys passions and prejudices. The article then briefly described the crime, stating that Ceona Harvey had briefly worked for the Caradonnas and that Harvey knew Hill. The next paragraph stated, "Harvey was convicted of first-degree murder in March for helping Hill plan the robbery. She was sentenced the following month to life in prison without the possibility of parole." The article then stated that the same tape was played at Harveys trial over the objection of defense counsel.
The Internet research article was from the St. Petersburg Times and was titled, "Cell phone trails snare criminals, call or no." The byline was, "Cell tower records can pinpoint a phone owners location for police, whether the phone is used or not." The article went on to say that several Tampa Bay Area killers have been caught because they carried cellular telephones. It stated, "The cell phone records, which document what tower a caller was nearest when he dialed, can put a suspect at the scene of the crime with as much accuracy as an eyewitness. In urban areas crowded with cell towers, the records can pinpoint someones location within a few blocks." The article described several cases where the cellular telephone records had been used, including the case in California of Scott Peterson.
The declaration of No. 2 stated that No. 2 would "shush" the jurors when they began to discuss the case in No. 2s presence, although No. 2 could not recall any particulars of the conversations. It was recalled by No. 2 that jurors would also discuss testimony in the jury room, in particular issues of cellular telephones and cellular telephone towers. No. 2 did not recall seeing any newspapers or Internet research in the jury room.
The final declaration submitted by defense counsel was the declaration of No. 11. The bulk of No. 11s declaration was found inadmissible by the court based on the objection of the prosecution. Paragraph 5 of the declaration was objected to as vague by the prosecution, and the court agreed it was inadmissible. Paragraph 5 described the discussion of possible juror misconduct in the office of defense counsel with No. 5 also present. This paragraph relates instances of juror misconduct, including reading of media reports of the trial, bringing a newspaper article into the jury room and passing it around, a juror doing Internet research, and jurors discussing the case outside of deliberations. No. 11 did not specifically declare that he said these things during the discussion with No. 5 and defense counsel, just that he was part of the discussion. The People filed a declaration from No. 8, No. 11, and No. 2. It was declared by No. 8 that she did not see any newspaper articles about the trial in the jury room nor did she hear anyone talking about any articles. No. 8 did not hear or see anything about Internet research in the jury room. No. 8 said she did not talk about defendants guilt or innocence outside of deliberations and she did not hear anyone else engaging in such discussions.
The prosecutions declaration from No. 11 stated that one juror brought in an article about cellular telephone towers. The juror put the article on the table but it was not touched by other jurors or discussed. No. 11 saw the Fresno Bee newspaper in the jury room once or twice, but No. 11 did not read it and did not hear anyone talk about reading any article about this case. No. 11 did not hear anyone discuss the issue of guilt or innocence except during deliberations. No. 11 told the defense investigator before signing the declaration that No. 11 did not agree with part of the declaration.
The last declaration filed by the prosecution was from No. 2. No. 2 stated that no outside articles were brought into the jury room, nor did No. 2 hear any discussions about newspaper articles. No. 2 heard one discussion by a juror regarding the case outside the courthouse and advised the juror that the conversation should end.
At the hearing on the motion for new trial the court first determined whether an evidentiary hearing needed to be held. The court sustained many of the prosecutors objections to portions of the affidavits. Defense counsel did not dispute these rulings by the trial court. The court went through a discussion of all of the affidavits and made comments that seemed to be bolstering the credibility of the prosecutions affidavits and attacking the credibility of the affidavits submitted by the defense. At the end of this portion of the hearing the court stated, "The Court gives the defendant the benefit of the doubt in interpreting the statements made in the declarations in favor of finding misconduct and conducting an evidentiary hearing will not change the misconduct finding." The court went on to find that the defense did not demonstrate a strong possibility that prejudicial misconduct occurred and thus found the evidence presented to be insufficient to require the court to conduct an evidentiary hearing.
The court then considered the merits of the motion for new trial based on jury misconduct. The prosecutor argued that at most the affidavits demonstrated that a news article from the St. Petersburg Times was brought into the jury room. The prosecutor also stated that when the court assumes all of defendants allegations are true no hearing needs to be held. It was the prosecutions position that even if the St. Petersburg Times article was in the jury room, and even if it was discussed by at least one of the jurors, there is no showing of a substantial likelihood of prejudicial juror misconduct because the evidence in this case was overwhelming as to guilt. The article, as argued by the prosecutor, held nothing new that was not already properly before the jury. The prosecutor detailed the evidence against defendant.
Defense counsel argued that the prosecution was not setting forth the correct standard for the trial court to apply in determining prejudice and submitted the matter on his pleadings.
The court ruled that it was taking into consideration the totality of the surrounding circumstances in determining whether the misconduct resulted in a substantial likelihood of juror bias. The court then detailed the tests that are applied when determining juror misconduct and ruled that it did not find the required prejudice under either test. The court denied the motion for new trial.
DISCUSSION
I. Jury Misconduct
In his opening brief, defendant makes two assertions regarding the claims of jury misconduct. He asserted that the trial court erred in refusing to hold a hearing on whether the court would disclose to the defense contact information of the 10 jurors who stated they did not want to be contacted. Defendant has withdrawn this part of his argument and it has been stricken from his brief. The remaining argument is the court erred in ruling the misconduct was not prejudicial.
Preliminary to the prejudicial error argument, defendant suggests the court erred in not holding an evidentiary hearing on the misconduct that was shown by the admissible affidavits. As a caveat, defendant states that if the courts ruling is interpreted in any way other than that the court found misconduct as alleged but found it to not be prejudicial, reversal is required based on the failure to conduct a timely hearing.
Our interpretation of the record is the court declined to hold a hearing because it was going to give defendant the benefit of the doubt on all assertions made by the defense; having proceeded in this manner, the court did not make any credibility determinations. Thus the court ruled there was no reason to hold an evidentiary hearing to determine the credibility of the jurors because, even assuming defendants assertions of misconduct were true, there was no prejudice from the misconduct that required reversal. Consequently, we will evaluate the arguments on appeal, presuming for the moment the newspaper articles regarding the trial were brought into the jury room, passed around, and discussed. The particulars of the articles were set forth only as to the one article that detailed the defense effort to exclude the 911 call and stated that Harvey had previously been convicted of first degree murder for helping defendant plan the robbery. In addition, based on the courts ruling, we must assume as true the assertion of No. 5 that a juror did weekend Internet research on the use of cellular telephone records and printed out the article, brought it into the jury room and discussed it with other jurors. Finally, we must credit the reports that jurors discussed the case while the trial was in progress and before deliberations began.
"It is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he is sitting." (People v. Holloway (1990) 50 Cal.3d 1098, 1108 (Holloway).) We must determine if this misconduct and the other alleged misconduct, which is presumed prejudicial, has been sufficiently rebutted. The presumption of prejudice is rebutted if after a review of the entire record there is no reasonable probability of prejudice, "`i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (People v. Harris (2008) 43 Cal.4th 1269, 1303.) A review of the entire record includes the nature of the misconduct and the surrounding circumstances. (Ibid.)
"`[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. ([In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter )].)
"`First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (Carpenter, supra, 9 Cal.4th at p. 653.) `Under this standard, a finding of "inherently" likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. Application of this "inherent prejudice" test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information. (Ibid.)
"Second, `even if the extraneous information was not so prejudicial, in and of itself, as to cause "inherent" bias under the first test, the nature of the misconduct and the `totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose. (Carpenter, supra, 9 Cal.4th at pp. 653-654.) `Under this second, or "circumstantial," test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered. "The presumption of prejudice may be rebutted, inter alia, by a reviewing courts determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual" bias. (Id. at p. 654.)" (People v. Danks (2004) 32 Cal.4th 269, 303.)
We begin with the instance of misconduct we find most troubling. The newspaper article of July 17, 2007, was printed in the morning paper during the phase of the trial where evidence and testimony were being presented to the jury. In addition to discussing the admission of the 911 tape, the article went on to state, "Authorities said Hill knew about Caradonnas business from Ceona Ashley Harvey, who had worked there briefly. Hill and Harvey knew each other through the marriage of relatives. [¶] Harvey was convicted of first-degree murder in March for helping Hill plan the robbery. She was sentenced the following month to life in prison without the possibility of parole."
In Holloway, supra, 50 Cal.3d 1098 the defendant was tried and convicted of the first degree murders of sisters Diane Pencin and Debra Cimmino (Debbie). The sisters were living together at the time of the killing. The defendant asked his friend Cruz to lie to police about defendants whereabouts at the approximate time when the murders took place. Cruz initially lied and told police he was with defendant and dropped him off at his mothers house at 8 a.m. on March 20; later Cruz told the police the truth, that he dropped defendant off at his fathers house at 4 a.m. (Id. at pp. 1104-1105.)
The defendant was interviewed, and he said he met Debbie in junior high school, had written her letters, and had visited with her at his fathers house, but he was not in love with her. The defendant told officers that Cruz dropped him off at his mothers house about 7 a.m. on March 20. In a later interview, after defendant had learned that Cruz told police the truth, defendant accounted for his time after 4 a.m. on March 20, stating he was on the victims street when he heard the sound of breaking glass and a woman screaming. The defendant said he had been to Debbies house numerous times, but had not been there for a month. "At the end of the interview defendant admitted he had gone to Debbies house to use the telephone. Both sisters answered the door. He remembered nothing else except that Debbie was screaming in the carport." (Holloway, supra, 50 Cal.3d at p. 1105.)
The defendants fingerprints were found on the outside of Debbies car (Debbies body was found in the backseat of the car), inside the car on the backseat backrest, on the telephone on the bed where Dianes body was found, and on the doorjamb of another bedroom. (Holloway, supra, 50 Cal.3d at p. 1105.)
At the time of trial, the defendant was on parole from prison based on his assault of a woman with a hammer. The trial court ruled that the defendants prior criminal history was not admissible. On the second day of trial, one juror read an article describing the defendants criminal record for assaulting the woman with the hammer. The juror did not tell other jurors about the article until after deliberations. When the information came to the trial courts attention, it held a hearing and found there was probably no misconduct and there was no indication of prejudice to the defendant. (Holloway, supra, 50 Cal.3d at pp. 1106-1108.)
The Supreme Court disagreed with the trial courts decision, noting that "`[t]he ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror." (Holloway, supra, 50 Cal.3d at p. 1109.) Next, the court noted that the prejudice analysis is less tolerant then a harmless error analysis for ordinary error at trial. "`When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendants detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial." (Id. at p. 1110.)
The Supreme Court found the misconduct was prejudicial. "The content of the article was extremely prejudicial; it revealed information about defendants prior criminal conduct that the court had ruled inadmissible because of its potential for prejudice. The court and counsel had gone to great lengths to avoid having the jury learn of defendants prior conviction for having assaulted a woman with a hammer. Their efforts were to no avail as to one juror—a fact they did not learn until after it was too late to take any curative steps." (Holloway, supra, 50 Cal.3d at p. 1110.)
The Holloway court found the situation in two appellate court cases to be similar. The first similar case was People v. Thomas (1975) 47 Cal.App.3d 178. In Thomas four jurors read a newspaper story before testimony began that identified the case by name and stated that the defendants alleged partner in the crime had pleaded guilty to the crime and had been sentenced. The article was brought to the attention of the court during trial, and the court questioned the jurors. The court denied a motion for mistrial. The appellate court reversed, finding that the reading of the newspaper article "seriously jeopardized the fairness of the trial" and "the likelihood of prejudicial effect upon the minds of the few jurors who saw the article was obviously substantial." (Id. at pp. 181-182.)
The second similar appellate court case cited in Holloway is People v. Andrews (1983) 149 Cal.App.3d 358, 364.) Andrews was on trial for numerous crimes. During his trial an article appeared in the newspaper stating that the robbery-beating trial was underway. The article detailed that the defendant was also facing felony charges in another city and that defendants wife, a codefendant in the case on trial, had already pleaded guilty to a charge of armed robbery and had been sentenced to prison. After the article appeared in the newspaper, defense counsel moved for a mistrial and requested that the jurors be questioned about whether they had read the article. The court denied the motion, but the article was kept as an exhibit. The article was mistakenly sent to the jury room and came to light when the jury submitted a question relating to a statement made in the article. The court admonished the jury and ordered it not to consider in any manner the newspaper article in their deliberations. The trial court denied defense counsels motion for mistrial. A subsequent motion for new trial based on jury misconduct was supported by affidavits from 10 jurors, with six of the jurors stating they had read the article. The motion was denied. (Id. at pp. 362-363.)
The appellate court reversed the trial courts rulings. It noted evidence that defendant was facing other felony charges would be inadmissible evidence; also inadmissible and prejudicial is evidence of a codefendants guilty plea. (People v. Andrews, supra, 149 Cal.App.3d at p. 364.) The court held, "the jury affidavits failed to rebut the presumption of prejudice and, because of the potentially injurious nature of the inadmissible evidence given to the jury, we cannot be assured that the prosecutions burden had not been lightened. It follows, consequently, that we cannot say appellant did not suffer prejudice." (Id., at p. 366.)
We find the article here, stating that Harvey had previously been convicted of first degree murder for helping defendant plan the robbery, to be similarly injurious as the articles requiring reversal in the three previously discussed cases. The evidence presented in this trial to link Harvey to the murder was that she had worked for the Caradonnas, she knew defendant, she asked another employee about how much money Sebastian carried, and she exchanged several telephone calls with defendant in the days leading up to and following the murder, including the one telephone call the night before the murder that was recorded on the cellular tower near the Caradonnas residence. The focus of the evidence at this trial was not on Harvey; Harveys statements (admitted at her trial) were not admitted at defendants trial. In the trial of defendant, the evidence that Harvey was directly involved in the murders was not particularly strong, yet the article informed the juror(s) who read it that Harvey had been convicted of first degree murder. Thus, the jury was aware that a codefendant, linked to the crime in a much less significant way than the current defendant, had already been found guilty. Even more injurious is the portion of the article that states she was found guilty for helping defendant plan the robbery, directly imputing her guilt as arising from defendants involvement and clearly inferring that she merely helped defendant.
The trials of defendant and Harvey were severed based on Harveys statements that were not cross-admissible against defendant.
The People argue that the extraneous evidence obtained by a juror in In re Carpenter (1995) 9 Cal.4th 634 was more prejudicial than the extraneous information in this case, yet the California Supreme Court in Carpenter reversed the trial courts finding of inherent prejudice.
The charges against Carpenter were filed in two separate cases, one in Santa Cruz Superior Court and one in Marin Superior Court. Carpenter was alleged to be the trailside serial murderer. The Santa Cruz case was tried first, and he was convicted of two murders, an attempted murder, various sex crimes related to the murders, and other enhancements. He was sentenced to death. At his next trial in Marin Superior Court, the case that was the subject of the appeal, Carpenter was tried and convicted of multiple murders and related crimes and enhancements. The trial court ruled that the prosecution could present evidence of the facts underlying the crimes in Santa Cruz on the theory that the same person committed all of the crimes, with the exception that the prosecution could not present evidence of one of the murders or evidence of the actual convictions and death sentences. During trial, evidence of the Santa Cruz crimes was "featured prominently" in the case. (In re Carpenter, supra, 9 Cal.4th at pp. 640-641.)
After the Marin County trial, it was discovered that during trial one of the jurors had learned from newspaper accounts that defendant had been convicted and given the death sentence for the Santa Cruz murders. Carpenter filed a petition for a writ of habeas corpus in the trial court challenging the case based on jury misconduct. The superior court granted the petition and vacated the judgment, finding the improper knowledge obtained by the juror was highly prejudicial and lightened the prosecutions burden of proof. (In re Carpenter, supra, 9 Cal.4th at pp. 644-645.)
The Director of Corrections appealed, and the California Supreme Court reversed the trial courts grant of relief and provisionally denied Carpenters request for relief.
Respondent here submits that "[i]f knowing that the defendant himself had already been convicted of several nearly identical murders and sentenced to death was not so inherently prejudicial as to require a new trial" then the situation here could not be inherently prejudicial. Respondent fails to discuss the procedural posture of the matter in Carpenter, particularly that the California Supreme Court did not make its decision based on the complete trial record but held that Carpenters petition was denied without prejudice to filing a new petition in the California Supreme Court after a complete record had been prepared. The California Supreme Court expressly noted that the certified trial record was not before it and "the record of the trial ... is different, and must be considered before the merits of Carpenters underlying claim can be finally determined." (In re Carpenter, supra, 9 Cal.4th at p. 659.)
Carpenter is distinguishable based on the fact that in Carpenter the reviewing court did not have the entire record to review. Here, we have reviewed the entire record and find the matter inherently prejudicial in light of that record. Another distinguishing factor in Carpenter is that evidence of the Santa Cruz County crimes was extensively presented in the Marin County case and the jury was required to review that evidence as part of its determination whether defendant committed the current crimes. In contrast, here the evidence presented relating to Harvey was not a centerpiece of the trial yet, according to the affidavit of No. 5, one or more jurors learned that Harvey had been convicted because she helped defendant plan the robbery.
The article stating that Harvey was previously convicted of first degree murder for helping defendant plan the robbery, when judged objectively, is inherently and substantially likely to have influenced a juror.
We do not find that the same holds true for the article printed from the Internet regarding the use of cellular telephone records to convict defendants. The evidence at trial regarding cellular telephone records was extensive, with an expert for the People and an expert for the defense discussing how cellular telephone calls can be traced to a particular area. Both experts agreed that normally a cellular telephone call will bounce off of the closest tower unless there is interference based on terrain, physical barriers, or call traffic at the time the call is placed. The article did not contradict this testimony. For example, the article stated that "[i]n urban areas crowded with cell towers, the records can pinpoint someones location within a few blocks." While the receipt of this evidence was misconduct, a review of the entire record demonstrates this misconduct alone does not result in a showing of juror bias.
In addition, the allegation of jury misconduct that one or more jurors discussed the case before deliberations began, when made without more details as to the extent of the discussions or the nature of the discussions, fails to meet the standard requiring a new trial.
Although we have determined that the content of the newspaper article was inherently and substantially likely to have influenced a juror, rather than ordering that defendant is entitled to a new trial we find that under the circumstances presented here defendant is entitled to a contested hearing on the motion for new trial. This is so because the trial court assumed that all of defendants allegations were true and, having so assumed, failed to make any credibility determinations as to the truth of the allegations. Because we have found that one of the allegations, if true, was inherently likely to have influenced a juror, the trial courts assumptions can no longer support the denial of the new trial motion. Because the affidavits present a material conflict whether an article was brought into the jury room, the People as well as defendant are entitled to a full evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, including permitting the parties to call jurors to testify at such a hearing. This is not simply a fishing expedition but a case where the defense "has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (People v. Hedgecock (1990) 51 Cal.3d 395, 419.) Should the credible evidence demonstrate misconduct and prejudice, the People have the burden to rebut prejudice. Although we have found the evidence of the cellular telephone articles and discussion by jurors of the case outside of deliberations to not amount to prejudicial misconduct on the record before us, if further evidence relating to these two areas of misconduct is further developed and found credible at the evidentiary hearing, the trial court should then reassess the prejudice in light of the new evidence. Accordingly, we will remand this matter to the trial court for an evidentiary hearing in accordance with the views we express here.
As noted in the facts for the motion for new trial previously set forth, the court made comments at the hearing suggesting it disbelieved some of the allegations presented by the defense and gave more credence to the Peoples affidavits. While the court ultimately gave the defendant the benefit of the doubt, it is clear the court never actually determined credibility.
II. Evidence of Defendants Prior Robbery Conviction
Prior to trial, defendant made a motion to exclude his prior felony conviction for bank robbery occurring 13 years prior to trial. The motion was made to exclude the prior conviction for all purposes, including impeachment. The prior conviction was for an armed bank robbery where defendant was wearing a bandana over his face and had gloves on. Defense counsel argued the prior conviction was so similar to the current offense the jury might unfairly use the conviction to show propensity or modus operandi. The court questioned the People whether they were going to put on evidence to show the similarities between the prior conviction and the current crime. The district attorney said he was not going to offer such evidence because the crimes were not similar; it was only going to be offered by the district attorney as impeachment because it was a crime involving moral turpitude. The court ruled that if defendant takes the stand to testify on his own behalf he could be impeached with the prior conviction.
Prior to calling defendant to testify, defense counsel asked the court if the court was going to allow evidence of the use of the mask during defendants prior robbery on the issue of identity. Defense counsel argued the conviction was old and the use of a hood and a mask are not enough by themselves to indicate a pattern of any kind.
The People argued that the prior conviction in 1994 involved the same scenario as the current case in that defendant was wearing a bandanna and gloves during the perpetration of the crimes. The People stated that the crimes were similar. The court held it would permit the use of the prior felony as well as the use of the fact that defendant wore a mask and gloves during the perpetration of the robbery. The court ruled that this evidence was appropriate and relevant as to the issues of identity, planning and modus operandi.
Defendant testified on his own behalf and admitted the prior felony bank robbery conviction. He could not remember if he was wearing something to hide his face and did not remember if he wore anything on his hands, but he "most definitely" believed he had something on his face during the robbery. On cross-examination, defendant said he did not remember who took the money during the robbery and did not recall if he had something on his face but he was sure he did. He said he did not remember wearing gloves, but if the police report contained evidence that he did, the report must be true.
During closing argument, the prosecutor detailed the evidence against defendant. He listed many pieces of evidence, including the manner in which the crime was carried out. In describing the manner in which the crime was committed he said, "Hes used the bandanna before, hes used gloves before, and hes armed." In discussing defendants testimony, the prosecutor mentioned defendant could not remember the particulars about the prior bank robbery and stated this went to the question of defendants honesty on the stand.
Defense counsel mentioned defendants prior conviction, stating that defendant has been off parole since the year 2000, has not engaged in criminal activity since that time, and had the desire and guts to come into court and admit his prior convictions, having paid his debt to society.
During instructions to the jury, the jury was instructed it may consider whether a witness has been convicted of a felony as one of the many factors in determining the credibility of the witness. The court also instructed the jury that if it finds that a witness has been convicted of a felony it may consider that fact in evaluating the credibility of the witnesss testimony. "The fact of a conviction does not necessarily destroy or impair a witness credibility. It is up to you to decide the weight of that fact and whether the fact makes the witness less believable."
Defendant contends the trial court erred in admitting the prior conviction for purposes of identity, planning and modus operandi. Defendant does not claim error in the admission of the prior conviction for impeachment purposes. In addition, defendant claims the trial court erred in not limiting the prior conviction evidence to a determination of his credibility and the instructions allowed the jury to consider the prior conviction for credibility (a proper use), identity, modus operandi, planning, and propensity. Defendant claims that in this "weak prosecution identification case," the error in admitting the evidence for more than credibility and in failing to limit the use of the evidence to credibility only was prejudicial.
"Evidence Code section 1101, subdivision (b), permits the admission of other-crime evidence against a defendant `when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ... ) other than his or her disposition to commit such an act. Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendants bad character or criminal propensity." (People v. Catlin (2001) 26 Cal.4th 81, 145.)
We will assume for the sake of argument that the evidence of the prior conviction was erroneously admitted to prove identity, modus operandi, and planning. Defendant does not challenge its admission for purposes of impeachment. Error in admitting other crimes evidence is subject to the Watson (People v. Watson (1956) 46 Cal.2d 818) standard of review, and we must determine if it is reasonably probable defendant would have obtained a more favorable outcome had the error not occurred (People v. Malone (1988) 47 Cal.3d 1, 22).
The jury was properly aware defendant had a prior felony conviction. Although the jury instructions did not expressly limit the use of defendants prior conviction solely to the question of defendants credibility, the instructions spoke of the use of prior convictions only in the context of judging credibility and did not speak of any other way the prior conviction could be used. The prior conviction was not presented during the Peoples case-in-chief. The cross-examination of defendant by the prosecution as to his recollection of the facts regarding the prior robbery was clearly an attempt to attack his credibility. The prosecution urged the jury to utilize this evidence to judge defendants honesty, a proper use.
In his reply brief defendant posits why the unlimited admission of his prior conviction resulted in prejudice. "The problem is the unchecked and unlimited thought process, and emotional and subjective impact, such as, for but one example: `What comes to consciousness is that appellant was a robber before and is accused of a robbery now, and he apparently has a propensity to rob. That he "got away with it" for thirteen years suggests there were other robberies, in fact there probably were, and he should be convicted and sent away for as long as possible. In any event someone has to pay for this tragedy and this man is evil, and since he did it before he probably did it again, as confirmed by his garb. The gloves and bandana are a problem because they give a false appearance of congruent identity. The juror might even assume that because the defendant was a convicted robber, he did not deserve much benefit of doubt. The evidence was pointless and prejudicial and yet the instruction permitted, even encouraged, its unchecked consideration for all sorts of improper uses."
We disagree. There was nothing in the evidence, instructions or argument to the jury suggesting that defendant got away with a robbery 13 years earlier. The opposite is true: he was convicted of the robbery. There is nothing in the trial suggesting that defendant had perpetrated additional robberies in the interim period; the opposite is true. Defendant testified that he successfully completed his parole. Defendant detailed his job record beginning from when he got out of prison, leading up to the full time job he had held for approximately two years at the time of his arrest. The record suggests, and defense counsel argued, that defendant had paid his debt to society and was currently a law abiding citizen. We refuse to find that a jury would disregard the instructions of reasonable doubt and convict defendant merely because he is "evil" and someone has to pay for this tragedy.
This leaves us with the problem of "congruent identity" based on the use of a bandana and a mask in the previous bank robbery and the current murderous home invasion robbery. First, we believe that masking ones face and using gloves, without more, are fairly pedestrian facts that do not establish a congruency leading to identification of a perpetrator. In addition, there was strong evidence pointing to defendant as the perpetrator. Cellular records placed him in the area the night before the murder at the approximate time when the home invasion was carried out the next night. His car was seen parked near the Caradonnas residence the night of the home invasion and murder. Veronica positively identified him as the perpetrator. Gloves were found in one of his vehicles. He communicated with and was seen in the company of Harvey, a former employee of the Caradonnas who had knowledge regarding their practice of paying their employees in cash.
We find any error in not expressly limiting the use of the prior robbery conviction for impeachment purposes only was harmless.
III. Robbery Sentences
The middle term punishment for residential robbery is four years. The middle term punishment for residential robbery in concert is six years. (Pen. Code, § 213.) The trial court imposed punishment on the two robbery counts utilizing the harsher middle term for robbery in concert. Defendant contends and respondent concedes the trial court was not authorized to impose sentence based on a robbery in concert because an "in concert" allegation was neither alleged nor found to be true beyond a reasonable doubt by the jury.
DISPOSITION
The matter is remanded to the trial court for a new evidentiary hearing on the motion for new trial based on juror misconduct. If, after the evidentiary hearing, the trial court denies the motion for new trial, the judgment shall be affirmed except as to sentencing on counts 2 and 3. Regarding those counts, the trial court is directed to amend the abstract of judgment to reflect the middle term of four years for residential robbery. This disposition is not meant to suggest how the trial court should rule on the motion for new trial, except that the trial court must proceed in accordance with our discussion herein.
WISEMAN, J.
HILL, J.