Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE268511, Allan J. Preckel, Judge.
McINTYRE, J.
A jury convicted Michael Jennison of second degree murder in the killing of his real estate agent, James Magot. It also found true allegations that Jennison intentionally and personally discharged and personally used a firearm causing Magot's death. The court imposed a mandatory sentence of 40 years to life. (Pen. Code, §§ 190, subd. (a) & 12022.53, subd. (d).)
The sole issue on appeal is whether the trial court erred in denying Jennison's motion for new trial based on jury misconduct. The alleged misconduct consisted of the jury members reading a newspaper article referring to suppressed evidence which the court inadvertently sent to the jury room during deliberations. We conclude there was no misconduct and, in any event, no prejudice. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although Jennison's claim of misconduct focuses on events that occurred on the last day of jury deliberations, we also summarize the facts surrounding the crime as relevant to the question of prejudice.
The 38-year-old Jennison had lived with his grandparents in their Lakeside condominium for a number of years. Following the death of Jennison's grandfather in 2002 and his grandmother in 2006, the property entered probate with Jennison as executor. The probate attorney hired Magot to sell the condo. Jennison wanted to sell the property quickly because it had entered foreclosure. He was frustrated with Magot due to the lack of sales activity. He also felt that Magot ridiculed him. Jennison expressed his frustration with Magot to his neighbor, James O'Kane, who encouraged Jennison to fire Magot. Jennison responded that Magot said he could not be fired because it was a probate sale.
Jennison worried that payment of his grandmother's hospital bills would exhaust the proceeds of the condo sale. O'Kane hoped the sale would generate enough funds to help Jennison with his intended move to Florida. He made two offers to purchase the condo. Each offer included cash "under the table" as part of the purchase price. Magot rejected both offers. After the second rejection, Jennison told O'Kane that they had been wrong that his equity would be wiped out by the medical bills. At that point, O'Kane offered to loan Jennison $3,000 to keep the condo out of foreclosure. Jennison declined the offer.
O'Kane arranged to meet with Jennison and Magot on the afternoon of February 1, 2007, to make a third offer to purchase the condo. Jennison told him that Magot also planned to make an offer, but O'Kane was confident that Jennison would accept his offer. When O'Kane arrived at the condo, Magot confronted him, placed his hands on O'Kane's shoulders, and started to escort him out the door. O'Kane told Magot to let go and he did. Magot wanted to talk with Jennison outside, but Jennison refused. Both men were aggressive and Jennison was getting increasingly irritated. He insisted that he wanted to accept O'Kane's offer. A fight ensued, with Jennison initially pinning Magot against the wall with his hands around Magot's throat. The two men ended up on the floor with Magot on top holding Jennison in a headlock. O'Kane broke up the fight. While Jennison was somewhere behind him, O'Kane turned to ask Magot if he was hurt. A shot rang out and Magot fell to the floor. O'Kane saw Jennison standing close to Magot holding a handgun. Jennison leaned over, pointed the gun at Magot's head, and fired again. O'Kane screamed, "'Call 911," and Jennison responded, "He's dead." O'Kane ran out the door and signaled Jeff Hart, another resident, to call 911. Hart saw Jennison drive away from the condominium complex.
The defense introduced evidence describing Jennison's abusive and isolated upbringing and his paranoid adult personality. Defense counsel argued that this background affected Jennison's mental state at the time of the homicide.
Shortly before trial, the court granted a defense motion to suppress evidence obtained in the traffic stop that resulted in Jennison's arrest in Arizona two days after the killing. On Monday, August 18, 2008, the San Diego Union-Tribune published the following article regarding the suppression hearing:
"Evidence from search inadmissible, judge says
"East County Courts: Guns, ammunition and cash seized in an improper traffic search can't be used as evidence in the trial of a Lakeside man charged with killing his real estate agent, a judge ruled Friday.
"Michael Ray Jennison, 38, is charged with murder in the Feb. 1, 2007, slaying of real estate agent James Magot in a Lakeside condominium Jennison inherited from his grandmother.
"The effect of the ruling by Judge Allan J. Preckel to exclude evidence is unclear because defense lawyer Brian White told the judge 'there's no dispute Mr. Jennison shot Mr. Magot with a handgun.'
"Magot, 64, died of two shots to the head. A neighbor testified at an October hearing that he saw Jennison shoot Magot after an argument over the sale of the condominium.
"At issue during the trial will be Jennison's state of mind at the time of the shooting and how that affected his actions, White said.
"The evidence the judge excluded was seized by Arizona sheriff's deputies when they stopped and arrested Jennison near Globe, Ariz. Preckel ruled last week that deputies had no probable cause to search Jennison's car or clothing because there was no evidence that he violated traffic laws."
The court also granted the defense motion in limine to exclude from the prosecution case-in-chief the items seized from Jennison and his vehicle. The court's opening jury instructions included the following admonition: "You must not allow anything that happens outside of the courtroom to affect your decision unless I tell you otherwise. During the trial, do not read, do not listen to, do not watch any news report or commentary about this case. If you see a headline that may reference this case, turn the page. If you're watching the news and it seems that there's a snippet of this case being presented, grab that remote from your spouse real quick and channel surf."
The court personally prepared material for the loose leaf notebook that accompanied the jury into the jury room during deliberations. While doing so, the court inadvertently stapled a copy of the Union-Tribune article to the list of trial exhibits it placed in the notebook.
Jury members did not notice the article until the last day of deliberations. The jury had requested read-back of O'Kane's testimony. Before the reporter read back cross-examination of O'Kane, the jury members voted unanimously to convict Jennison of second degree murder. While the reporter was reading back the remainder of the O'Kane testimony, a juror found the newspaper article and passed it around for the other jurors to read. After brief discussion, the jury sent the following note to the court: "We would like to know if the Exhibit 'Evidence from search inadmissible, judge says' article was supposed to be in the jury binder? Was this on purpose? Was it accidentally put in the file?" Without waiting for defense counsel to arrive from another court appearance, the court conferred with the prosecutor and sent the following reply to the jury: "DO NOT CONSIDER OR DISCUSS THE CONTENTS OF THAT ARTICLE, WHICH WAS ACCIDENTALLY AND UNINTENTIONALLY STAPLED TO THE SUMMARY LIST OF EXHIBITS." The jury took another vote immediately after receiving the note. It found Jennison guilty of second degree murder and found true the special gun use allegations.
After polling the jury and recording the verdict, the court and counsel questioned the jury foreperson in chambers. The foreperson explained that although the verdict forms were not completed before jury members discovered the newspaper article, the jury had already taken a vote and reached a unanimous verdict on second degree murder. All the jurors read the article. The foreperson stated that even though the article did not change anyone's vote, the jury members "were still interested in knowing whether or not the article was supposed to be in the binder, just in case someone wanted to bring a certain point out because of it. We didn't want to assume it was supposed to be there... just in case."
The court and counsel questioned each remaining juror the following day based on the following questions:
"1. When and how did you personally become aware of the news article being in the jury room?
"2. Did you read the article yourself?
"3. What was the status of deliberations just before any of the jurors became aware of the article?
"4. Had the jury reached any unanimous verdicts before you read the article and/or heard any discussion of it?
"5. If so, what were those verdicts?
"6. Did the news article affect you in arriving at verdicts?
"7. Do you believe the news article affected any of the other jurors in arriving at verdicts?"
Each of the jurors responded that he or she had read the article after the unanimous preliminary vote for second degree murder. Each denied that the article affected his or her final vote. None believed the article affected any juror's verdict.
Jennison unsuccessfully moved for new trial on grounds of jury misconduct.
DISCUSSION
I. Applicable Legal Principles
The characterization of these events as jury misconduct or the erroneous admission of evidence is potentially significant because different standards of review apply. (People v. Clair (1992) 2 Cal.4th 629, 668 (Clair).) The standard is stricter for jury misconduct than for ordinary error. (Ibid.)
A. Motion for New Trial:
"'When a verdict has been rendered or a finding made against the defendant,' he may move for a new trial. (Pen. Code, § 1181.) Among the grounds on which he may rest is that 'the jury has received... evidence out of court....' (Id., subd. 2.) A court may grant such a motion if and only if the defendant demonstrates the existence of an error or other defect that is reversible. [Citation.]" (Clair, supra, 2 Cal.4th at p. 667.) "[W]ith ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted." (Id. at p. 668, citing People v. Cooper (1991) 53 Cal.3d 771, 836 (Cooper).) "On appeal, a trial court's ruling on a motion for new trial is subject to review for abuse of discretion. [Citations.]" (Clair, supra, 2 Cal.4th at p. 667.)
B. Juror Misconduct:
Juror misconduct occurs when jurors obtain information from sources outside the trial. (People v. Zapien (1993) 4 Cal.4th 929, 994.) Thus, when a juror reads a newspaper article that relates to the case, it raises a presumption of prejudice which requires a new trial unless the presumption is rebutted. (People v. Holloway (1990) 50 Cal.3d 1098, 1108 (Holloway), disapproved on a different ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "'The presumption of prejudice is an evidentiary aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Code section 1150 erects, and it seeks to lower that barrier somewhat.'" (Holloway, supra, 50 Cal.3d at p. 1109, quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416.) Evidence Code section 1150, subdivision (a) describes the type of evidence admissible to test the validity of a verdict and excludes evidence offered "to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
"[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. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (E.g., [Holloway], supra, 50 Cal.3d at pp. 1110-1112; People v. Marshall [(1990) 50 Cal.3d 907,] 951-952.) Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (E.g., In re Hitchings [(1993) 6 Cal.4th 97,] 121.) The judgment must be set aside if the court finds prejudice under either test." (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).)
In an appeal challenging denial of a motion for new trial based on juror misconduct, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 582; compare People v. Ault (2004) 33 Cal.4th 1250, 1263-1265 [applying abuse of discretion standard on appeal from order granting new trial].)
II. Jennison Suffered No Prejudice From The AllegedJuror Misconduct
We reject Jennison's argument that he was prejudiced by jurors reading the Union -Tribune article during deliberations. We begin with the observation that "jury misconduct" mischaracterizes what occurred in this case. The court's inadvertent inclusion of the newspaper article in the material sent to the jury room was more in the nature of erroneous admission of evidence than jury misconduct. (See Cooper, supra, 53 Cal.3d at p. 836; see also Clair, supra, 2 Cal.4th at pp. 667-668.) In Cooper, the jury reviewed a transcript relating to an earlier prosecution which referred to the defendant's complaints of headaches and hallucinations. The exhibit had been inadvertently admitted into evidence at the defendant's request. (Cooper, supra, 53 Cal.3d at p. 834.) Once alerted to the problem, the court struck the transcript, admonished the jury not to consider it, and questioned each juror individually regarding possible prejudice. (Ibid.) On appeal, the Supreme Court ruled that the jury did nothing improper because the transcript had been admitted into evidence. (Id. at p. 835.) It explained that "[t]he fact that the evidence was inadvertently admitted and then withdrawn [did] not elevate the error to one of misconduct." (Id. at p. 836.) In Clair, the clerk inadvertently sent an unredacted audiotape and transcript into the jury room in the mistaken belief they had been received in evidence. The tape and transcript contained references to two crimes allegedly committed by the defendant. (Clair, supra, 2 Cal.4th at p. 665.) The trial court denied defendant's motion for new trial on grounds the prosecution rebutted the presumption of prejudice. (Id. at p. 667.) Relying on Cooper, the Supreme Court in Clair held that the trial court mischaracterized the jury's receipt of the unredacted tape and transcript as misconduct. (Clair, supra, 2 Cal.4th at pp. 667-668.) It affirmed, ruling that the mischaracterization was not significant and noting that the trial court had "applied a standard that was more favorable to [defendant's] position than the appropriate test." (Id. at p. 668.)
Jennison argues that Cooper is distinguishable from the case before us. He cites as a key distinction the fact that "the court never entered the [newspaper] article into evidence as an exhibit, but mistakenly included it with other documents the court provided [to] the jury." Relying on Holloway, supra, 50 Cal.3d at pages 1107-1110, he also contends that "prejudice in the present case is presumed because the jury read a newspaper article about the case during deliberations." We are unpersuaded.
However, in this case as in Clair, the distinction between misconduct and ordinary error is not significant for purposes of review. Even if we were to find that the jury committed misconduct by reading what was obviously a newspaper article after being instructed not to do so, we conclude on this detailed record that the prosecution rebutted the presumption of prejudice. In reaching this conclusion, we do not consider the jurors' responses to questions 6 and 7 of the court's questionnaire. As the parties acknowledge, those questions asked for the jurors' subjective reactions to the newspaper article and therefore violate Evidence Code section 1150, subdivision (a).
We apply the two-part test for prejudicial misconduct. (Carpenter, supra, 9 Cal.4th at p. 653) First, viewed objectively, there is no evidence that the Union-Tribune article was inherently and substantially likely to have influenced the jurors in this case. It was undisputed that Jennison killed Magot. The article provided no information on the contested issue of Jennison's mental state. The jury had already heard evidence suggesting that Jennison fled the scene of the crime. The fact that guns were found in Jennison's car was of little consequence in light of evidence that guns were also found in a search of the condo.
Second, considering the nature of the misconduct and the surrounding circumstances, there is no evidence that it was substantially likely that the jurors were actually biased against Jennison. Upon learning that it had inadvertently sent the article into the jury room, the court immediately admonished the jury to disregard it. When questioned by the court and counsel, the jury foreperson and individual members of the jury were consistent in stating that the jury reached a unanimous verdict for second degree murder before any of the jurors read the article. The jury returned the same final verdict after reading the article and being admonished to disregard it. These objective facts amply support our conclusion that the prosecution successfully rebutted the presumption of prejudice.
Accordingly, the trial court did not err in denying Jennison's motion for new trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.