Opinion
A128629
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE STRAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR244704)
Defendant was convicted of arson and murder after he set fire to the home of his girlfriend's parents, fatally trapping her mother inside. The trial court admitted evidence demonstrating defendant had engaged in similar conduct with respect to an earlier girlfriend. In addition, after the trial ended a juror reported that several other jurors had mentioned defendant's failure to testify during jury deliberations. Defendant contends the evidence of his earlier threats and violence should not have been admitted as prior uncharged conduct and the jury committed prejudicial misconduct. We affirm.
I. BACKGROUND
Defendant was charged in an information, filed March 26, 2008, with murder (Pen. Code, § 187, subd. (a)) and arson of an inhabited structure (Pen. Code, § 451, subd. (b)). As a special circumstance, the information alleged the murder was committed while defendant was engaged in arson. (Pen. Code, § 190.2, subd. (a)(17).) It also alleged defendant had been convicted of two prior serious felonies. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667.)
The evidence at trial demonstrated that, at the time of the killing on July 7, 2007, L.F. had been in a relationship with defendant for three to four years, living with him and frequently using methamphetamine with him. Eventually, defendant became physically abusive, and L.F. attempted to leave him. On July 6, defendant and L.F. had a violent argument when L.F. refused to return home with him, during which defendant threw her against a wall. The next day, defendant told L.F. he would "get you and your whole family, starting with your family first." That night, defendant set fire to the home of L.F.'s elderly parents. Her mother was unable to escape and died of smoke inhalation.
The prosecution was permitted to call three witnesses to testify about similar conduct by defendant 10 years earlier when another girlfriend, M.E., ended their relationship, the trial court later instructing the jury the evidence was admitted for the limited purpose of proving defendant's motive and intent. M.E. testified she dated defendant several years from approximately 1995 to 1997, and allowed him to live in her home. When she tried to break off the relationship, defendant became "violent." After he hit her "a couple of times" and she learned he had told another person he was going to kill her, she called the police. While the police were at her home, defendant "whizz[ed] by," driving her car, and crashed the car into her neighbor's home. When the police examined the car, they found the component parts of an explosive device. Somewhat later, M.E. found out defendant had told another person he was going to kill her and her son and blow up her house. Defendant was convicted of making this threat.
One of defendant's acquaintances at this time, L.D., testified she, defendant, and her boyfriend used methamphetamine together. When she first met defendant, he showed her a collection of weapons. The last time L.D. saw defendant, he came to her house, looking as though he was under the influence of methamphetamine. Defendant pushed his way into the home, saying he needed to use the telephone. Speaking with M.E.'s son on the phone, defendant said he was "coming over" to "blow them up." Defendant had "some like electrical thing" in his hand and claimed to have explosives in his trunk that he intended to use on his girlfriend's home.
A former police officer testified that in 1997 he was called to M.E.'s home. As he was driving away after investigating the call, defendant passed him driving M.E.'s car, which she had reported stolen. After a high-speed chase, defendant crashed the car into a retaining wall and parked cars near M.E.'s house. He was uncooperative and belligerent, yelling and cursing at the officer. When the officer searched the car, he found a homemade explosive device.
The jury convicted defendant of first degree murder and arson, but it found the special circumstance allegation not true. Defendant was sentenced to a term of 75 years to life in prison.
A few months after the end of trial, defense counsel filed a motion for a new trial on grounds, among others, of jury misconduct. The motion was accompanied by a declaration of counsel summarizing his conversations with a juror. According to counsel, the juror said that several times during deliberations one or another of the jurors brought up defendant's failure to testify, suggesting that an innocent person would have testified. The juror said he reminded the jurors not to consider the failure to testify, but the issue continued to arise.
The court held an evidentiary hearing on the motion, taking testimony from the juror mentioned in counsel's declaration. The juror generally confirmed the content of counsel's declaration, telling the court that defendant's failure to testify was mentioned between six and twelve times during jury deliberations, by as many as half of the jurors. About one-quarter to one-third of the remarks included the view that "if [defendant] was innocent he would have testified." Each time the issue arose, the juror reminded his fellow jurors that defendant had a right not to testify. The jurors "never spent a great bit of time on this issue. I mean, it was always brought up, and it seemed to derail itself usually within three or four minutes. . . . because we had, you know, other issues." None of the jurors suggested they should return a verdict of guilty because the defendant did not testify.
The jurors deliberated over parts of four days. The remarks occurred most frequently on the first day of deliberations, less so on the second day. As the juror said, "day one was pretty rough for us," but "[t]he last two days it didn't seem to be an issue" and "wasn't discussed." The last two days were taken up exclusively with deliberations regarding the evidence.
Although the trial court found "clear[]" juror misconduct, it declined to require testimony from other jurors and denied the motion for a new trial, finding the misconduct not prejudicial on the basis of "all of the evidence adduced during the trial."
II. DISCUSSION
Defendant contends the trial court erred in denying his motion for a new trial on grounds of juror misconduct and in admitting the prior uncharged conduct evidence of his threats and violence against the prior girlfriend. A. Jury Misconduct
"The Fifth Amendment to the federal Constitution provides that no person 'shall be compelled in any criminal case to be a witness against himself.' . . . The right not to testify would be vitiated if the jury could draw adverse inferences from a defendant's failure to testify. Thus, the Fifth Amendment entitles a criminal defendant, upon request, to an instruction that will 'minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.' " (People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425.) A juror's violation of an instruction not to consider the defendant's failure to testify constitutes misconduct. (Id. at p. 1425.)
"When the record shows there was juror misconduct, the defendant is afforded the benefit of a rebuttable presumption of prejudice. [Citations.] This presumption is provided as an evidentiary aid to the defendant because of the statutory bar against evidence of a juror's subjective thought processes and the reliability of external circumstances to show underlying bias. [Citations.] If a review of the entire record shows no substantial likelihood of juror bias, the presumption has been rebutted. [Citations.] [¶] . . . [¶] . . . If the record shows a substantial likelihood that even one juror 'was impermissibly influenced to the defendant's detriment,' reversal is required regardless of whether the court is convinced an unbiased jury would have reached the same result." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116-1117 (Cissna).)
In applying the substantial likelihood standard, "[t]he standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts." (In re Hamilton (1999) 20 Cal.4th 273, 296.) We must bear in mind that "the jury is a 'fundamentally human' institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. . . . If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.' " (Ibid.) An appellate court "independently review[s]" a trial court's finding of no prejudice arising from juror misconduct. (People v. Loker (2008) 44 Cal.4th 691, 749 (Loker).)
Although there is no doubt the trial court correctly found jury misconduct, we find no substantial likelihood that the improper discussions, in the end, influenced the vote of any juror. The case is indistinguishable in this regard from Loker. The jurors in Loker initially had brief discussions of the defendant's failure to testify, but whenever the issue came up the foreperson reminded the others that they were to restrict their discussions to the evidence and not to consider the defendant's decision not to testify. Soon, the jurors ceased to discuss the issue. (Loker, supra, 44 Cal.4th at p. 748.) The Supreme Court found no prejudice, noting: "It is natural for jurors to wonder about a defendant's absence from the witness stand. [Citation.] The amended declarations show that the comments on this subject were brief and played no role in the jury's penalty deliberations. '[T]he purpose of the rule prohibiting jury discussion of a defendant's failure to testify is to prevent the jury from drawing adverse inferences against the defendant, in violation of the constitutional right not to incriminate oneself.' [Citation.] Even if some comments disclosed in the amended declarations might have given rise to inferences adverse to defendant, the foreperson promptly forestalled that possibility, reminding the jurors that defendant had a right not to testify and that his assertion of that right could not be held against him. Under these circumstances, the purpose of the rule against commenting on defendant's failure to testify was served, and the presumption of prejudice is rebutted." (Id. at p. 749; see similarly People v. Avila (2009) 46 Cal.4th 680, 726-727 [finding no prejudice on similar facts].)
Defendant contends the subject arose only once during the jurors' deliberations in Loker. The evidence about the frequency of the remarks was mixed and inconsistent. (Loker, supra, 44 Cal.4th at p. 748 & fn. 27.) The trial court found that "discussions" had occurred, and the Supreme Court held the finding was supported by substantial evidence. (Id. at p. 749, italics added.)
The discussion applies equally well to the circumstances here. Several jurors improperly raised defendant's failure to testify and some initially expressed views suggesting the failure implied guilt. Each time this occurred, however, the juror who reported the misconduct reminded the other jurors that they were not to discuss or draw conclusions from the defendant's failure to testify. The message appears to have gotten across. By the second day of deliberations the comments concerning defendant's failure to testify diminished, and by the third day they were absent altogether. On that day and the next, the jurors discussed the evidence exclusively. Given this record, it can only be concluded the jurors based their ultimate decision on the evidence presented, rather than on any inference drawn from defendant's failure to testify.
Defendant relies heavily on Cissna, which involved a juror's conversations with a nonjuror friend outside the courtroom. The court found the presumption of prejudice unrebutted because the juror's conversations occurred every day and covered not only the defendant's failure to testify but also the merits of the case. (Cissna, supra, 182 Cal.App.4th at pp. 1118, 1120, 1121-1122.) Because it involved a juror's discussions about the case with a nonjuror, Cissna concerned a fundamentally different type of misconduct than occurred here. In addition, with respect to the discussions of the defendant's failure to testify, Cissna is further distinguishable because it included no evidence, as here, that the juror was made aware of his misconduct, leading to its abatement over the course of deliberations and suggesting a mitigation of any initial prejudice. For these reasons, we find Cissna unpersuasive here. A case cited as support in defendant's reply brief, People v. Vigil (2011) 191 Cal.App.4th 1474, is even further afield, involving an experiment conducted by a juror outside the courtroom. (Id. at pp. 1482-1483.)
Defendant also argues we should find prejudice because this was a "close" case, in which the jurors deliberated for more than 20 hours, had testimony read back, and asked several questions of the court. The unmistakable concern of the jurors with the evidence presented at trial and their lengthy deliberations persuade us they decided the case on the evidence presented, rather than on the basis of any assumptions drawn from defendant's failure to testify. Rather than demonstrating prejudice, the lengthy deliberations of the jury tend to rebut its presence. B. Prior Uncharged Conduct
Defendant contends the evidence of his erratic behavior and threats of violence when M.E. attempted to end their relationship years earlier was improperly admitted under Evidence Code section 1101, subdivision (b) and should, in any event, have been excluded under Evidence Code section 352. The trial court's decision to admit evidence of prior uncharged conduct under subdivision (b) of section 1101 is reviewable for abuse of discretion (People v. Lenart (2004) 32 Cal.4th 1107, 1123), as is the decision not to exclude the evidence under section 352 (People v. Cole (2004) 33 Cal.4th 1158, 1195).
Evidence Code section 1101, subdivision (a) prohibits the use of evidence of a person's character, including evidence of character as manifested in prior uncharged conduct, to prove conduct on a specific occasion. The policy underlying section 1101, which has deep roots in the Anglo-American legal system, is that evidence of a defendant's past conduct cannot be admitted solely for the purpose of proving that the defendant is a person with the general propensity to commit crimes. (People v. Kipp (1998) 18 Cal.4th 349, 369.) The Evidence Code, however, recognizes that evidence of uncharged criminal acts can be relevant for reasons other than to prove bad character. Accordingly, subdivision (b) of section 1101 authorizes the admission of evidence of criminal acts otherwise excludable under subdivision (a) if the acts are "relevant to prove some fact . . . other than [the defendant's] disposition to commit [a criminal] act." Evidence is most commonly admitted under subdivision (b) to prove (1) motive or intent, (2) a common design or plan between the uncharged and charged crimes, and (3) identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 & fn. 6 (Ewoldt).)
In order to justify admission under Evidence Code section 1101, the uncharged conduct must bear some resemblance to the charged crime, although the requisite degree of similarity will vary depending upon the purpose for which the evidence is admitted. (Ewoldt, supra, 7 Cal.4th at p. 402.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (Ibid.) "We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent." (People v. Robbins (1988) 45 Cal.3d 867, 879, superseded on other grounds by statute, People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)
Defendant concedes that "testimony of threats by [defendant] may have had some relevance in the instant case," and we have no difficulty concluding the evidence of defendant's conduct with respect to his prior girlfriend was sufficiently similar to the present incident to satisfy Ewoldt's requirements for the admission of prior acts evidence relating to motive and intent. The evidence indicated that defendant's reaction to an earlier girlfriend's decision to end a romantic relationship was to attempt to coerce her into changing her mind through threats of violence against the girlfriend and her family, the use of physical violence against the girlfriend, and threats of and preparations for the destruction of her home, during which defendant threatened to kill the girlfriend and her son. His reaction to L.F.'s ending of their relationship followed the same pattern, with threats of violence against L.F. and her family, physical violence against L.F., and arson against her parents' residence. The jury could readily have concluded that, just as defendant's motive with respect to M.E. was to punish or coerce her with respect to the severing of their relationship, he acted with the same purpose here. Similarly, the jury could conclude defendant's intent was the same in both instances, to commit arson against the home and injure the residents. We find no abuse of discretion in the trial court's decision to admit this evidence under Evidence Code section 1101, subdivision (b).
Defendant's true objection appears to be, not that the prior uncharged conduct was inadmissible under Evidence Code section 1101, subdivision (b), but that the trial court did not sufficiently tailor the admitted evidence to address solely defendant's threats and violence. While conceding the relevance of the threats against M.E., defendant argues, "the majority of the evidence had no relevance. Evidence of such things as [defendant] using drugs, taking a car, damaging the car and other property, and being belligerent to an officer and spitting on him were not at all analogous to the charges against [defendant] in the case at bench."
We find this argument forfeited by defendant's failure to object or otherwise raise a similar argument at trial. Defendant moved in limine to exclude evidence of threats to M.E., but the motion did not seek, in the alternative, to restrict the scope of the evidence putting those threats in context. In its remarks when denying the motion in limine, the trial court merely declined to exclude evidence of the threats; it did not make any ruling regarding the manner in which the evidence could be introduced. Defendant was therefore free to object at trial to the admission of any details of the uncharged prior conduct testimony he believed to be unnecessary and prejudicial. Had defendant objected in this manner, the trial court could have admitted the concededly relevant information and excluded the purportedly irrelevant details. (See, e.g., People v. Demetrulias (2006) 39 Cal.4th 1, 13 [trial court excluded particularly prejudicial details from evidence of prior uncharged conduct]; People v. Romero (2008) 44 Cal.4th 386, 411 ["[t]he reason for [the forfeiture] rule is to allow errors to be corrected by the trial court and to prevent gamesmanship by the defense"].) No such objections were made during the testimony of the witnesses regarding the threats. Accordingly, any claim that irrelevant and prejudicial evidence was admitted regarding the circumstances of the uncharged prior conduct is forfeited. (People v. Romero, at p. 411.)
In any event, we find no prejudice from the admission of these details. It was necessary for the jury to hear some of the details to which defendant now objects in order to understand the nature and context of the threats. Further, the details to which defendant objects—defendant's theft and damage of a vehicle, belligerence toward an officer, and use of drugs—were not sufficiently prejudicial, in light of the other evidence of defendant's conduct, to have likely swayed the jury. (People v. Watson (1956) 46 Cal.2d 818, 836 [improper admission of evidence is harmless error unless it is "reasonably probable" defendant would have achieved a more favorable result in its absence].)
Defendant also objects under Evidence Code section 352. It is well-recognized that, even if prior uncharged conduct evidence satisfies the Ewoldt requirements for admission, it is still subject to a prejudice argument under section 352. " 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.] [¶] . . . We thus proceed to examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (Ewoldt, supra, 7 Cal.4th at p. 404; see People v. Kipp, supra, 18 Cal.4th at p. 371.) Pursuant to Ewoldt, the probative value of the evidence must be weighed against its potential for undue prejudice, determined by (1) its inflammatory nature relative to the charged offenses, (2) the risk of issue confusion, (3) its remoteness, and (4) the consumption of time. (See People v. Branch (2001) 91 Cal.App.4th 274, 283-285.)
Again we find no abuse of discretion. The evidence had substantial probative value, demonstrating defendant viewed the breakup as sufficient justification for arson and his intent when acting was to damage the home and injure the occupants. In contrast, the potential for undue prejudice was relatively small. Defendant's conduct toward M.E., while comparatively extreme, was less violent and destructive, and therefore less inflammatory, than the charged crime itself. Because the events occurred years apart and involved different persons, there was little risk of confusion, but the prior conduct was not so remote as to bear little relevance to defendant's current mental state. Finally, the evidence was introduced through three witnesses whose testimony consumed a relatively small amount of time. There was no undue focus on the prior conduct. Given the lack of undue prejudice, we also find no violation of defendant's due process rights from the admission of this evidence.
III. DISPOSITION
The judgment of the trial court is affirmed.
Margulies, J.
We concur:
Marchiano, P.J.
Banke, J.