Opinion
A144801
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. REGINALD TANUBAGIJO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR281079)
A jury convicted Reginald Tanubagijo of second degree murder (Pen. Code, § 187, subd. (a)) and assault on a child causing death (§ 237ab). Tanubagijo moved for a new trial, arguing a juror committed misconduct by tweeting during trial. The trial court denied the new trial motion and sentenced Tanubagijo to state prison.
All undesignated statutory references are to the Penal Code. Twitter is a social networking website where users post short messages called "tweets." Registered users can read and post tweets, but unregistered users can only read them. Twitter messages are public, but users can also send private messages.
Tanubagijo appeals. He contends the court: (1) provided an incorrect response to the jury's question regarding a lesser included offense; and (2) failed to conduct a sufficient inquiry into the juror misconduct.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged Tanubagijo with murder (§ 187, subd. (a)) and assault on a child causing death (§ 273ab).
Prosecution Evidence
C.B. was born in September 2010. Tanubagijo and his wife, Tammy, were C.B.'s foster parents. Before becoming a foster parent, Tanubagijo received training which included specific instructions not to shake a baby, and doing so "could cause brain injury, neck injury, physical damage" to the baby. At "well baby" checkups in September and November, C.B.'s pediatricians thought he was doing well and developing normally.
We refer to Tammy by her first name for clarity and convenience.
On a November 2010 evening, Tanubagijo and Tammy had neighbors over to visit. C.B. seemed relaxed and happy. The neighbors fed and burped C.B.; nothing seemed out of the ordinary. After their friends left around 8:00 p.m., Tammy put C.B. in a "bouncer" seat on top of the table so Tanubagijo could feed him. Tammy left the kitchen. Three or four minutes later, Tanubagijo yelled Tammy's name. Tanubagijo approached Tammy, handed her the baby, and told her, "I think he's choking." C.B. was limp. Tammy took C.B. to the table, cleared his mouth, and started CPR. C.B. spit up. Tammy continued CPR and Tanubagijo called 911.
Suisun Police Officer Andrew White received a call from dispatch and went to Tanubagijo and Tammy's home. Tanubagijo answered the door. Frantic, he told Officer White the baby "wasn't breathing and was choking on milk." The two men went to the kitchen, where C.B. was on the table, limp. Tammy was with the baby; she told Officer White he was choking on milk. C.B.'s eyes were rolling back in his head, a white substance was coming out of his mouth, and he was turning blue. Officer White began CPR. Shortly thereafter, paramedics arrived and brought C.B. to the hospital.
When C.B. arrived at the emergency room, he was "floppy and unresponsive." The emergency room doctor noticed C.B.'s pupils were dilated and "not reactive[,]" and that he had "increased pressure in [his] head." A CT scan revealed "devastating" and "extensive" brain injury and "bleeding around the brain[.]" There was "a lot" of blood, which had collected in the front of C.B.'s brain and "moved all the way back into the posterior part of the head." According to the emergency room doctor, the bleeding was "acute," meaning it had "happened within a very short[,] very recent period of time."
C.B. was transferred to Oakland Children's Hospital, where doctors determined he had a "severe brain injury" and that an operation would not improve his condition. A child abuse pediatrician reviewed the CT scan, which showed extensive bleeding between C.B.'s brain and skull. C.B.'s "entire brain . . . looked abnormal." An ophthalmologist and a retinal specialist observed "retinal hemorrhages that were so extensive . . . that no normal retina was left." Laboratory tests indicated no metabolic abnormality — such as a bleeding disorder — that would explain the hemorrhages. The child abuse pediatrician opined the hemorrhages and brain injury were "only consistent with abusive head trauma" such as a "violent" or "very severe traumatic shaking event, or a slamming event[.]" C.B.'s injuries were "not consistent with choking." Doctors determined C.B. would not regain consciousness; they removed him from life support and he died.
A medical examiner determined C.B. "succumbed to blunt head trauma, and the manner of death was a homicide." The medical examiner believed the hemorrhages in C.B.'s brain and eyes were produced when his brain was "rock[ed] back and forth" as he was "shaken" and then "potentially struck." C.B.'s injuries were not caused by a fall. The medical examiner explained: "[w]ith a fall if you have impact to the head, you would expect the injury to be localized to that particular place." C.B.'s injury "encompass[ed] the entire brain."
An ophthalmologist examined C.B.'s eyes after the autopsy was performed and discovered "hemorrhages in the retina all the way from the optic nerve from the back of the eye all the way out to where the retina ends[.]" The optic nerve in both of C.B.'s eyes was also swollen. According to the ophthalmologist, "[a]lmost every time you see that[,] it will be the shaken baby syndrome." The ophthalmologist determined C.B.'s hemorrhages were "due to rapid and repeated, not just one or two, but . . . rapid and repeated acceleration, deceleration forces."
Suisun police officers interviewed Tanubagijo twice. In the first interview, Tanubagijo said C.B. choked during a feeding. As Tanubagijo tried to burp C.B., his head "flop[p]ed" and Tanubagijo called for Tammy. In the second interview, however, Tanubagijo said C.B. fell from the bouncer to the floor, a distance of about three feet, and landed on his head. He denied shaking the baby.
The distance from the top of the dining room table to the floor was 30 inches, or two feet, six inches. The medical examiner testified a fall from a distance less than 36 inches would not explain C.B.'s hemorrhages. The ophthalmologist reached the same conclusion, noting, "I've never seen accidental trauma that causes this type of hemorrhage."
In early December 2010, Tanubagijo attempted suicide. Law enforcement officers found Tanubagijo in his backyard with bloody towels wrapped around his wrists. Inside the house, police officers discovered several letters, some of which stated: "'I killed [C.B.]. Tammy is innocent'" and "'Tell the Judge I did kill [C.B.]'"
Defense Evidence
A neuropathologist testified C.B.'s brain injuries could be consistent with an accidental fall. According to the neuropathologist, C.B. had a "preexisting" condition — "fluid collection with some blood in it over his brain." This preexisting condition, combined with a "fall with probable head impact," caused C.B.'s injuries. The pathologist who performed the autopsy testified C.B.'s injuries were consistent with falling from a bouncy seat off of a table.
Tanubagijo testified he was feeding C.B. when the bouncer seat "move[d] a little bit to the edge [of the table]. . . . [T]hen the bouncer fell down to the floor[,]" and landed on C.B. Tanubagijo tried to revive C.B., shaking him four to six times. He did not violently or angrily shake C.B., nor try to hurt the baby. Tanubagijo did not tell anyone C.B. fell off the table because he thought his wife would be angry with him and that he would "be in trouble[.]" He tried to kill himself because he was "ashamed" that he was "not a good father," and because in his culture, "if someone dies under [your] care," you should die. Several character witnesses testified Tanubagijo was a kind and gentle person, and a loving father.
Verdict and Sentence
The jury convicted Tanubagijo of second degree murder of C.B. (§ 187, subd. (a)) and assault on C.B. causing death (§ 237ab). The trial court denied Tanubagijo's new trial motion and sentenced him to 25 years to life in state prison.
DISCUSSION
I.
The Kurtzman Error Was Harmless
People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman).
The prosecution urged the jury to convict Tanubagijo of second degree murder, not involuntary manslaughter. According to the prosecutor, "[t]he only evidence of involuntary manslaughter comes from speculation and [Tanubagijo's] self-serving statements. . . . [¶] The fact is this is not simply a negligent act. . . . This was intentional. This was no accident. . . . This was not the product of an involuntary act." Defense counsel argued Tanubagijo was not guilty of second degree murder or involuntary manslaughter, explaining: "This was an accident."
A. Jury Instructions and Deliberation
The court instructed the jury with CALCRIM No. 520, "Second Degree Murder with Malice Aforethought" and CALCRIM No. 580, "Involuntary Manslaughter: Lesser Included Offense." As relevant here, CALCRIM No. 580 provided: "In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter."
The court did not provide the jury with standard instructions on the order in which to consider the charges and lesser included offenses. The court instructed the jury on the lesser included offense of involuntary manslaughter as follows: "Now, we talked about this lesser included offense o[f] involuntary manslaughter. The only way you get to that on Count One is if you all agree that he is not guilty of murder in the second degree, so if you all agree to that, then you go and look at the elements for involuntary manslaughter and make a decision. And then if you all agree one way or the other on that, you fill out that one. So if you all agree on Count One, you don't have to go to . . . the lesser included."
The record does not include jury instructions requested by Tanubagijo. The prosecution requested the court instruct the jury with CALCRIM No. 3517, on how the jury deliberates and completes verdict forms when lesser included offenses and greater crimes are not separately charged and the jury receives verdict forms for both the greater and lesser offenses. (CALCRIM No. 3517.) The court did not give that instruction. The Bench Notes to CALCRIM No. 3517 state: " Do not give this instruction for charges of murder or manslaughter; instead give the appropriate homicide instruction for lesser included offenses: . . . CALCRIM No. 642, Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide[.]" (Judicial Council of Cal., Crim. Jury Instns. (2014) Bench Notes to CALCRIM No. 3517, p. 1008, first italics added.)
CALCRIM No. 642 provides that for each count charging second degree murder, the jury will receive verdict forms for guilty and not guilty of second degree murder, and voluntary and involuntary manslaughter. The instruction directs the jury: "[y]ou may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not guilty of involuntary manslaughter only if all of you have found the defendant not guilty of second degree murder." (CALCRIM No. 642 (2014), p. 404.) The court has a sua sponte duty to give this instruction in homicide cases where "second degree murder is the greatest offense charged and one or more lesser offense is submitted to the jury[.]" (Judicial Council of Cal., Crim. Jury Instns. (2014) Bench Notes to CALCRIM No. 642, p. 405.) The court did not instruct the jury with CALCRIM No. 642.
The jury began deliberating on July 24, 2014, and deliberated again on July 28 and 29. On the morning of July 29, the jury sent a note to the court asking: "Is consensus on Murder 2 needed to be reached prior to moving to Involuntary Manslaughter?" The court responded, "Yes — If you all agree defendant is guilty of murder, do not consider involuntary manslaughter. Conversely, if you all agree defendant is not guilty of murder, then you move on to consider the lesser included offense of involuntary manslaughter. If you all cannot agree on [the] murder count, then do not consider lesser included offense of involuntary manslaughter."
In the afternoon on July 29, 2014 the jury sent another note to the court asking: "In regards to Implied Malice Aforethought [ ] does conscious disregard for human life extend beyond initial act of injury? For example: withholding information from Emergency Personnel that could have been beneficial in saving the baby's life." The court responded: "Please refer to Jury Instruction 520 [CALCRIM No. 520]. You may consider all admissible evidence in the trial to determine whether the People have proved . . . conscious disregard for human life . . . beyond a reasonable doubt."
On the afternoon of July 29, 2014 the jury convicted Tanubagijo of second degree murder of C.B. (§ 187, subd. (a)) and assault on C.B. causing death (§ 237ab).
B. Any Error in the Court's Response to the Jury's Question Was Harmless
Tanubagijo contends the court's response to the jury's question "Is consensus on Murder 2 needed to be reached prior to moving to Involuntary Manslaughter" violated Kurtzman. In Kurtzman, the defendant stabbed a man to death. (Kurtzman, supra, 46 Cal.3d at pp. 325-326.) During deliberations, the jury advised the court it "failed to reach agreement on murder but could agree on manslaughter." (Id. at p. 327.) The judge told the jury "'to go back and deliberate on the question of murder in the first degree. I want you to come back to me and tell me if you agree or disagree on that issue. . . . Before you get to the other lesser included offenses, I want to find out if you have unanimously agreed on the original charge, which is murder in the first degree. . . . tell me what the status is on that one charge before we go to the lesser ones.'" (Id. at pp. 327-328.) The jury returned a verdict of not guilty of first degree murder, and the judge asked the jury to deliberate on second degree murder. (Id. at p. 328.)
The jury deadlocked on second degree murder and "posed questions to the court on the relationship between second degree murder and voluntary manslaughter. At one point the judge, addressing the jury foreman, noted the jury seemed still to be considering manslaughter." (Kurtzman, supra, 46 Cal.3d at p. 328.) The jury asked the judge: "'Can we find the defendant guilty of manslaughter without unanimously finding him not guilty of murder in the second degree?'" (Id. at p. 328.) The judge responded: "'No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.'" (Ibid.) The jury convicted the defendant of second degree murder. (Id. at p. 324.)
The California Supreme Court determined the judge "erred in instructing the jury not to 'deliberate on' or 'consider' voluntary manslaughter unless and until it had unanimously agreed on second degree murder." (Kurtzman, supra, 46 Cal.3d at p. 335.) The Kurtzman court, however, concluded the error was harmless, explaining the record established the "jurors had in fact deliberated on both degrees of murder and on voluntary manslaughter for two days prior to the first erroneous instruction and because even thereafter, despite erroneous guidance from the court, they obviously continued to consider both voluntary manslaughter and second degree murder, it is not reasonably probable that a different result would have occurred had the contested instructions not been given." (Id. at p. 335.) Kurtzman also noted "there was no coercion of a single juror or a small minority of jurors. [Citation.] The reported split was eight to four and it totally shifted following . . . further deliberations. Given this pattern of continued full and productive deliberations and given the evidence of defendant's guilt, it is not reasonably probable jurors would have found defendant not guilty of second degree murder absent the court's erroneous comments." (Id. at p. 336, fn. omitted.)
The rule from Kurtzman is "the jury may deliberate on the greater and lesser included offenses in whatever order it chooses, but . . . must acquit the defendant of the greater offense before returning a verdict on the lesser offense. [Citation.] In this manner, when the jury renders its verdict on the lesser included offense, it will also have expressly determined that the accused is not guilty of the greater offense." (People v. Fields (1996) 13 Cal.4th 289, 309.) Under Kurtzman, jury instructions "should not suggest that a not guilty verdict must actually be returned before jurors can consider remaining offenses." (Kurtzman, supra, 46 Cal.3d at p. 336.)
Here, the court's response to the jury's question — to the extent it purported to control the sequence in which the jury considered the two homicide offenses — was erroneous. (Kurtzman, supra, 46 Cal.3d at p. 335.) The Attorney General contends the error was harmless because there is not a reasonable probability Tanubagijo would have received a more favorable result absent the court's erroneous instruction. We agree. The court instructed the jury on murder and involuntary manslaughter (CALCRIM Nos. 500, 520, 580), implicitly suggesting the jury's deliberations should include consideration of lesser offenses. The jury's first question, regarding whether consensus was needed on second degree murder "prior to moving to Involuntary Manslaughter" suggests the jury could have been considering the lesser offense and was seeking clarification that it must unanimously find Tanubagijo not guilty of the greater offense before finding the lesser offense.
The jury's second question to the court, regarding conscious disregard for human life in the context of second degree murder, focused on Tanubagijo's "mental state, and it is unlikely that the jury would, or even could as a practical matter, discuss [his] state of mind without considering the requisites for manslaughter as well as murder." (See People v. Perez (1989) 212 Cal.App.3d 395, 400 (Perez) [court's instruction violated Kurtzman, but error was harmless].) Nothing in the record before us suggests the jury ignored the lesser included offense of involuntary manslaughter.
Perez is not identical to the situation here, but it is noteworthy that the appellate court concluded the Kurtzman error was harmless even where the jury was deadlocked. (Perez, supra, 212 Cal.App.3d at pp. 399, 400.) There is no indication in this record that the jury was deadlocked. --------
We are not persuaded by Tanubagijo's suggestion that Kurtzman error can only be harmless where there is evidence the jury deliberated on the greater and lesser offenses. In Kurtzman, the jury "failed to reach agreement on murder but could agree on manslaughter"; it eventually convicted the defendant of second degree murder. (Id. at pp. 327, 324-325.) The California Supreme Court noted the jury deliberated on second degree murder and voluntary manslaughter to illustrate the principle that the court's instructional error did not affect the jury's deliberations or verdict. (Id. at p. 335.) Kurtzman did not hold the error would be harmless only if the jury deliberates on both the greater and lesser offenses. To the contrary, the Kurtzman court relied on "the evidence of defendant's guilt" in concluding the error was harmless. (Id. at p. 336, fn. omitted.) As stated above, there is no indication the jury had reached an impasse, or had failed to deliberate actually on any offense. (See People v. Clark (2016) 63 Cal.4th 522, 608 [trial court "'retains discretion to dispense with instructing the jury pursuant to Kurtzman until such time as a jury deadlock arises'"].)
As in Kurtzman, the evidence here strongly supports the conviction. (Kurtzman, supra, 46 Cal.3d at p. 336, fn. omitted.) Tanubagijo knew shaking a baby "could cause brain injury, neck injury, physical damage" i.e. that the natural and probable consequences of shaking C.B. were dangerous to his life. There was also substantial evidence Tanubagijo acted with conscious disregard for C.B.'s life. Several doctors testified about the "devastating" and "extensive" injuries to C.B.'s brain, which could only be caused by "abusive head trauma" such as a "violent" or "very severe traumatic shaking event, or a slamming event[.]" The medical examiner testified C.B.'s injuries were not caused by a fall: "[w]ith a fall if you have impact to the head, you would expect the injury to be localized to that particular place." C.B.'s injury "encompass[ed] the entire brain." The ophthalmologist reached the same conclusion, noting, "I've never seen accidental trauma that causes this type of hemorrhage."
In suicide notes, Tanubagijo admitted killing C.B. He also hid the cause of C.B.'s injuries from first responders and emergency room personnel. Tanubagijo also lied to police, telling them C.B. choked during a feeding. Later Tanubagijo changed his story, and said C.B. fell from a table. (See Perez, supra, 212 Cal.App.3d 395, 399-400 [noting "the substantial evidence of second degree murder" in concluding, for several reasons, the Kurtzman error was harmless].) We conclude it is not reasonably probable jurors would have found Tanubagijo not guilty of second degree murder absent the court's erroneous answer to the jury's question. (Kurtzman, supra, 46 Cal.3d at pp. 335, 336 [reversal required only where "reasonably probable that a different result would have occurred had the contested instructions not been given"]; People v. Benally (1989) 208 Cal.App.3d 900, 912-913 [Kurtzman error harmless].)
People v. Olivas (2016) 248 Cal.App.4th 758 (Olivas) — not cited by either party — does not alter our conclusion. In Olivas, the defendant was charged with 17 felonies arising out of his continuous abuse of a minor over an eight-year period. During deliberations, the jury asked the court: "'If we are "hung" on a count (i.e. 14 [aggravated sexual assault of a minor by oral copulation]), are we able to consider the alternate count (i.e. 19 [forcible lewd acts on a minor under 14]?)'" (Olivas, supra, 248 Cal.App.4th at p. 772.) "At a hearing outside the presence of the jury, the court stated: '[T]he next statement is if we are hung on a count, are we able to consider the alternate count? The answer would be no.' Defense counsel responded: "'No" would be fine.' The court then provided the following response to the jury: 'No.'" The jury convicted the defendant of numerous felonies, including count 14. (Id. at p. 769.) It did not render a verdict on the alternate counts, including count 19.
The Sixth District Court of Appeal concluded the court's answer of "No" to the jury's question violated the Kurtzman rule, and the error was prejudicial. (Olivas, supra, 248 Cal.App.4th at pp. 774, 775.) The court noted the evidence was not overwhelming, that the minor's trial testimony was "ambiguous," and that there were "discrepancies as to the severity of defendant's misconduct." (Id. at pp. 775-776.) Olivas explained: "Had the trial court correctly instructed the jury it could consider the counts in whatever order it desired, it is reasonably probable the jury would have acquitted defendant of one or more of the aggravated sexual assault counts (counts 10 through 14) and instead convicted him of one or more of the forcible lewd act counts (counts 15 through 19)." (Id. at p. 776.)
Olivas is distinguishable for several reasons. First, there is no indication here the jury was hung. Second, second degree murder and involuntary manslaughter were not alternate counts. Finally, the evidence against Tanubagijo was not — as in Olivas — "ambiguous" or riddled with "discrepancies." (Olivas, supra, 248 Cal.App.4th at pp. 775, 776.) It was overwhelming. We conclude the Kurtzman error was not prejudicial.
II.
After Conducting a Sufficient Inquiry, the Court Properly
Denied the New Trial Motion
On July 9, 2014, the jury was seated and sworn, and the judge admonished the jury not to use the Internet to communicate or share information about the case, noting "don't Google. Don't Twitter." The People began their case in chief on July 9, 2014. The People completed their case on July 16; the defense began its case on July 17.
The jury began deliberating on July 24, 2014, and deliberated again on July 28 and 29. The jury reached a verdict on July 29.
A. Motion for New Trial
Tanubagijo moved for a new trial pursuant to section 1181, subdivision (3), arguing P.D. (the Juror) committed misconduct by (1) lying during voir dire about his ability to be impartial; (2) "prejudg[ing] the case" before the People finished their case in chief; and (3) communicating with non-jurors about the trial via Twitter. According to Tanubagijo, the Juror's tweets demonstrated his bias against Tanubagijo.
In a supporting declaration, defense investigator T.J. Hicks averred he interviewed the Juror. Hicks showed the Juror various postings to a Twitter account with the Juror's "picture affixed to them." The Juror admitted he authored the postings after being sworn as a juror. The Juror also admitted he "was aware that the . . . judge presiding over the trial had ordered all jurors, including himself, not to use any social media or post to social media concerning their jury service. He admitted that he had disregarded the court's admonition, qualifying his behavior by stating 'But I did not say anything about the facts of the case.'"
The new trial motion attached 60 postings to the Juror's Twitter account between July 8 and 28, 2014. Many postings concerned quotidian matters such as the Juror's opinion on fashion and music. Some tweets, however, referred to jury duty: on July 8, the day before the jury was sworn, the Juror tweeted, "Are u kidding me? This jury duty shit is NOT for me dude." On July 14, toward the end of the People's case-in-chief, the Juror tweeted, "Jury duty lunch break." On July 22, on a day when no testimony was heard, he wrote, "Woke up early and knocked out the gym before jury duty bout to spark one, throw in a load of laundry, and tidy up the kitchen." On July 23, the last day of the defense case, the Juror tweeted, "Jury duty needs to be on its Ps & Qs today. I need to go get this phone together and the gym is calling me."
On July 24, 2014, the prosecutor gave closing argument. During the lunch break, the Juror wrote, "I know this jury is not gonna want to deliberate with me while I have an attitude so they have about 2.2 to get this shit TOGETHER." On July 28, just before deliberations began, the Juror tweeted, "Deliberation starts today. I wish I could record it cuz this shit is about to be crazy lol" and "In a room with 11 other strongly opinionated people trying to all agree on a verdict? yea right." The new trial motion, however, was premised almost entirely on the following tweet from July 16, the last day of the prosecution's case-in-chief: "In my book, everybody's guilty until proven innocent. And by the looks of it, both of you niggas are facing life."
In opposition, the prosecution argued Hicks's declaration was inadmissible hearsay. The People also claimed there was no evidence the Juror "had a bias of any kind that affected his verdict in this case. The statement [regarding the burden of proof] is not factually close to this case and there is no context as to what the [J]uror was referencing, so it is pure speculation that this juror was even referencing" Tanubagijo's trial.
B. Hearing and Order Denying New Trial Motion
At a hearing, the court had the Juror sworn as a witness. The court explained: "I've had you brought in and sworn in because I need to — I need to ask you some questions. . . . [¶] The defense has filed a motion requesting a new trial alleging that you have committed something called juror misconduct. And so — what they've done is they've submitted a declaration from an investigator named T.J. Hicks . . . ." The court read the Juror the declaration and asked him, "is Mr. T.J. Hicks correct? Is all of that correct?" The Juror responded, "Yes" and the following colloquy occurred:
"THE COURT: So I do agree with you, that you did not say anything about the facts of the case from all of the Twitter that I've seen. But there is one — how old are you?
"[THE JUROR]: I'm 24.
"THE COURT: There is one actual tweet that concerns me, and let me find it. [¶] It's a Tweet that was — and I'm not sure if this is the actual time and date, but it lists a tweet on July 16th of 2014 at 11:12 a.m. And I'm going to let you read it first, and then I'm going to read it into the record.
"[THE JUROR]: Yeah.
"THE COURT: So — and that one is, quote, 'In my book, everyone's guilty until proven innocent. And by the looks of it, both you niggas are facing life.' [¶] So when I read that, my first thought was perhaps you were talking about some other case, because my recollection was there was only one defendant in this case.
"[THE JUROR]: Correct.
"THE COURT: So what can you tell me about this tweet? Does it have anything to do with this case?
"[THE JUROR]: Not at all, sir.
"THE COURT: What does it have to do with?
"[THE JUROR]: It's a subliminal message to my significant other, at the time, of a friend of mine.
"THE COURT: Okay. Thank you. Now I want to break it down. So you're talking about something else?
"[THE JUROR]: Uh-huh.
"THE COURT: But what also concerns me is this — I'm going to talk about the first sentence. [¶] All right?
"[THE JUROR]: Uh-huh.
"THE COURT: Let me show it to you, so you know what we're talking about. [¶] The first sentence says, 'In my book, everyone is guilty until proven innocent.' And I remember in this case — well, in most cases, actually, all of these ones that I do, that I start the case in the voir dire. I talk about how everyone's cloaked in the presumption of innocence, and the People have to prove someone's guilty beyond a reasonable doubt. Otherwise, they get a not guilty. And I think all of the jurors agreed to do that, and — so did you in — did you follow my instructions in this case? Did you keep an open mind in this case?
"[THE JUROR]: I did, sir.
"THE COURT: Did you wait until all of the evidence was in, and I instructed you before you — did you deliberate with 11 other people back there?
" [THE JUROR]: Yes, I did.
"THE COURT: And did you all discuss the case and decide the case based on the evidence?
"[THE JUROR]: Yes, sir.
THE COURT: Did you . . . pre-judge Mr. Tanubagijo at all?
"[THE JUROR]: No, sir.
"THE COURT: All right. All right. [¶] Thank you, sir. Again, I tell jurors not to do this stuff to protect them." The court excused the Juror.
Defense counsel argued the Juror "tweeted from the jury box as a seated juror" and that he was likely "under the influence of cannabis during this trial[.]" The court denied the new trial motion. It determined Hicks's declaration was admissible and that the Juror "violated the Court's orders not to tweet and comment about the case. [¶] [He] did not talk about the facts. He talked about a lot of extemporaneous different things. He talked about things not really relevant to this issue. In the Court's opinion, the only tweet that was potentially prejudicial is the one tweet on July 16th concerning the presumption of innocence. And, again, it's the . . . tweet about — talking about two people."
The court continued, "in my questioning of him, he said that tweet had nothing to do with this case. It was about friends of his that he was talking about, not Mr. Tanubagijo, which sort of makes sense, since he's talking about two people and there was only one defendant in this case. And so I don't find that the facts necessarily establish misconduct. And then, again, looking at it even more closely, just dissecting that sentence that he's talking about other people about, just, in my book, everyone's proven — 'everyone's guilty until proven innocent,' he claims that although that might be what he said, he followed the law in this case. He applied the presumption of innocence in the case. He waited until the end before . . . voting on Mr. Tanubagijo's case. So I don't find that even if his misconduct that he's tweeting about the case, the tweets are — I don't find — even if that is misconduct, I don't find it misconduct that's prejudicial, which would warrant the granting of a motion for a new trial."
Next, the court explained: "if the [J]uror waited until he heard all of the evidence and deliberated and followed the law as he testified here under oath, then his one off tweet, even though, albeit, occurring at the close of the People's case, it would not be enough in this Court's mind to grant the prejudice. [¶] And I would note, in this case, this was a case where there was evidence put on by both parties. The defendant testified, so it appears that [the Juror,] according to his testimony, heard all of the evidence, went in the back, deliberated with people. There were no further tweets about, 'I can't believe we have to deliberate this. The guy is, you know, guilty already.' The only tweet is this of several tweets, which is this one sentence that is combined with another sentence that dealt with his friends, not this case." The court concluded there was no misconduct, and that any assumed misconduct for failing to "follow[ing] the rules about tweeting or talking" did not "reach[ ] a level of prejudice that requires a new trial."
C. The Court Conducted a Sufficient Inquiry and Did Not Err in Denying the New Trial Motion
Tanubagijo contends the court erred by failing to conduct an inquiry necessary to determine whether the "trial was infected with juror misconduct." "When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.]" (People v. Perez (1992) 4 Cal.App.4th 893, 906; People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) In reviewing the trial court's ruling, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." (People v. Nesler (1997) 16 Cal.4th 561, 582.) The determination of whether "those facts constitute [juror] misconduct [is] a legal question we review independently." (People v. Collins (2010) 49 Cal.4th 175, 242.)
"When a trial court is aware of possible juror misconduct, the court 'must "make whatever inquiry is reasonably necessary"' to resolve the matter. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1255.) Tanubagijo claims the inquiry was "inadequate" because the court failed to ask sufficient questions to "probe" what the Juror "actually meant" in his tweet that "everyone is guilty until proven innocent." We are not persuaded. A trial court has "broad discretion as to the mode of investigation of allegations of juror misconduct. [Citations.] Even cases suggesting a 'full investigation' is necessary in such cases imply that this duty is satisfied by the court's examination of pertinent witnesses. [Citation.]" (People v. Keenan (1988) 46 Cal.3d 478, 539.)
Here, the court held an evidentiary hearing where it questioned the Juror about the misconduct, specifically the July 16, 2014 tweet. In response to the court's questions, the Juror said the tweet did not concern Tanubagijo's case. The court also asked the Juror whether he deliberated with the other jurors, whether he decided the case based on the evidence, and whether he pre-judged Tanubagijo. Though a close question, we conclude the inquiry was sufficient and the court was not — as Tanubagijo suggests — required to ask any additional or different questions. (cf. People v. Castorena (1996) 47 Cal.App.4th 1051, 1066 [trial court erred by declining to conduct an evidentiary hearing regarding a hold-out juror's allegations]; People v. McNeal (1979) 90 Cal.App.3d 830, 836 [inquiry insufficient where trial court did not conduct a formal hearing on the misconduct and brought the juror in for questioning but instructed her not to go into factual matters].)
The Juror committed misconduct by violating the court's instructions not to share information about the case on social media. (People v. Linton (2013) 56 Cal.4th 1146, 1194 [a "juror who violates . . . the trial court's instructions is guilty of misconduct"].) But we reject Tanubagijo's claim that the misconduct was prejudicial. Based on the Juror's explanation, the court determined the tweet had no relation to the issues in the case and did not impair the Juror's duty to serve impartially. We accept the court's findings and defer to its implicit determination that the Juror was credible when he explained the tweet and his deliberations. (People v. Harris (2008) 43 Cal.4th 1269, 1305.)
Tanubagijo's reliance on People v. Cissna (2010) 182 Cal.App.4th 1105 (Cissna) does not alter our conclusion. In that case, a juror spoke daily with a nonjuror about the case; the misconduct "fundamentally compromised the integrity of the jury's deliberative process and undermined the requirement that the jury alone determine whether a defendant is guilty." (Id. at pp. 1118, 1119.) Here — and in contrast to Cissna — the Juror did not speak with a nonjuror. He tweeted about quotidian aspects of jury service, and made a reference to being "guilty until proven innocent." The Juror's testimony on the burden of proof actually applied by the Juror satisfied the court that, despite the tweet, the Juror followed the law. Moreover, there is no evidence other jurors read the Juror's tweets or that the tweets influenced the jury's deliberations. (In re Hamilton (1999) 20 Cal.4th 273, 305-306.) We conclude the Juror's misconduct was not prejudicial and the court properly denied Tanubagijo's new trial motion. (People v. Jackson (2016) 1 Cal.5th 269, 334.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.