BELL (STEVEN M.) ON H.C.

Non-Title Respondent, Department of Corrections and Rehabilitation, Response Brief re Referee’s Report

Cal.May 27, 2016

SUPREME COURT COPY Jn the Supreme Court of the State of Califurnia In re STEVENM.BELL, CAPITAL CASE On Habeas Corpus Case No. $151362 ‘Trial: San Diego County Superior Court Case No, CR133096 The Honorable Richard Murphy, Judge Reference Hearing: The Honorable Joan P. Weber, Judge 9 EXCEPTIONS TO RE FACT ANDBRIE! -REE’S FINDINGS OF ON THE MERITS. Kamata D. HARRIS Attomey General of Californiaany GORALD A. ENGLER Chief Assistant Attorney Genetal— JULIE L. GARLAND Senior Assistant Atlorney General HOLLy D. WiLKens Supervising Deputy Auorney General MicuaetT. Muney Deputy Atorney General LYNNE G, MCGINNts: DeputyAttorney General State Bar No, 101090 600 West Broadway, Suite 1800 San Diego. CA 92101 P.O. Box 85266 San Diego. CA 92186-5266 Telephone: (619) 645-2205 Fax: (619) 645-2012 Email: Lynne.MeGinnis@doj.ca.gov Attorneysjor Respondent Th] PENAL TABLE OF CONTENTS Page I, TmtrOductiOn.........s cc eescseseseseseeeseseseeeeacersaeeaseaeesseerassotesaeeaecsnas 1 IL. Reference Hearing ........ccccssccssneccssssteccecssetsineeesaeesseeeeseeeseeees 2 A. TOStIMONY 0.0... ccseesssceeeeesscessneecececsecceneeceseeeeenaeereaeees 2 l. Petitioner’s WitMeSSeS........ eee eeeeeeeeeeeeeeereneees 2 a. Juror MH, 0... eeeeessceeeseeeeeseeevseneessaeeees 2 b. Juror PLR.eeeeecesecneeeseseeessereeeess 7 c. Defense Investigator Susan Lake....... 14 d. Prosecution Investigator John Wildeeeecccscseesteseeeeseeeseeeeseeeseeeeneees 18 2. Respondent’s Witnesses .........:cceceeseeeereeees 21 a. Stephen H. oceecceeseeeseseesneeeeeneeeees 21 B. Referee’s report .....cceeceeseeeseeseeeeseeeeesscessessesneeeseeceas 22 l, Question No. 1 o......ecececssscccsesteceeeeeteeessneeeeessees 22 2 Question NO. 2 .......ccecccsssccceesteceessneeeesseeeeeeeees 23 3. Question NO. 3 oo... eceesseseeeeteeeereteeeeestereeerenes 24 4 Question NO. 4.........::cssesesssseesessssseeeessesssenen 24 5. Question NO. 5 ....ccceessssecesseessecetressteceeseees 24 II. Exceptions to the Referee’s Findings ofFact... 25 TV. Argument on the METIts.........cece eeeceeseeeseeeeeetateeenesenaees 25 A, Relief on Habeas Corpus............:ceeecessseeeeseeessneeenenes 25 1. All Presumptions are In Favor of the JUAQMENL...... eee eeeessneeeeesseeeeseecesnetseeeeeaeetenes 25 2. An Order to Show Cause Reflects a Preliminary Assessment That a Petitioner Has Stated Facts Which, if Proved, May Entitle Him to Relief...eeeeseeeeeeeeeeeeees 26 3. When Supported by Substantial Evidence, the Referee’s Factual Findings are Entitled to Great Weight...ee 28 TABLE OF CONTENTS (continued) Page 4. Petitioner Has Failed to Carry His ‘Burden of Showing There Was Juror MiSCONUCE........eceeeseceeeneeeteeteeeeetaneeeceseerersnees 29 V. COMCIUSION ........ceecseceessceesnesseecesaeceneeeeseeeeessnsorenedaaeaeeseeneeenees 37 il TABLE OF AUTHORITIES Page CASES Bell v. California (2007) 552 U.S. 825 oe eeccsssseeeteceseetersecesseceeeceaeecenaeeeressesseseeenaeeseeeees ] In re Boyette (2013) 56 Cal 4th 866.0... cceceseeccseessenceneessesessneeesseesesaeesdenesneeeneeeaeees28 In re Carpenter (1995) 9 Cal4th 634... cccccsccsscerscsessseeceeecseesseesesneecossanesseesserseeseneoes 29 In re Clark (1993) 5 Cal.4th 750... eeccseecssecesecssecseeteessseesaeeeessseeeeenaneasenteses 25, 26 In re Cudjo (1999) 20 Cal.4th 673 vce eescccssscsceesersecnseseeesecsaeeneesesaeeseeeesaesesseevsneeneees 28 In re Hamilton (1999) 20 Cal.4th 273 occeecccscssceeseeseeeeeeceerseesresessseeersesssteenasenas 29, 30 In re Hitchings (1993) 6 Cal.4th 97 oo ccscccseressecsseeseceeeeesecseeeeneeseeeeseseeersstennessnesaeons 29 In re Hochberg (1970) 2 Cal.3d 870...eeeccseceseeereeeneees Lésuuevseececoessseceeeuvssreuseuaesanseeses 26 In re Lucas (2004) 33 Cal. 4th 682.00... cccccscccsnecsssceneseeeseceeeaeesnseeeeseansersnsssessaesseeesnens 28 In re Reno (2012) 55 Cal.4th 428oeescccecescsnereesetseeeeesaesesessesseerssseseaesssreeeees 26 In re Sassounian — (1995) 9 Cal4th 535oceecccessceesessettesseceeesssensesesesceeeerssntseesesesesseneae27 In re Serrano (1995) 10 Cal.4th 447cecceeeencecseeenersescerseessenseessnecsesssssenseessasessaees27 ill TABLE OF AUTHORITIES (continued) Page In re Steele (2004) 32 Cal.4th 682 000... cecceccencessceeeneessesssescnsesseesseessnecenesneenateneentes25 In re Visciotti (1996) 14 Cal4th 325eeccssecscesecseetrecseesseeeseeseseeerseesneenes 26, 28 In re Williams (1994) 7 Cal.4th 572 ooo.ce cccccsceeeseeeeecceeaeessaeeesseeeseeeesesarenanesseseneenees28 Irvin v. Dowd | (1961) 366 U.S. 717 veceseeccecesceeeneeeesseesenecesseceesnecseeesestecenareeeeraeeaes29 McDonough Power Equipment, Inc. v. Greenwood (1984) 468 U.S. 548 ooceecssceeseceseeeseeeteecaessseeeeseerseeceeneesatenaseaeeaseaes29 People v. Bell (2007) 40 Cal.4th 582.0... ecseeeesseteestesesecereseeessetsesaneesoesevesenseceneesees ] People v. Cochran (1998) 62 CalApp.4th 826.00.eeeesceesseseesseeeseeesseecsceessatecsecenesnesensass29 People v. Collins (2010) 49 Cal.4th 175ieeaecsnsceseeseeesecsseessaeeesecereesesenesseseeseeseneas30 People v. Duvall . (1995) 9 Cal4th 464oecceecsseerseeeneessnesenseseseessneessaneeaes 25, 27, 28 People v. Dykes . (2009) 46 Cal4th 731 oo. ceceescesssecsnetscesseecsneeeseeeseetseceessneenserssereraeeats29 People v. Gonzalez (1990) SI Cal.3d 1179eceeeseseestccceacesnecteeecseesaceeeecesseeeseseessasessease25 People v. Hamlin (2009) 170 Cal.App.4th 1412oecescseeesecensaeeereetseesernnetaes 30, 31, 32 People v. Marshall (1990) 50 Cal. 3d 907 v0... eecesesesecsneceseerstecsaeesseressneesanevsnesesaeeeseseseeeentats 30 iv TABLE OF AUTHORITIES (continued) Page People v. Miranda (1987) 44 Cal.3d 57 oocccsscsseceseecesessaseseaeesaceeseeseseeeeseeeateatenteens 28, 29 People v. Nesler (1997) 16 Cal.4th 56] ooccecccssecssneeneseenecseeecsescseaeesseessevsesaeeeneenaeees29 People v. Romero (1994) 8 Cal4th 728occecsecsecsscessecsessseeceseeeseeessseesseasaneaeeerenss 26, 27 People v. Williams (1988) 44 Cal.3d 883 ooeeecsscessceesrereessseseneterarersanerseaveeeseseesseensaees29 Rushen v. Spain (1983) 464 U.S. 114 occcecccseceseesscessetecsecssecsaeeesaeeeeseceeneeeeeeaeeeaeeens 29 Smith v. Phillips (1982) 455 U.S. 209 ooo cceceessecseessesssaeseescnecsseeseeeeesaeesseseesaeeeeeeatenseees30 CONSTITUTIONAL PROVISIONS California Constitution, Article I § 16 ecccssccssesssessssesseecsecseveeseseeesesseeecsucessecessecsuceeeeecenesevaesenetseessserecneeeeas29 U.S. Constitution Amendment V1.0...eee eeeeeseeeeneeeeesetecnseesseensessaeseeates29 I. INTRODUCTION On June 4, 1992, after smoking crack cocaine, petitioner Steven M. Bell went to the homeofhis girlfriend intending to steal items to sell in order to buy more crack. Upon encounteringhis girlfriend’s 11-year old son, Joey, at the house, Bell stabbed Joey and, when Joey fell to the floor, stabbed him several more times and stomped on Joey’s head with his foot, killing him. Bell stole a television and radio, sold them, and used the proceeds to buy more crack cocaine, which he smoked with a woman companion.’ A San Diego County Superior Court jury convicted Bell of first degree murder with special circumstances. Bell was sentenced to death. This Court affirmed Bell’s conviction and sentence on direct appeal. (Bell, supra, 40 Cal.4th 582.) The United States Supreme Court denied certiorari. (Bell v. California (2007) 552 U.S. 825.) Bell filed the instant amendedpetition for writ of habeas corpusin this Court on June 22, 2009. On December10, 2014, this Court issued a reference order directing the referee to take evidence on and answerthe following questions: 1. Did juror M.H.discuss the jury’s deliberations, or any other aspect of the case, with her husband during her service as a juror? 2. If so, when did the conversation(s) occur? 3. What information or advice, if any, did M.H.’s husband give M.H.? 4. Did M.H.tell juror P.R. about a conversation between M.H.and her husband? 5. If so, when and what did M.H.tell P.R. about that conversation? ' A more detailed statementofthe facts is set forth in this Court’s opinion in People v. Bell (2007) 40 Cal.4th 582 (Bell).) The referee held an evidentiary hearing on these questions on September 25 through September 30, 2015. At the end ofthe hearing, the referee ordered the parties to file objections to evidence, and proposed findings of fact on the reference questions. (RT’ 580-591.) The parties filed their pleadings in December 2015. Argument wasthen held before the referee on January 29, 2016. (1/29/16 RT? 1-29.) The referee filed her Findings of Fact in this Court on March 21, 2016. | Asdiscussed below, Respondenthas no exceptionsto the referee’s findings of fact. And based on thosefindings, Bell has failed to meet his burden of proving his claim that Juror M.H. committed misconduct during his trial. Therefore, habeas corpus relief should be denied. II. REFERENCE HEARING A. Testimony 1. Petitioner’s Witnesses a. Juror M.H. M.H.was 80 years old at the time of Bell’s evidentiary hearing in 2015. She was in good health and wasnot taking any medications. (RT 76.) In 1993, M.H.served as a juror in Bell’s capital case. (RT 5.) It was a serious matter and she took her duties seriously. (RT 8.) M.H.recalled that Bell was ontrial for killing the son ofhis girlfriend. She did not rememberthe namesofthe attorneys who represented Bell. M.H. sat in the front row of the jury box. (RT 9.) One of the female jurors used a wheelchair. The foreman worked for the Department of Veteran’s Affairs. Two African-American jurors rode the trolley with M.H. (RT 10) They offered to take M.H. homeafter her car was stolen. (RT 10-12.) Another ? “RT”refers to the Reporter’s Transcript of the evidentiary hearing. 31/29/16 RT”refers to the Reporter’s Transcript of the evidentiary hearing closing arguments. juror was a professor at Costa Mesa College. His car was also stolen. (RT 11.) Duringthe trial, a woman on the jury was dismissed for talking to her husband about the case. (1 RT 11-12.) The juror or her husband wasin the Navy. At somepoint, jurors came to court and were told she had been removed from the jury. M.H. did not rememberif she learned the reason for the juror’s removal before orafter the trial was over. (RT 12-14.) M.H.did not remember P.R. Hearing her namedid not refresh M.H.’s recollection in any way. M.H. engagedin idle talk with jurors during the breaks. (RT 11.) M.H.probably mentioned the fact that she was married. (RT12.) M.H. had nospecific recollection of the guilt or penalty phase deliberations. There were discussions, votes, and additional discussions. (RT 15.) She did not recall the division among jurors when the penalty phase deliberations began, how jurors were divided at any time during deliberations, or how many votes were taken. (RT 16-18.) A penalty verdict was reached on December17, 1993. Asked if she recalled speaking to any jurors before entering the jury room onthatdate, or speaking to defense attorneys after the case was over, she said she did not. (RT 18-19.) She saw the jurors once after the trial was over,at a get- together at one of the juror’s homes. (RT 19.) In 2009, M.H. met with Susan Lake, an investigator for the defense. (RT 19-20.) Lake came to M.H.’s house, sat down on the sofa, put her personal items on the coffee table, and asked questions. (RT 20.) M.H. tried to answer the questionstruthfully. Lake later returned with a declaration for M.H.to review. (RT 21.) The declaration “is somebody else’s words. J mean they are not all my words. I meanit’s not verbatim. It’s the gist of what we talked about.” (RT 20.) M.H. had no specific memory of reviewing the declaration. (RT 22.) She readit over, signed and initialed it, and a copy was mailed to her. (RT 22-23.) In 2014, Special Agent John Wilde called M.H., explained he was working for the prosecution, said he was following up on her conversations with Lake which occurred in 2009, and told her that he wanted to hear her story about what happened. (RT 25-26.) M.H. assumedthat all of the investigative contacts were part of Bell’s appeals process. (RT 25.) Bell’s counsel asked M.H., “Okay,at the time you were speaking with Mr. Wilde, did you believe that speaking with your husbandprior to reaching a decision was in violation of the court’s instructions?” M.H. responded, “Yeah. I knew from the very beginning that we wouldn’t discuss it, and we didn’t discussit.” (RT 25-26.) Agent Wilde later came to M.H.’s house to talk to her. (RT 26.) M.H.did not recall if her husband Stephen was homeat the time. (RT 26.) Agent Wilde told M.H.that the defense had done their research, and now the prosecution was conducting research of its own. Early on, Wilde obtained M.H.’s permission to audio record the interview. (RT 27.) Agent: Wilde asked M.H. whether she had any conversation with family members, her husband,or friends regarding the Bell trial. She responded, “Um- hmm,” meaning she was unsure. She and Mr. H. had“talked aboutit after the trial was over, but wedid not during the deliberations.” (RT 28.) “He never asked me anything and he’s served on juries before so he knew not to.” (RT 29.) Asked by Bell’s counsel how Mr. H. knew he wasnot supposed to talk to M.H. duringtrial, M.H. responded, ““We probably had a discussion whenI first starting serving on it, you know,that I can’t talk about it. And he had been on several juries, so he knew notto talk.” Although M.H.did not specifically remembertelling Mr. H. they could nottalk, “It’s just I was told that and I wasn’t going to doit.” (RT 29.) “My husband did not ask me questions ... And! did nottell him anything.” (RT 31.) After the trial was over, M.H. told Mr. H.about the case. However, she continued, he is not the kind ofperson who asks questions. “He could care less.” (RT 35.) M.H.explained, “He doesn’t want to have my problemstoo.” (RT 35.) On April 29, 2014, Wilde returned to M.H.’s home with a written declaration, which M.H.signed. (RT 36.) M.H.noted that while paragraph 6 used the words, “presiding juror,” she would have referred to this person as the foreman. (RT 37.) In paragraph 9, the words “specifically recalled” and “verdicts were entered”are not a verbatim transcription of what she said. (RT 38-40.) M.H. continued, “Just the same as the declaration of Lake’s was not verbatim. She used words I would never have used. So I thought it was their presentation of our conversation, and it didn’t change the thinking.” (RT 40.) Bell’s counsel read paragraph 16 of P.R.’s 2009 declaration aloud to M.H. (RT 49-50.)* Counsel asked M.H., “Do those sentencesreflect your recollection of the events of the penalty phase proceedings in Mr. Bell’s case?” M.H responded,“Asfar as I’m concerned, those didn’t happen. | wasnot involved in that.” (RT 50.) Counsel asked, “Given the passage of time of 22 years, and the lack of recollection that you have about the events in 1993, as understandable, could P.R. be accurately recounting the “In this paragraph, P.R.stated: “Thelast day of deliberations, M.H. approached mein the hallway before we entered the jury room and confessed that she had broken down and spokento her husbandthe night before to see if he could help her out of her dilemma, and he advised her to change her vote. She said that she did not want to change hervote to death, but at the sametime she wastired ofthe trial lasting so long andtired of the pressures from other jurors to get things over with. She told me that she had decided to change her vote to death.” (RT 49-50.) conversation and you simply not remembering it?” M.H.’s response was, “Anything is possible, I guess, but I do not — absolutely do not — this sounds morelike the dialogue that went on with the excused juror.” (RT 51.) “Maybe P.R. has things mixed up. Where she says here, ‘had broken down and spokento her husband abouther dilemma,’ that’s not me.” (RT 52.) | On cross-examination by the prosecutor, M.H.testified that during trial, the court admonished jurors not to discuss the case with others whileit was ongoing. (RT 54-55.) M.H. took the admonishmentseriously and abided by it. (RT 55.) The following colloquy occurred: Q. Did you discuss this case during deliberations with a juror while not in deliberations? A. No. Q. How do you know that? What are you basing that on? A. Myrecollection, and who I am as a person. I don’t think I would have doneit. Q. Anddid you discuss this case with your husband Stephen H.during deliberations while this case wasstill ongoing? A. No, I did not. Q. What are you basing that statement on? A. On who I am, whatI had been told not to do, and you know, knowing that he wouldn’t have asked me and I wouldn’t have told him. Q. So is it fair to say that it’s not that you don’trecallit happening,it’s that it did not happen? A. If I don’t recall it happening,it did not happen. Q. I know they are two confusing concepts, butit is importantto be clear for the record. A. Well, I feel that I don’t recall it and I didn’t do it based on myrecall. (RT 65-66.) M.H. explained that during trial, she would have followed any of the court’s orders or admonishments. (RT 65.) She had no reason to believe she did otherwise in this case. While she certainly vacillated to a certain extent during deliberations, “I was neversitting on the fence, you know,totally, oh, agonizing over it. My thought process with the trial went from here to there and that was — the decision was the death penalty.” (RT 66.) The following discussion ensued: Q. And on direct, you talked little bit about your husband and how — I believe you said something along the lines of how you can make up your own mind and wouldn’t have relied on your husband. Is that true? A. I wouldn’t have relied on my husband,yes, thatis definitely true. (RT 66.) b. Juror P.R. P.R. was 88 years old at the time of Bell’s evidentiary hearing. Her health was very good. She wastaking two medications for high blood pressure. (RT 275.) P.R. remembered serving as a juror in 1993 ina capital case involving Bell. P.R. recalled that Bell was living with a girlfriend or female friend. She had a young son. The morning ofthe crime, Bell picked up a relief check. He joined some people down the street, cashed the check, and used the money to purchase drugs. Meanwhile, the boy had been sent home from school. Bell ran out of drugs and wanted money to buy more drugs. (RT 78.) He went home,intending to take the television set and sell it. Bell was surprised to find the boy home onthe bed, watchingtelevision. There was a struggle. The boy was killed, and Bell took the television set. (RT 79.) Su pe a p s e P.R.testified that Bell’s trial attorneys were Ms. Leonard and Mr.List [sic: Liss]. She described the prosecutoras a “‘tall, professional-looking man.” Judge Murphy wasthetrial judge. (RT 79.) During jury selection, P.R.filled out an extensive questionnaire. (RT 80.) Attrial, she sat in the middle of the second row of the jury box. (RT 81-82.) M.D. was the jury foreman. Another man about the same age as M.D.wasonthe jury, as well as two African-American men, a woman named Nancy, and M.H. Nancy wasthe alternate. Someone wasdismissed from the jury and Nancy was that person’s replacement. (RT 84.) P.R. described M.H.as “tall” and “brunette.” Because the two women were about the sameage, they gravitated towards one another. P.R. did not learn very much about M.H.’s family. M.H.did say her husband’s mother was developing dementia, they were concerned abouther, and at somepoint a family memberhad to pick her up. P.R. did not remember any other family talk. (RT 84.) She did not recall how the jury was divided, if at all, during the guilt phase or any particular aspects of the deliberations. (RT 86-87.) P.R. spoke to Susan Lake. (RT 87.) P.R. signed a declaration after talking to Lake, which she reviewed for accuracy. (RT 87-88.) P.R. made some handwritten changesto the declaration. (RT 88.) She looked at the declaration recently, and it helped refresh her recollection of events which occurred in 1993. (RT 89.) However, shestill did not recall the guilt phase deliberations, other than the factthat all jurors had to agree. (RT 89-90.) Askedif she recalled anyone being dismissed from jury service, P.R. responded,“I can’t be sure.” (RT 89-90.) A young female juror wasin the Navy. (RT 91-92.) Shedid leave the jury, but P.R. did not remember why. P.R. then testified the juror was dismissed because she talked to someone else about the case, “[b]ut I may be getting it confused with this young woman mentionedin [paragraph] number 9 [of my 2014 declaration].” (RT 92.) P.R.’s jury service ended on December17, 1993, when the jury reachedits verdict in the penalty phase ofthe trial. (RT 96.) Penalty phase discussions were heated and went on for several days. (RT 96.) Near the end, P.R., M.H., and someoneelse were the only onesin favoroflife without parole. (RT 97.) And,“{t]hat’s as much asI can recall.” (RT 96.) P.R. did not recall speaking to anyone right before entering the deliberation room onthe last day of the penalty phase deliberations. She re-read her 2009 declaration, in which she stated she did speak to someone. At present, she could not visualize or rememberthat conversation. (RT 98.) She had a “fleeting kind of vague memory that [M.H.] kind of stage- whispered to me as we were going in.” (RT 99-100.) Asked, “What do you recall M.H.saying to you onthe last day oftrial,” P.R. responded,“It was just we wereboth struggling, she just kind of— I don’t know — we went in together and she said my husband helped medecide,and it was kind of a stage whisper.” (RT 103.) P.R. added that her current memory of what happenedwas“very dim,fleeting kind of statement she made as we were going in.” (RT 102.) M.H. made the statement before the jury reachedits verdict. (RT 103.) It consisted of one sentence, “My husband helped me decide.” (RT 104.) P.R. saw her fellow jurors onceafter the trial was over. (RT 106.) A juror named Wendyhosted a party at her home. Most of the jurors were there. M.H. was not. Also, one of Bell’s attorneys called her after the case was over. (RT 107.) In response to defense counsel’s inquiry, “What do you recall of that conversation,” P.R.testified, “Specifically, I have difficulty remembering.” (RT 107-108.) He called her and wanted her opinion aboutthe defense case, and how jurorsfelt the attorneys had done on behalf of Bell. (RT 108.) Returning to the subject of her discussions with defense investigator Lake, P.R.testified that Lake called her and made an appointment. When Lake cameover, she asked P.R.a lot of questions about Bell’s trial. (RT 109.) Lake came over again and asked herto review draft declaration. (RT 110-111.) She reviewedit carefully. (RT 111.) She made some changes, which Lake wrote down and had herinitial. (RT 111-112.) P.R. _ also put her initials at the bottom of each page, and signed the declarationat the end. (RT 112-113.) Her memory wasbetter in 2009 than at present (2015). (RT 113, 136.) Bell’s counsel read the 2009 declaration to P.R. paragraph by paragraph, asking her after each paragraph if she remembered those events. In some instancesshe did, in others, she did not. (RT 137-173.) Bell’s counsel asked P.R. about paragraph 9 of her 2014 declaration, in which she stated, “On the last day of penalty phase deliberations, as we entered the court room, [M.H.] whispered to me that she had asked her husbandto help her decide.” P.R.testified, ““That’s how I rememberedit rather than the wayit was written up from Susan Lake’s — it differs quite a bit.” (RT 127.) “We’re looking at two different memories of it at two different time frames ... And at the time I spoke with Mr. Wilde, this is what it had become .. . It diminished to where I didn’t remembera big conversation in the hall.” (RT 128-129.) Askedspecifically about paragraph 16 of her 2009 declaration, M.H. testified she would not use those words today. (RT 166.) Some ofit was inaccurate, and “I rememberit differently.” She did not speak with M.H.in the hallway. (RT 167.) Rather, “[w]e were going into the jury room and she said it to me in many less wordsthan this.” (RT 167-168.) “It isn’t that M.H. approached me and had a conversation in the hallway.” “It was not that much of a conversation.” (RT 168.) They did not have the long conversation reflected in the declaration. (RT 169.) There wasa fairly 10 brief discussion and M.H.said, “My husband helped medecide.” (RT 169- 170.) On cross-examination, P.R. testified she did not recall the fact that a defense investigator named Tom Crompton interviewedher on June 27, 2005. (RT 177-178.) She continued, “I guess I can’t be sure, but it seems like something I would remember.” (RT 178.) She has served on total of five juries, with Bell being the third and most serious ofthe five cases. (RT 192-193.) P.R. took her duties seriously. At eachtrial, including Bell’s, the court admonishedjurors not to discuss the case outside of deliberations. (RT 193.) The court read the admonition several times throughoutthetrial and P.R. knew whatit meant. (RT 194.) Other than “that reference to M.H.and I having words with each other .. . I never spoke to anyone.” (RT 193.) Within a month after the trial was over, P.R. learned, by reading an article in the paper, that a juror was dismissed for discussing the case with her husband. (RT 194-195.) In January or February 1994, after P.R. read the article, she spoke to defense attorney Liss. (RT 196.) Liss called her and wantedto talk about the case. (RT 196-197.) P.R. did not remember the details of the conversation. She never told Liss about M.H., explaining, “I don’t think I discussed it with him. I wouldn’t have unless he asked me.” P.R. agreed that the call would have been a good opportunity to reveal the information to Liss. (RT 197.) She should have, but did not. (RT 197-198.) She did not tell anyone about M.H.until she spoke to Lake in 2009. When she and Liss spoke, the events occurringat trial were fresher in her mind. (RT 198.) The prosecutor asked P.R., “When did you realize it [the conversation with M.H.] was important? That it might be important?” P.R. responded, “Probably not until that first declaration. It didn’t register as that important.” (RT 199.) “I knew that’s not right, but it didn’t register as that important.” The prosecutor asked P.R.if it was 1] possible that she was confusing M.H.with A.G., the juror who was excused for talking to her husband. P.R.’s response was, “No, no, no.” (RT 201.) When P.R.testified she did not recall much about her conversation with Liss (RT 202), the prosecutor had her review a five-page memo dated February 14, 1994. (RT 216-220.) P.R. then recalled that Liss asked her aboutthe deliberation process, but did not rememberhim asking her what caused jurors to changetheir votes, her personal feelings, and whether everything, including the penalty phase, was aboveboard. (RT 221-222.) P.R. had no motive to lie to Liss. The events would have been fresher in her memory than they were in 2009 and in 2014. She never told Liss about her conversation with M.H. (RT 222.) Atthis point in her testimony, she admitted that it would have been importantto tell him. (RT 223.) P.R.testified that although M.H.wasthe only person she|wasfriendly with on the jury, they were not that close. (RT 226-226.) They did not go to coffee on breaks or eat lunch together. (RT 227.) When P.R. spoketo ' Agent Wilde, she told him she was not even sure M.H. wasa jurorin Bell’s case. (RT 230-231.) Wilde confirmed that M.H. was a juror and P.R. became more comfortable with the idea. P.R.’s memory in 2015 was better than it was whenshe talked to Wilde over a year earlier. (RT 231.) P.R. told Agent Wilde another juror was dismissed becauseshe did not want to be there. At the time, P.R. did not recall any type of misconduct. (RT 232.) P.R. had forgotten the juror was excused for speaking to her husband. (RT 234.) P.R. also thought that two jurors were excused, one because she did not want to be there and another because she talked to her husband. (RT 234-235.) P.R. was confused as to whether there were two different people. (RT 235.) At the time, she thought a juror asked to leave and waslet go. She later learned the juror was dismissed. (RT 236.) 12 P.R. again testified that her conversation with M.H.wasfleeting. They were getting ready to go into the jury room and M.H.whispered, “My husband helped me decide.” (RT 236.) She did not say anything else. (RT 232-233.) M.H. spoke in a whisper and no one else would have heard her. (RT 237.) Her exact words, “as I rememberit,” were, “My husband helped meto decide.” (RT 239.) P.R. acknowledged that when she spoke to Agent Wilde 18 monthsearlier, she was unable to provide him with any details about what M.H.said. (RT 242.) Onredirect examination, P.R.testified she had no clear memory of A.G., who was dismissed during the guilt phase deliberations. The two nevertalked during jury service. (RT 254.) Bell’s counsel asked, “As you sit here today, do you know how manyjurors were removed from jury service?” P.R. responded,“I guess it was only one.” (RT 255.) Bell’s counsel asked P.R. abouther failure to tell defense attorney Liss about her conversation with M.H.: Q. Whydidn’t you tell Mr. Liss about your conversation with M.H.? A. ... ] had not done the proper thing, and I didn’t feel that he was a confidant of mine that I was going to share ~ if I was going to bring that up, it would not have been him and overthe telephone. Q. And you rememberhaving that feeling when you were speaking with him? A. Well, I don’t remember. I probably wasn’t — in all the conversation, I probably wasn’t thinking aboutthat particular thing. Q. But you didn’t volunteer the information? A. No, I didn’t. (RT 260-261.) 13 On re-cross examination, the prosecutor reminded P.R.that earlier, she hadtestified that she did not tell Liss about her conversation with M.H. becauseshe did not think it was important, while she was nowtestifying she did nottell him because he was not a confident. The prosecutor asked P.R. which ofthose reasons wastrue. (RT 265-266.) P.R.’s response was, “Well probably both of those things.” (RT 266.) Asked, “Is it fair to say [Susan Lake] wasn’t a confidanteither,” P.R. responded, “No,and I actually didn’t realize the importance of what she wantedto talk about.” (RT 267.) P.R. acknowledged that she never contacted the court, the district attorney, or defense counsel to inform them of her conversation with M.H. (RT 267-268.) The prosecutor asked P.R. when the conversation occurred. P.R.said, “That’s a bit confusing becauseit’s written one place that going into the jury room,and think it’s Mr. Wilde’s writing that says as weentered the courtroom, so I’m confused. I thought it was as we wentinto the jury room. That seers more logical.” (RT 268.) However, P.R. was not sure exactly when the conversation occurred. (RT 268.) P.R. again admitted that when she first met with Agent Wilde, she recalled there was sometype of conversation, but not what it was about. (RT 272-273.) When Wilde returned with the declaration, she recalled M.H. whispering, “My husband helped me decide.” (RT 273.) c. Defense Investigator Susan Lake From 2004 through 2009, Susan Lake was an investigator with the Habeas Corpus Resource Center [HCRC]. She interviewed M.H.and P.R. (RT 277.) Lake identified handwritten notes she took during the interviews. (RT 278.) She took the notes so she could relay information to the HCRCattorneys, in case there were follow up questionsor a declaration needed to be prepared. (RT 283.) 14 Lake spoke to M.H. at M.H.’s home in May 2009. (RT 278.) She handed M.H.herbusinesscard, identified herself as an investigator with HCRC,and asked M.H.if she would be willing to talk about her service as a juror. M.H. agreed. (RT 279.) M.H. said she remembered very little about the penalty phase deliberations. (RT 283.) After talking to M.H., Lake spoke to P.R. at P.R.’s house. (RT 283-284.) She introduced herself in the same way as she did with M.H. They talked for about an hour and a half. (RT 284.) Lake did not know beforethat interview that P.R. and M.H. were supposedly friendly, or that there was possible misconduct by M.H. Lake took notes during the interview. (RT 285.) Lake followed up with P.R. two more times. No notes were taken during the first follow-up interview. (RT 285-287.) At the second follow- up interview, Lake brought P.R. a declaration. She handed P.R.a copy, kept a copy, and read each paragraph aloud. Shetold P.R.to stop her if she had questions or concerns, or wanted anything changed. (RT 287-288.) Whenshegotto the third paragraph, P.R. asked her to change the word “clamoring” to “arguing.” Lake wrote in the change and P.R.initialedit. (RT 288.) P.R. had Lakecross out a portion of paragraph 4, saying she was not comfortable leaving this sentence in the declaration. (RT 288-289.) She also wanted paragraph 16 to be more specific. (RT 289.) Lake wrote the changes into paragraph 16, told P.R. she would consult with an attorney about the changes, and left. (RT 289-290.) Lakereturned to M.H.’s hometo interview her again. Lake asked M.H.if she remembered P.R. M.H.said she did not, but might if she saw a photograph of her. (RT 290.) Lake showed a photo to M.H., but M.H.still did not remember P.R. (RT 291-292.) Lake asked M.H.if she remembered talking to her husband aboutthe trial before the last day of deliberations. M.H.said she did not remember whethershetalked to him or not. (RT 15 292.) Lake did not take notes of the contact because it was brief and “there was no reason to take notes.” (RT 290.) Lake went back to M.H.with a declaration. Lake gave M.H. a copy and read it aloud while M.H. read along. (RT 291.) There wereno corrections. M.H.initialed each page and signed the last page. (RT 292.) On cross-examination, Lake testified she was aware that in 2005, a defense investigator named Tom Crompton contacted P.R. (RT 302-303.) Lake furthertestified she did not have any background as a sworn peace officer. (RT 304.) She did not receive formaltraining in drafting reports, conducting interviews, or documenting them. (RT 304-305.) She did not write reports of her interviews with P.R. and M.H.butrather, took notes and drafted declarations. (RT 306.) Taking notes distracts her from being able to listen. She was confident that errors could be corrected during the declaration process. (RT 307.) It was not her standard practice to write a report because the declaration,“in a way . . . it’s memorializing the conversation.” (RT 308.) Lake met with P.R. three times. Thefirst meeting was on May 28, 2009. (2 RT 351.) Lake took notes but did not draft a report. (RT 351- 352.) The notes are four and a half pages with every other line crossed out. (RT 355, 362.) Lake did not have a clean copy of the notes. (RT 355-356.) The notes give the date of the interview ~ May 28, 2009 — but not the time of day. (RT 356.) Lake did not audio-record any ofherjuror interviews, because “I don’t think it’s good practice.” (RT 352.) Lake felt that jurors did not speak freely if they were audio-recorded. (RT 352-353.) At the time of the interviews, Lake knew she wasinvestigating potential claims of juror misconduct, and that (in 2009), P.R. was 82 years old. (RT 352.) After interviewing P.R., Lake telephoned an attorney from HCRC. The attorney directed her to conducta follow-up interview. (RT 353.) Lake interviewed P.R. again on June 1, 2009. She did not record the interview, write a report, or take any notes. (RT 364.) Lake continued, “I just did not take notes. For whatever reason, I’m just confident that I didn’t take notes, being confident that I would remember what — whatever was said, and that if I didn’t, for some reason, remember, then I — I would have no qualmsfollowing up with her again.” (RT 367.) Lake could not remember what P.R.said in her June | interview, or what she specifically said in her interview on May 28 about her conversation with M.H. (RT 368, 370, 375-376.) “All I can say is, I am confident that I got it right with her.” (RT 375.) Lake added, “I cannot say it’s [the declaration is] verbatim as if it were an audio recording, but I can tell you what she told me in my own words.” (RT 371.) Lakealso testified if she were told something very important, she would not take notes because she wascertain she would remember what was said. (RT 374.) Lake’s first meeting with M.H. was on May 27, 2009. (RT 378.) Lake took two and a half pages of notes. (RT 379, 382.) In the copy of the notes, each line is crossed out. (RT 382.) The notes do not documentthe date, time, or circumstancesofthe interview, although the date is indicated in a program called “Case Map.” (RT 379-381.) P.R. was not discussed during this contact and there was nothing unusualaboutit. (RT 382.) On June 12, 2009, after meeting with P.R., Lake spoke to M.H.again. (RT 282, 284.) Lake did not take notes because she was not asked to. She did not audio record the meeting nor did she prepare a report about it. (RT 382.) Taking notesis distracting and audio-recording causes “people [to] get self-conscious and freeze up.” (RT 385, 387.) Lake could notrecall whatshe and M.H.discussed at their meetings on May 27 or on June 12. (RT 385-386, 388.) The June 12 meeting was much shorter. (RT 385.) While it was clear to Lake that M.H. said she did not remember whetheror not she had spoken to her husband,“[t]he words are never verbatim in a declaration.” (RT 389.) During the June 12 interview, Lake showed M.H. 17 a photograph of P.R. (RT 390-391.) She never showed P.R. a photograph of M.H. (RT 390.) She did not contact or interview Mr. H. (RT 392-393.) The referee directed Lake to paragraph 16 of P.R.’s declaration stating M.H.had “broken down and confessed,” and asked Lake, “Who came up with the word, ‘confessed?’” The following colloquy ensued: A.: ’m not certain if that was the juror or that was me. I’m guessing it was her because in the handwritten part, she had me write ‘dilemma’ and that — those were her wordsin... paragraph [16]. Q. Did you choose the word ‘dilemma’ or did Mrs. R.? A. In the typed declaration? Q. Yes. A. I don’t recall. Q. Is the word ‘dilemma’ in your handwritten notes? . . . A.: No. (RT 410-411.) Lake acknowledged that there was nothing in her notes reflecting the contents of any conversation between P.R. and M.H. (RT 211.) Lake did not recall when she drafted P.R.’s declaration but it was probably before June 1. Lake “would have” changed the declaration if anything new wassaid on June 1. The referee asked Lake,“Where are the changeson this declaration from the June 1 meeting?” Lake responded, “Um, they’re —I guess they’re lost.” (RT 412.) d. Prosecution Investigator John Wilde In February 2014, the California Attorney General’s Office, counsel for respondent, assigned Special Agent John Wilde to investigate allegations ofjuror misconduct in Bell’s case. (RT 429-431.) The investigation focused on whether one juror had spokento her husband 18 while the trial was ongoing. Agent Wilde’s goal wasto seek the truth. (RT 432.) Agent Wilde reviewedthe casefiles, reports, and previous declarations submitted by M.H. and P.R. He contacted M.H., Stephen H., and P.R. (RT 432.) He called M.H.and P.R. beforehand, informing them that he was from the California Attorney General’s Office, the Bell matter was currently on appeal, and he would like to speak with them. (RT 433, 501-502.) He talked to M.H.first, on February 25, 2014, in her home. (RT 432-433.) He presented her with his peace officer badge, explained who he was working for and'whyhe wasthere, and obtained her permission to audio record the interview. (RT 434-435.) After it was over, he prepared an investigative report. (RT 437.) Since the interview was recorded,there is nothing of substance in the report. (RT 437-438.) Agent Wilde asked M.H. what she currently remembered, then read each paragraphofher 2009 declaration to her. (RT 444.) Asked after each paragraphif it was accurate, M.H. responded, “Yes.” (RT 444-447.) M.H. never indicated she left anything out or that there were any mistakes in the declaration. (RT 446, 448-449.) Agent Wilde returned to M.H.’s home with a declaration which documented whatshe said during the interview process. (RT 449, 451.) She seemed to understand she was signing the document underpenalty of perjury. The declaration was prepared by oneofthe legal professionals in the Attorney General’s Office. (RT 454-455.) While M.H. used the word “foreman,” the declaration changedit to “presiding juror.” (RT 458.) Also, M.H.said, “He [my husband] never asked me anything,” but did not use the phrase, “verdicts were entered.” (RT 461.) Agent Wilde did not record this second meeting with M.H. (RT 483- 484.) It was not an official interview or a fact finding event. (RT 484, 487.) If she had said something different, he would have documentedit 19 and provided her with an amended declaration. (RT 484-485.) He had his recorder with him and would have attempted to record any major changes. (RT 486.) On May 1, 2014, two daysafter MH. signed her declaration, Wilde prepared an investigative report. (RT 487-488.) On March 13, 2014, Wilde spoke to P.R. (RT 501.) The interview wasaudio recorded. (RT 503.) Agent Wilde did notrecall if he also took notes. (RT 503-505.) After the interview, someonein the Attorney General’s Office drafted a declaration. (RT 505-506.) On April 30, 3014, Agent Wilde brought the declaration to P.R. P.R.read it to herself. (RT 515-516.) Agent Wilde did not prepare a report of this contact because he did not feel one was necessary, and he discussed the matter with a deputy attorney general who confirmed that there was no need for a report. (RT 516, 537-538.) P.R. made handwritten changes on the draft declaration. An amendeddeclaration reflecting those changes was prepared and signed. (RT 529-530, 533.) On cross-examination, Wildetestified that he had been a special agent with the California Departmentof Justice for 13 years. (RT 541-543.) For the five years before that, he was an officer with the San Diego Police Department. (RT 543.) | Agent Wilde used a digital recorder to audio-record his March 13, 2014 conversation with P.R. (RT 544.) He wanted to record the interview because she waselderly and to capture her exact words. (RT 545.) When he asked her about her conversation with M.H., she was unableto recall any details. (RT 545-546.) She seemedto be speculating about whether M.H. was even on the jury. (RT 550.) When P.R. saw her 2009 declaration, she felt it confirmed that M.H. wasin fact on the jury. However,it did not appear as though her memory wasrefreshed. (RT 551.) P.R. did not provide specifics until the second interview on April 30. (RT 546.) Agent Wilde memorialized the information by making 20 appropriate changes to P.R.’s declaration. (RT 547.) At the time he went to see her, he expected that they would review the declaration and she would sign it. (RT 552.) Agent Wilde believed it accurately reflected his interview with P.R. (RT 552-553.) When P.R. gave additional details, he wrote them down onthe draft declaration, which she did not sign. (RT 553.) Instead, he returned on May 1, 2014 with a modified declaration. P.R. signed it and did not say anything new. (RT 553-554.) Agent Wilde furthertestified that he drafted eight reports documentingthe results of his investigations and contacts. (RT 555.) 2. Respondent’s Witnesses a. Stephen H. Stephen H., M.H.’s husband, was 79 years oldat the time of the evidentiary hearing. (RT 415-416.) He had previously been on twojuries. (RT 416-417.) In one ofthetrials, he was the jury foreman. (RT 417.) Both trials were before Bell’s case. (RT 417-418.) In both instances, the court madeit very clear from the outset that jurors were not to discuss the case outside of deliberations. (RT 417.) Asked whether, at the time of the Bell trial, he was aware he wasnot to discuss that case with M.H., Mr. H. responded, “Yes, very much.” (RT 418.) Mr. H. denied talking to M.H.while the trial was ongoing. He was not interested in the case and knew she was not supposedto talk to anyone. He added,“I just don’t like to talk, and I don’t like to ask questions, and I don’t like to listen either.” “I know that I would not have discussed the case with her.” (RT 419.) Mr. H. knew M.H.wasserving on a murdertrial, but knew nothing else about the case. (RT 419-420.) He would not have asked anything aboutthe trial: “I don’t ask. I’m just not interested.” (RT 426.) Mr. H. explained: 21 M.talks all the time, and I don’t know whoshe’s talking to. Sometimesshe talks to the cat. I do not listen. I don’t listen to M. muchand I — of course, I get scolded all the time aboutit, but I’m notinterested in any ofthat stuff. I mean, I’m interested, but I’m not interested in what she has to say. She knowsit. She knowsI have selective listening and I don’t rememberit. And she’ll ask me five minutes later, and I won’t rememberit and I’m notlistening. (RT 426.) B. Referee’s Report Asnoted, this Court’s reference order asked the referee to hold an evidentiary hearing and makefindings of fact on five questions. Each of these questionsis discussed below. 1. Question No. 1 Thefirst question asked whether, during her service as a juror, M.H. discussed the jury’s deliberations, or any other aspect of the case, with her husband, Stephen H. The referee found that there wasinsufficient credible evidence to conclude that M.H. spoke to Mr. H. during her service as a juror. (Rep., p. 18.) The referee observed that M.H.“was a very coherent and responsive witness.” (/bid.) As a juror, she was awareofthe admonition not to speak to anyone about the case. She tookthe admonition seriously. Her testimony wasfairly consistent that she did not, and would not have, talked to Mr. H. about the case or asked him to help her decide how to vote. Her testimony was supported by that of Mr. H., whoalso testified they did not talk about the case during deliberations. He had served on juries before and knew that such discussions were prohibited. (Ibid.) Mr. H.also testified he was not interested in talking toMH. about the case, or in asking her any questions aboutit. (Rep., pp. 18-19.) It is therefore unlikely, the referee stated, that Mr. H. would discuss the case with M.H.or help her decide how to vote. (Rep., p. 19.) 22 Additionally, the referee found that while P.R. was not lying when recounting her versionofthe conversation she thought she had with M.H., her memory was questionable. (Rep., p. 19.) Whenshetestified at the evidentiary hearing, she had significant trouble following questions and there were long pauses in her answers. When she was asked about her 2009 declaration, she did not recall many of the events describedinit. (/bid.) Further, the 2009 declaration, particularly paragraph 16, did not appearto be an accurate record of what P.R. said. Given P.R.’s advanced age when Susan Lakeinterviewed her, Lake should have recorded the interview. And, Lake’s notes of the interview were cryptic, makingit unclear what P.R. actually recalled in 2009. (/bid.) The sole admissible evidence before it on the contents of the conversation, the referee stated, was P.R.’s testimony that M.H.said, “My husband helped me decide.” Because P.R. did not mention this conversation to defense attorney Liss when she spoke to him shortly after trial, even though it appears she was aware anotherjuror was dismissed for speaking to her husband,it was possible P.R. was confusing the two jurors. (Rep., p. 19.) Finally, the referee found, even if M.H.did say, “my husband helped medecide,” there was no evidenceas to “what he helped her decide.” (Rep., p. 19, emphasis in original.) At one point P.R. affirmed M.H.said he helped her decide “the penalty phase of this case,” but this was in response to a leading question and P.R. did not use the phrase at any other point during her testimony. (/bid.) 2. Question No. 2 The second question asked whenthe conversation(s) between M.H. and Stephen H., if any, occurred. The referee concluded, “There is not sufficient, credible evidence to find that M.H. and Stephen H.discussed [Bell’s] case at all while it was ongoing. Any conversation about the case 23 between M.H.and her husband occurred after trial was over, as M.H. testified[.]” (Rep., p. 19.) 3. Question No. 3 The third question asked what information or advice, if any, Stephen H. gave M.H. The referee found that there was no evidence Mr. H. gave M.H.any information or advice about the case. (Rep., p. 20.) 4. Question No. 4 | The fourth question asked whether M.H.told P.R. about a conversation between M.H.and her husband. The referee found that the sole evidence was that M.H.told P.R., “My husband helped medecide.” However, the referee continued,“it is questionable whetherthis conversation even occurred. In addition, it is not clear what M.H. may have been referring to.” (Rep., p. 20.) 5. Question No. 5 The fifth question asked when and what M.H.told P.R. about her conversation with Stephen H., if anything. The referee found that the statement, “‘My husband helped medecide,’ if it occurred at all,” was made on the last day of deliberations, before jurors entered the deliberation room. (Rep., p. 20.) Thereferee noted that while P.R. was not quite sureif it took place at that time or upon entering the courtroom before the verdicts were read, for the mostpart she testified it was before entering the jury room. She said the same thing in her 2009 declaration. The referee concluded, “TH]owever,this court finds insufficient credible evidence that the conversation between M.H.and P.R.occurredat all.” (/bid.) 24 III. EXCEPTIONS TO THE REFEREE’S FINDINGS OF FACT Respondent has no exceptionsto the referee’s findingsof fact. IV. ARGUMENT ON THE MERITS In claim six, subclaim 7(b) of his amendedpetition for writ of habeas corpus, Bell alleges, “[JJuror [P.R.] reported that Juror [M.H.] talked to her husband onthe night before the verdict was returned.” (Amended Pet.at pp. 196-197; see also Order to Show Cause.) In subclaim 7(c) of claim 6, Bell alleges, “The prejudice to Mr. Bell resulting from [M.H.] discussing the case with non-jurors and being influenced by those interactionsin [her] sentencing decision[] is patent. Moreover, the misconduct... had a substantial and injurious effect and/or influence on the jury’s determination of the penalty.” (Amended Pet. at p. 197.) After extensive investigation, discovery, and a two-day evidentiary hearing,it is apparent that Bell’s claim is unfounded. Accordingly, Bell has not demonstrated his entitlement to habeasrelief. A. Relief on Habeas Corpus 1. All Presumptions are In Favorof the Judgment Habeas corpusis an extraordinary remedy. (/n re Clark (1993) 5 Cal.4th 750, 764, fn. 3.) Because a petition for writ of habeas corpus collaterally attacks a presumptively final criminal judgment, “the petitioner bears a heavy burdeninitially to plead sufficient groundsforrelief, and then later to prove them.” (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall), emphasis in original .) “{A]!I presumptions favorthe truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1260, superseded by statute on other groundsasstated in /n re Steele (2004) 32 Cal.4th 682, 691.) “Although habeas corpusthus acts as a ‘safety valve’ [citation] for cases in which a criminaltrial has resulted in a 25 miscarriage ofjustice despite the provision to the accusedoflegal representation, a jury trial, and an appeal, this ‘safety valve’ role should not obscure the fact that ‘habeas corpusis an extraordinary, limited remedy against a presumptively fair and valid final judgment.’ [Citation.]” (/n re Reno (2012) 55 Cal.4th 428, 450.) Collateral attack by habeas corpusis limited to challenges based on newly discovered evidence, claims going to the jurisdiction of the court, and claims of constitutional dimension. (/n re Clark, supra, 5 Cal.4th at pp. 766-767.) A habeas corpuspetitioner “bears the burden of establishing that the judgment under whichheorsheis restrained is invalid. To do so, he or she must prove, by a preponderance of the evidence,facts that establish a basis for relief on habeas corpus.” (dn re Visciotti (1996) 14 Cal.4th 325, 351, citations omitted.) 2. An Order to Show CauseReflects a Preliminary Assessment That a Petitioner Has Stated Facts Which,if Proved, May Entitle Him to Relief The function of the writ of habeas corpusorits alternate, the order to show cause, is to “institute a proceeding in whichissuesoffact are to be framed and decided.” (dn re Hochberg (1970) 2 Cal.3d 870,875,fn. 4; People v. Romero (1994) 8 Cal.4th 728, 738 (Romero).) The writ or order is the means by whichissues are joined (throughthe return and traverse) and the need for an evidentiary hearing determined. (Romero, supra, 8 Cal.4th at p. 739.) Once the issues [are] joined ... the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. Conversely, consideration of the written return and matters of record may persuade the court that the contentions advancedin the petition lack merit, in which event the court may deny the petition without an evidentiary hearing. Finally, if the return and traverse reveal that petitioner’s entitlement to relief 26 hinges on the resolution of factual disputes, then the court should order an evidentiary hearing. Because appellate courts are ill-suited to conduct evidentiary hearings, it is customary for appellate courts to appoint a referee to take evidence and make recommendationsasto the resolution of disputed factual issues After the evidentiary hearing, the court ...will then either grant or deny relief based upon the law andthe facts as so determined. (Romero, supra, 8 Cal.4th at pp. 739-740, internal citations omitted.) The order to show cause “does not . . . establish a prima facie determination that petitioneris entitled to the relief requested. Rather, it signifies a ‘preliminary determination that the petitioner has made a prima facie statementof specific facts which, if established, entitle [petitioner] to habeascorpusrelief under existing law.’” (Un re Serrano (1995) 10 Cal.4th 447, 455, quoting In re Hochberg, supra, 2 Cal.3d at p. 875, fn. 4.) This Court hasalso stated: In issuing an order to show cause . . . a court makes “an implicit preliminary determination”as to claims within the order that the petitioner has carried his burden ofallegation,thatis, that he “has made a sufficient prima facie statement of specific facts which, if established, entitle him to... relief... .That determination, it must be emphasized,is truly “preliminary.” [I]t is only initial and tentative, and not final and binding. In issuing the order to show cause, the court also makes “‘an implicit determination”as to claims outside the order that the petitioner has failed to carry his burden ofallegation, that is, that he has “failed to make a prima facie case... .” That determination is not preliminary. It may, of course, be changed. But unless changed,it stands. (In re Sassounian (1995) 9 Cal.4th 535, 547, emphasisin original.) The order to show causedirects the respondent to address the “claims raised in the petition and the factual bases for those claimsalleged in the petition.” (Duvall, supra, 9 Cal.4th at p. 475.) “When an order to show cause doesissue, it is limited to the claimsraised in the petition and the 27 factual bases for those claimsalleged in the petition. It directs the respondentto address only those issues.” (Jn re Clark, supra, 5 Cal.4th at p. 781, fn. 16; People v. Miranda (1987) 44 Cal.3d 57, 119, fi 37 (Miranda) [limiting issues in order to show cause was an implicit determination that defendant failed to make a prima facie case as to the other issues presented by petition].) 3. When Supported by Substantial Evidence, the Referee’s Factual Findings are Entitled to Great Weight A referee’s findings of fact are not binding on this Court, but are given great weightif they are supported by substantial evidence. (/n re Visciotti, supra, 14 Cal.4th at p. 345.) “The deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanorofwitnesses andtheir manneroftestifying. [Citations.]” (Un re Williams (1994) 7 Cal.4th 572, 595, internal quotation marks omitted.) “Deferenceto the referee is particularly appropriate on issues requiring resolution of testimonial conflicts and assessmentof - witnesses’ credibility[.] [Citation.]” (Jn re Boyette (2013) 56 Cal.4th 866, 877, internal quotation marks omitted.) This Court assume[s] the referee considered . . . discrepancies [in testimony], along with the witness’s demeanor, before concluding he wasa credible witness. [Citation.]” (Jbid., internal quotation marks omitted.) This Court independently reviews the evidenceto “determine whetherit supports the referee’s findings and conclusions.” (dn re Cudjo (1999) 20 Cal.4th 673, 688.) “Any conclusions of law, or of mixed questions of law and fact, are subject to independent review.” (In re Lucas (2004) 33 Cal.4th 682, 694.) 28 4, Petitioner Has Failed to Carry His Burden of Showing There Was Juror Misconduct A criminal defendant has a federal andstate constitutional right to a fair and impartial jury. (Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110; U.S. Const., Amend. VI; Cal. Const., art. I, § 16.) An impartial jury is one where no memberhas been subject to improper influence (People v. Nesler (1997) 16 Cal.4th 561, 568), and every juroris “‘capable and willing to decidethe case solely on the evidencebefore it.’ [Citation.]” (McDonough Power Equipment, Inc.v. Greenwood(1984) 468 U.S. 548, 554.) Whena jurordirectly violates “the oaths, duties and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors,”the juror’s actionis referred to as “juror misconduct.” (Jn re Hamilton (1999) 20 Cal.4th 273, 294.) Such misconductcreates a “rebuttable presumption of prejudice.” (People v. Dykes (2009) 46 Cal.4th 731, 809.) This presumption may be rebutted “by a showingthat no prejudiceactually occurred”(see People v. Williams (1988) 44 Cal.3d 883, 1156), or “by [the trial] court’s examination of the entire record to determine whetherthere is a reasonable probability of actual harm to the complaining party” (Miranda, supra, 44 Cal.3d at p. 117). The strength of the prosecution’s case can be considered in determining if any juror misconduct was prejudicial. (People v. Cochran (1998) 62 Cal.App.4th 826, 831.) This standard is a pragmatic one which musttake into consideration the day-to-dayrealities of courtroom life (Rushen v. Spain (1983) 464 U.S. 114, 119), as well as the strong competing interest of society in the stability of verdicts in criminal trials (Jn re Carpenter (1995) 9 Cal.4th 634, 655). It is “virtually impossible to shield jurors from every contactor influence that 29 might theoretically affect their vote.” (Smith v. Phillips (1982) 455 U.S. 209, 215.) Furthermore,a jury is a “fundamentally human”institution. (People v. Marshall (1990) 50 Cal.3d 907, 950 (Marshail).) It is therefore unavoidable the jurors will bring diverse backgrounds, personalities, and experiences into the jury room. (Un re Hamilton, supra, 20 Cal.4th at p. 296.) Such diversity is both the strength and weaknessofthe jury system. (Marshall, supra, 50 Cal.4th at p. 950.) The criminal justice system must not be rendered impotentin quest of an ever-elusive perfection .... Jurors are imbued with humanfrailties as well as virtues. If the system is to function at all, we musttolerate a certain amount of imperfection short of actual bias. [Citation.] (In re Hamilton, supra, 20 Cal.4th at p. 296, omission in original.) This Court “first determine[s] whether there was any juror misconduct. Only if [it] answers that question affirmatively doesit consider whether the misconduct was prejudicial. [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 242, internal quotation marks omitted.) This Court “accept[s] the trial court’s credibility determinations and findings on questions ofhistorical fact if supported by substantial evidence. [Citation.]” (/bid.) This Court then determines whether those facts constitute misconduct, a legal question which is reviewed independently. ([bid.) The case of People v. Hamlin (2009) 170 Cal.App.4th 1412 (Hamlin) illustrates a reviewing court’s proper deference to the trial court’s (or referee’s) credibility determinations and findings of facts. In that case, the defendant movedfor a newtrial, alleging juror misconduct. He submitted a declaration from Juror No. 151. According to Juror No. 151, Juror No. 63 stated, during the first week oftrial, that he thought “a guilty verdict would be a slam dunk ... ano brainer.” (/d. at pp. 1461-1462.) The prosecutor, in response, provided declarations from two jurors who did not recall 30 hearing any statement about the defendant’s guilt or innocence before deliberations. The prosecutoralso noted that the alleged statement by the juror wasinconsistent with the jury’s verdict, since the jury had acquitted the defendant of several charges. (/d. at p. 1462.) At the hearing on the new trial motion, the court noted that there was no context given for the remarks. It was unknown,for example, whether Juror No. 151 was joking, was speculating out loud, or if he qualified his statement. The court continued, “It is just a dangling remark by Juror No. 63 that is inadequate to show misconduct.” The court also found that since the jury had returned seven not guilty verdicts and had found some of the great bodily injury allegations untrue, “it is pure speculation to conclude that these pre-deliberation remarks indicate he had a pre-existing bias that continued throughoutthetrial and prejudiced the case.” (Hamlin, supra, 170 Cal.App.4th at p. 1462.) The court further opined that Juror No. 63 had a biasor interest in seeing the new trial motion granted, and that her declaration raised “serious credibility problems.” (Hamlin, supra, 170 Cal.App.4th at p. 1462.) The court noted that in a supplemental declaration, Juror No. 63 claimed Juror No. 32 “said he made up his mind aboutguilt prior to the completion of trial” while Juror No. 32, in his own declaration, stated he listened to the evidence and discussed it with other jurors before reaching a decision. Additionally, while Juror No. 151 said she was pressured to vote guilty, she did not say anything when she affirmed her verdict in court. (/d. at pp. 1462-1463.) The court thus concluded there was neither misconduct nor prejudice, and denied the motion for a newtrial. (/d. at p. 1463.) On appeal, the defendant argued there was no substantial evidenceto support thetrial court’s conclusionthat Juror No. 63 lacked credibility. The Court of Appeal disagreed. The court stated,in part: 31 [A] trier of fact may accept such witnesses as he wishes and reject others . . . So long as thetrier of fact does notact arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even when the witnessis uncontradicted. [Citation.] Consequently, the testimony ofa witness which hasbeen rejected by the trier of fact cannot be credited on appeal unless, in view of the wholerecord,it is clear, positive and of such a nature that in cannot berationally disbelieved. [Citation.] (Hamlin, supra, 170 Cal.App.4th at pp. 1463-1464, internal quotation marks omitted.) In the case beforeit, the Court of Appeal continued, the trial court was entitled to conclude that there wasa conflict in the declarations and that Juror No. 151 should not be believed. (/d. at pp. 1464-1465.) Here, too, substantial evidence supports the referee’s findings that M.H.did not talk to her husband Stephen H. during deliberations, and did not tell P.R. that she had. M.H.testified that Bell’s case was a serious one and she took her duties as a juror seriously. (RT 9, 54.) She was aware, from the outsetofthetrial, that she was not to discuss the case with Mr. H., “and we didn’t discussit.” (RT 25-26.) When thetrial started, she told Mr. H., “I can’t talk aboutit.” (RT 29.) She added that Mr. H. had served on juries before and knew not to ask. (RT 29.) M.H. was emphatic, “My husband did not ask me questions ... And I did not tell him anything.” ’ (RT 31.) Shown paragraph 16 of P.R.’s declaration, M.H. denied ever saying she “broke down and spoketo [her] husband about he dilemma.” M.H. testified, “That’s not me.” (RT 52.) M.H. surmised that P.R. was confusing her with A.G., a juror who had broken down,talked to her husband aboutthe case, and was excused for that reason. (RT 51.) Although P.R. denied mixing the two up (RT 201), the referee reasonably concluded that given the striking similarity between paragraph 16 and the 32 circumstances surrounding A.G.’s dismissal, P.R.’s age, and the passage of time, P.R. might, in fact, have been so confused. (See Rep., p. 19.) Notably, while Susan Lake, the HCRC investigator, showed M.H. a photo of P.R. to see if it would refresh her recollection, Lake did not show a photograph of M.H.(or A.G.) to P.R. to clear up any possible confusion. (RT 390-391.) M.H. never wavered from her assertion that she and Mr. H.did not talk. On cross examination, shetestified that duringtrial, the court gave jurors an admonishmentnotto discuss the case with others while it was going on. (RT 54-55.) M.H. followedall of the court’s admonishments, including this one. (RT 55, 65.) She did not talk to another juror about the case outside of deliberations nor did she talk to Mr. H. (RT 68.) Based on whosheis as a person, the admonishment, and the personalities of both herself and Mr. H., “he wouldn’t have asked me and I wouldn’t havetold him.” (RT 65.) Furthermore, she would not haverelied on Mr. H. to decide the case because “we are both very independentthinkers, and sure, maybeyou share ideas and stuff, but you make your own decisions.” (RT 66.) M.H.’s willingness to make decisions for herself is apparent from other portionsof her testimony. For instance, during redirect examination, Bell’s counsel asked her, “Have you ever consulted with your husband when you are making important decisions in yourlife?” M.H. responded, “Well, a personal decision that affects him and me, yes.” (RT 72.) Counsel then asked, “So when you decidedto retire, did you have a conversation with your husband prior to making the decision to retire?” In response, M.H.told counsel, “Got back from a trip. There wasa letter saying there’s an early retirement, I said, ‘I’m out of here’ . . . I didn’t say, ‘Is that okay?’ I just said, ‘I’m out of here.’” (RT 72.) 33 M.H.’s recollection is also supported by the testimony of Mr. H. Mr. H.testified he had served on twojuries before M.H.wascalled to sit on Bell’s case and was “very much” aware that they could not discuss it. (RT 417-418.) He and M.H.did not talk about the facts of the case during deliberations. He wasnot interested and knew M.H. was not supposed to talk about it. Mr. H. volunteered, “I just don’t like to talk, and I don’t like to ask questions, and I don’t like to listen, either.” (RT 419.) He explained, “Ym just not interested in what she has to say... I don’t ask. I’m just not interested.” (RT 426.) Given Mr. H.’s demeanor and responses, it was reasonable for the referee to conclude that he would not have given M.H. advise on howto vote during the penalty phase of Bell’s trial. P.R.’s testimony, by contrast, was scattered and inconsistent. In 2009 she signed a declaration purporting to recount a detailed conversation she had with M.H.on the last day of the penalty phase deliberations. (RT 127, 137.) When P.R.wasfirst interviewed by Agent Wilde, she was not even sure M.H. was a juror on the case. (RT 234, 242.) A year later and at the evidentiary hearing, she testified M.H.said, in a stage-whisper, “My husband helped medecide.” (RT 103-104, 232-233, 237-238.) But P.R. acknowledged that she and M.H.werenotthat close — they never ate lunch together or got together for coffee during the breaks. (RT 226-227.) P.R. also claimed her memory of P.R. was better at the evidentiary hearing than it was a year earlier, when she spoke to Agent Wilde. (RT 231.) P.R. was also unsure about the circumstances surrounding the dismissal of A.G. When P.R.talked to Agent Wilde, P.R. said a juror (A.G.) was let go because she did not want to be on the jury. P.R. did not mention that the juror had committed misconduct. (RT 232.) She forgot that A.G. was dismissed for talking to her husband and also thought two jurors had been dismissed, one because she did not want to be onthe jury and one for talking to her husband. (RT 234-235.) P.R. acknowledged she 34 was “confused”as to whether two different jurors were dismissed. Asked later, “[D]o you know how manyjurors were removed from jury service?” P.R. responded, “I guess it was only one.” (RT 255.) At another point in her testimony, P.R. stated she could “not be sure” that anyone was excused from jury service. (RT 91.) A young woman whowasin the Navy did leave for unknownreasons,or for talking to someone aboutthe case,“[b]ut I may be getting it confused with this young woman mentioned in [paragraph] number 9 [ofmy 2014 declaration].” (RT 92.) Just a short while earlier, PR. had testified that someone was dismissed from the jury and wasreplaced by an alternate with the first name “Nancy.” (RT 84.) It is also telling that although Bell’s trial counsel, Peter Liss, conducted an in-depth interview of P.R. just two monthsafter the trial was over, P.R. never mentioned the purported remark by M.H. (RT 296-297.) At this point, P.R. already knew juror had been dismissedfortalking to her husband. (RT 196.) P.R. acknowledged that she had the opportunity to tell Liss about M.H. and should have done so. (RT 197-198, 222-223.) She gave varying explanationsfor her failure to mention the incident to him. Shefirst testified, “I don’t think I discussed it with him. I] wouldn’t have unless he asked me.” (RT 197.) She thensaid,“It didn’t register as that important.” (RT 199, 201.) Asked later, she asserted that she kept the matter to herself because she “didn’t feel that he was a confidant of mine that I was going to share — if I was going to bring that up, it would not have been him and overthe telephone.” (RT 260-261.) But asked if she had that feeling when shetalked to Liss, she testified, “Well, I don’t remember. . . I probably wasn’t thinking aboutthat particular thing.” (RT 261.) P.R. did not explain why she would notrelay the information to attorney Liss, who she had seen throughoutthetrial, but would convey it to Lake, who she had never met before. 35 = Finally, P.R. did not recall being interviewed by defense investigator Tom Crompton on June 27, 2005, even though “it seems like something I would remember.” (RT 177-178.) And there is nothing in the record to indicate that P.R. told Crompton aboutheralleged conversation with M.H. To the contrary, P.R. admitted that she did not mentionit to anyone until her meeting in 2009 with Lake. (RT 198.) In short, the referee properly concluded that there wasinsufficient credible evidence to support Bell’s allegations that M.H.: (1) talked to her husband about Bell’s case while the trial was ongoing; and/or (2) told P.R. she had talked to her husband about this case. This Court should conclude that there was no juror misconduct, and should deny habeasrelief. 36 Vv. CONCLUSION Based on the foregoing, respondent respectfully requests that this court find there was no juror misconduct, deny habeasrelief to Bell, and discharge the Order to Show Cause. Dated: May 12, 2016 Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General MICHAEL T. MURPHY Deputy mitorney General . io ji fc ube G/MCGINNIS Deputy Attorney General Attorneysfor Respondent $D2007700368 71188640.doc 37 CERTIFICATE OF COMPLIANCE I certify that the attachedEXCEPTIONS TO REFEREE’S FINDINGS OF FACT AND BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 12,001 words. Dated: May 12, 2016 KAMALA D. HARRIS Attorney General of California Deputy Attorney General Attorneysfor Respondent ‘4 _M. 1, Sulvador-Jett_ las DECLARATION OF SERVICE BY MATL & ELECTRONIC SERVICE Case Name: Inre Steven M. Bell on Habeas Corpus No: S154362 i declare: Tam employed in the Office of the Attorney General, which is the office af a member of the fornia State Bar, at which member's directionthis serviceis made. Tam18 years of age or older and not a partyto this matter. f am familiar with the business practice at the Office of the AttorneyGeneral for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practic placed in the internat tion systemat the Office ofthe Attorney General is deposited with the United States that sameday in the ordinary cours ess. The Office of the Atorney General's eService address is AGSD.DAS: ‘On May26, 2016, I served the attached EXCEPTIONS TO REFEREF’S FINDINGS OF FACT ANDBRIEF ON THE MERITSby placing true copy thereof enclosed in a sealed envelope with postage thereonfully prepaid, in the internal mail collection system at the Office ofthe Attorney General at 600 West Broadway, Suite 1800, 7.0, Box 88266, San 92186-4266, addressed as follows: MichaelJ. 1-lersek url of Appeal of the ‘orpus Resource Center ‘ourth Appellate 1 treet, Suite 490 South 750 B Suect, Suite 300 co, CA 94107 San Diego, CA 92101 ‘or Steven M, Beil [2copies} California Supreme Court San Diego County Superior Court Automatic Appeals Monitor Fordelivery to: 350 McAllister Street The Honorable Joan P. Weber. Jusige SanFrancisco, CA 94102 220 W.Broadway San Diego, CA 92101 California Appellate Project 101 Second Sirect, Suite 600 San Francisco, CA 94105 and, furthermore | declare, in compliance with Catifomia Rules of Court, rules 2.251¢)(1(A)- (D) and 8.71 ((LKA)-<(D),I cheetronically served a copyof the above dacument on May 26, 40 p.m., on the close ofbusiness fo the following, fiega.com ‘Appellate Defenders, 1 declare under penal and correct undthat f perjuryunderthe laws of the State of Californiathe fore; is declaration was executed on May 26, 2616, al San Diego, Declarant