PEOPLE v. LAVENDER

Respondent’s Petition for Review

Cal.April 15, 2013

In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, .| ©8¢ No Vv. SUPREME COUR? FLOYD LAVENDER,etal., = i i c ry Defendant and Appellant. APR 15 2013 Appellate District Division One, Case No. D057686 Frank 4. Wetayire Cheri San Diego County Superior Court, Case No. JCF21567_ a Honorable Donal B. Donnelly, Judge Deputy PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General ERIC A. SWENSON Deputy Attorney General State Bar No. 190813 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2216 Fax: (619) 645-2191 Email: Eric.Swenson@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented ........eieeeesesccsssssseenecssecssessesstessesseecsseecseeccsusseueesssaueseueneuserees I Reasons for ReView .......ccscccsssssssssssseessesessessesscesessecerecsescesssssssucsscsesenseassaseas 1 Factual and Procedural Background...........csccsssssesseesesscssesesessesseseeesseseees 3 ALBUMEN ooo. ee le ecceseecneeeeecesetseeseensecesessssseucassseseatcssaessaeesseseneesaessaeeaesentssass 4 I. Where a reviewing court is presented with contradictory declarations in support of and opposition to a claim of prejudicial juror misconduct, it should remandthe matter for an evidentiary hearing, so that the trier of fact may resolve the evidentiary conflicts by taking testimony, assessing the credibility of the witnesses, and making the crucialfindings of fact in the first INStance oi ceeecccessssecsecteesecensssseeceeeseeseessecseessneneesess 4 COMClUSION. ...... ccc ccsesssscssssssscccccececouseseceecccsuvenssnnauasuseesececcecccesucssueseceescesens 12 TABLE OF AUTHORITIES Page CASES Aguilar v. Lerner (2004) 32 Cal4th 974 vicccssssessesesscsesseseesssreeeessnessenssesnensteenenenteaseeenenties 6 In re Carpenter . (1995) 9 Cal.4th 634 oceeccsssessesscnenssessssensseseesesenesieresienenseteeeesecsesenees 8 In re Hamilton | (1999) 20 Cal4th 273 oo. cccccsscsscsesessesseseeeeneersensesenertscesneeesseeescserenenneney 8 In re Stankewitz (1985) 40 Cal.3d 391] ooccssssesssserscsenenecsessesssseeseeererertesssireessnesecerees 10 People v. Bennett (2009) 45 Cal4th 577 vo...eeeesveseeaseaecaeeaecnecaceeeesseaesenesasesesaessesensensd 10 People v. Bryant | (2011) 191 Cal.App.4th 1457 cccccceeeseseseneesesenenereeeeieneeeeiey 1,2, 4,7 People v. Carter (2005) 36 Cal.4th 1114eeccssereneseeeteneeeeseseaseeneeesesneneesesesesssesieneees 10 People v. Clark (2011) 52 Cal4th 856 oo. ccsecsecsereeeeerensseeenseresenseseeneeesnsraneneteesnensies 10 People v. Danks (2004) 32 Cal4th 269 occecsccssesssecseesseneeeenenseeceseeeeeeseeieneessienenesenens 10 People v. Hardy (1992) 2 Cal4th 86 icccecsssesesecsesseesessesteseesessssseneeeseenerereeieneneeaseensnaes 10 People v. Hedgecock (1990) 51 Cal.3d 395cccrscsesseneeeesetseserssenessetscesserereresenens 1, 6, 8,9 People v. Honeycutt (1977) 20 Cal.3d 150 woe csceecssssseerseseseneceesecssestesssenesecseerecacenienesseseenanenes 10 People v. Hord ceeneeneenetee’ 10(1993) 15 Cal.App-4th 711 vecccccssssscssssssssnssesecccsssssnnneeeseeeessnenees il People v. Leonard (2007) 40 Cal4th 1370cccccceseccesseesesesceecsessssecsescesssessesevesesseseeeseees 7, 10 People v. Lewis (2001) 26 Cal4th 334 oocceccsessessecsecsceseseesstssesseesssssssesssessessseceatesess 10 People v. Loker (2008) 44 Cal.4th 691 ooeeecececsssssessecsseetseseecesssssseesessesesseessessesentens 7,10 People v. Majors (1998) 18 Cal4th 385 ooesceccsecsessesecsecsecsseseseeesseeseessseesessesseeseesseesees 10 People v. Nesler (1997) 16 Cal.4th 56] ooeesecseceecsseeenecseecseeseeeessessessessessaecaseseessseeses 10 People v. Perez (1992) 4 Cal.App.4th 893 ooececeecetseseneescsneseeseeeessenseseeeesereneespassim People v. Von Villas (1992) 11 CalApp.4th 175 ooo ccccccseesecerseeeesneeseessesessssersreeeeaes 1, 2, 4, 6 Remmerv. United States (1954) 347 U.S. 227 [74 S.Ct. 450, 98 L.Ed. 654] oo. ccceeeeeessecseeeeens 9 Smith vy. Phillips (1982) 455 U.S. 209 [102 S.Ct. 940, 71 L.Ed.2d 78] oo. ceecceeeeeseessseeees 8 CouRT RULES California Rules of Court rule 8.500... cccccccessccsscesseceeesscsscesessesesesenneeseaeees 1 lil TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Respondent, the People of the State of California, respectfully petitions this Court to grant review in the above-entitled case pursuant to rule 8.500 ofthe California Rules of Court. A copy of the unpublished opinion of the Court of Appeal, Fourth Appellate District, Division One, filed March 6, 2013, is appendedhereto. ISSUE PRESENTED Where a reviewing court is presented with conflicting affidavits that create material, disputed issues of fact regarding the nature and extent of jury misconduct, should it remand the matter tothetrial court for a limited hearing [People v. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock)], so that the record may be fully developed before it determines whether the presumption ofprejudice has been rebutted? REASONS FOR REVIEW This is Respondent’s secondPetition for Review in this case. On October 24, 2012, this Court unanimously granted Respondent’s previous Petition for Review, and transferred the matter to the Court ofAppeal with directions to vacateits decision and reconsiderthe causein light ofPeople v. Bryant (2011) 191 Cal.App.4th 1457, 1462-1471 (Bryant); People v. Von Villas (1992) 11 Cal.App.4th 175, 251-261 (Von Villas); and People v. Perez (1992) 4 Cal.App.4th 893, 905-909 (Perez). All three opinions concluded a remandfor an evidentiary hearing was the appropriate remedy. On March6, 2013, the Court of Appeal issued its modified opinion and concluded, “We have examined Perez,as well as its progeny Bryant and Von Villas, and conclude those casesare both distinguishable and involve questionable legal reasoning that should not be perpetuated, and therefore our original disposition should remain unchanged.” (Opn.at 4.) The Court of Appeal added, “After reconsideration, we remain convinced the misconduct by this jury in discussing the adverse inference to be drawn from defendants’ failure to testify was presumptively prejudicial and, because the evidentiary basis for the guilty verdict appeared diaphanous and was in many respects in disarray, the record in this case is inadequate to rebut that presumption.” (Opn.at 4.) The Court of Appeal’s modified opinion failed to squarely address an issue that is central to the resolution of this case: What exactly did the parties’ affidavits prove, given their contradictory nature? Instead,it begged that question by concluding the defense affidavits established that the jurors committed prejudicial misconduct. In doing so, the Court of Appealacted as thetrier of fact, chose to credit the account of the misconduct that was contained in the defense affidavits, and then madeits determination that appellants suffered actual harm without giving the court below the opportunity to receive additional evidence and testimony, assess the credibility of the declarants, and makethe crucial findings of fact in the first instance. This Court should grant review in order to settle an important question of law: under what circumstances is a remand for an evidentiary hearing, as opposedto an outright reversal, warranted in the context ofjury bias claims - that present conflicting affidavits? To the extent that Perez, Von Villas and Bryantare flawed, or that they conflict with another line of cases, those circumstances onlyserve to highlight the need for review in this case, so that this Court may provide guidance to intermediate appellate courts through the exercise of its supervisory authority. FACTUAL AND PROCEDURAL BACKGROUND The facts and the procedural background wereset forth in detail in Respondent’s priorPetition for Review. Theyare briefly summarized and updated below. Appellants terrorized Kristen Martin, Mike Hughes, Thayne Tolces, and the victim, 14-year-old Courtney Bowser, for nine hours, using a hammer,nails, a chisel, and hair clippers in the process. They also took or carried a handcuffed Courtney from the scene and later drowned her in an irrigation canal. | After their convictions for murder, kidnapping, and torture, appellants filed a motion for a newtrial, based in part on allegations ofjuror misconduct. In support of their motion, appellants attached affidavits from three jurors and a defense investigator, which alleged that several jurors had discussed at length the fact that appellants had failed to testify, and had concluded they were guilty for that reason. In opposition to the motion, the prosecution providedaffidavits from four jurors, including two ofthe same jurors whohadalso provided affidavits to the defense. Those affidavits declared that only one juror had briefly mentioned appellants’ failure to testify, and that he was quickly admonishedbyseveral other jurors, including the foreperson, that he was not to considerthat fact. Thetrial court denied appellants’ motion, and sentenced them both to a termoflife with the possibility of parole, consecutiveto an additional indeterminate term of 30 yearsto life. Appellants appealed the judgment. Division Oneof the Fourth District Court ofAppeal (the Court ofAppeal) reversed and remanded the matter for a newtrial, finding that the prosecution’s affidavits had failed to rebut the presumption of prejudice arising from the misconductalleged in the affidavits presented by the defense. On August 21, 2012, Respondentfiled its first Petition for Review. On October 24, 2012, this Court unanimously granted Respondent’s Petition for Review,and transferred the matter to the Court of Appeal with directions to vacate its decision and reconsider the causein light of Bryant, Von Villas and Perez. The Court ofAppeal filed its modified opinion on March6, 2013, and after analyzing those cases,it again concluded that a new trial, and not a remandfor an evidentiary hearing, was warranted. ARGUMENT I. WHERE A REVIEWING COURTIS PRESENTED WITH CONTRADICTORY DECLARATIONSIN SUPPORT OF AND OPPOSITION TO A CLAIM OF PREJUDICIAL JUROR MISCONDUCT, IT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING, SO THAT THE TRIER OF FACT MAY RESOLVE THE EVIDENTIARY CONFLICTS BY TAKING TESTIMONY, ASSESSING THE CREDIBILITY OF THE WITNESSES, AND MAKING THE CRUCIAL FINDINGS OF FACT IN THE FIRST INSTANCE The Court of Appeal’s opinion distinguished Perez, Von Villas, and Bryanteither by criticizing their evidentiary rulings or by asserting that the facts of the instant case are different, since in its view the defense metits burden by submitting affidavits that established the jury had committed prejudicial misconduct. (Opn.at 20-21, fn. 22, 39-48.) In the courseofits analysis the Court of Appeal also rejected its own precedent in Perez, and did so in an unpublished disposition, thereby preventing other appellate courts from relying on its reasoning or citingits opinion as authority. Finally, the Court of Appeal’s opinion sidestepped the broader proposition advancedbythose three cases — that there are instances where motions for a new trial based on jury misconduct cannot be resolved without holding an evidentiary hearing, especially under circumstances where the record requires further development, credibility determinations must be made, and material factual conflicts must be resolved. Such is the case here. The Court of Appeal first addressed Perez, and found that the remedy of a remandfor an evidentiary hearing in that case was unsupported by applicable legal precedent: “Indeed, absent somepertinent law that makes newtrial motions based on jury misconductdifferent from other matters thattrial courts must decide, we are unable to understand whya trial court would be precluded from ruling on a new trial motion based on jury misconduct established by presumedorstipulated facts, considering the numerous other proceedings in which such a procedure seems permissible.” (Opn. at 41 [emphasisin original].) The Court of Appealalso foundthe remedy afforded the parties by its opinion in Perez was dictated by a key factual difference: “In Perez, the court ordered the new trial motion restarted anew becauseit doubted the court could assumethe evidentiary predicate without proper declarations from jurors, and remanded to place the burden back on the defendant, which the court’s error had relieved the defense of; here, in-contrast, the defense has already metits burden because it did file declarations from jurors establishing the evidentiary predicate to the motion.” (Opn.at 41 [emphasis in original].) The Court of Appeal also rejected the remedy of a remand, whichit had previously madeavailable to the defendant in Perez, based on its belief that the holding of that case should not “be extended to require the defense to reinvent the wheel, particularly considering the lengthy passage of time that has elapsed sincethe original, properly supported motion wasfiled.” (Opn. at 41-42.) In a lengthy footnote, the Court of Appeal explained the reasonsforits view that the time which had elapsed since the trial court had madeits original ruling militated in favor of ordering a newtrial as opposed to a remand: [T]he fact that years have passed could well harm defendants by eroding the reliability of any evidence (whether from the fading memoriesas to the precise dynamics of the deliberations, or the coloring of memories from posttrial publicity, or simply the inability to reassemble the entire jury to conductthe inquiry) that might be gleaned from ordering a Hedgecock hearing, as now proposedbythe People. (Opn.at 43, fn. 32.)! Since Von Villas relied on Perez, the Court of Appeal held those two cases shared the sameinfirmities. (Opn. at 43-44.) The Court of Appeal took issue with the remedy offered by the majority in Von Villas; namely, remanding the matter for a hearing so that live testimony could be taken from the jurors in instances where they had already provided evidence of misconductin the declarations they had submitted. In that context, the Court of Appeal quoted the concurring and dissenting justice in Von Villas, who opined, “‘Conceding that Von Villas proved oncethat his trial was unfair, the majority opinion now — three years later — requires him to prove it again.” (Opn. at 45 [emphasis in the original].) The Court ofAppeal noted, “We agree with Justice Woods that mandating a hearing at which live testimony from jurors is solicited wheneverany potential evidentiary ' In the same footnote, the Court ofAppealnoted, “The defendants also argue the remedy now urged by the People — to order a Hedgecock hearing and thentorevisit the new trial motion after the hearing — should be foreclosed underprinciples ofjudicial estoppel, because the prosecution below successfully opposed the defense request for a Hedgecock hearing, and the People’s brief in the original appeal argued the Hedgecock hearing was properly denied by the trial court below.” (Opn. at 42-43, fn. 32 [emphasis in original]; see also Opn.at 3-4, fn. 3, 39.) The Court of Appeal found it was “unnecessary definitively to apply judicial estoppel here,” - notwithstanding its conclusion that “the elements appear facially present in this case[.]” However, in light of the fact that the Court ofAppeal’s opinion found admissible several portions of the defense affidavits that the trial court had originally excluded from evidence,it is not inconsistent in the slightest, let alone “totally inconsistent,” for Respondentto argue atthis stage that appellants have established their entitlement to an evidentiary hearing and that a conditional reversal was the remedy that the Court of Appeal should have provided them. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 987.) conflicts exist, and barring the use of other evidentiary submissions to resolve motions for new trials premised on jury misconduct, is contrary to established precedent.” (Opn.at 45.) Finally, the Court of Appeal noted the court in Bryant had observed that “[t]he issues of misconductasserted in this case are serious and if proven by sworn evidence,giverise to a presumption ofprejudice,”but decided that “[b]ecause the partieswaived any objection to the unsworn statements at the suggestion ofthetrial court, the appropriate remedy is to return the matterto thetrial court for a full and complete hearing with _ competent evidence.” The Court ofAppeal distinguished the instant case by finding that “As in Bryant, the issues of misconduct asserted below were serious, but here (unlike Bryant) the misconduct was “proven by sworn evidence, giv[ing] rise to a presumption ofprejudice.” (Opn. at 48 {emphasis in original].) _ In this case, those portionsofthe defense affidavits which the Court ofAppeal deemed admissible indicated that appellants’ failure to testify wasdiscussed at length by several jurors, their decisions not to take the stand played a largepart in the jurors’ verdicts, and the jurors concluded they were guilty for that reason. By contrast, the prosecution’s affidavits indicatedthat only one jurorbriefly mentioned that appellants did not testify, and several otherjurors, including the foreperson, immediately | admonished him that he was not to considerthat fact during his deliberations. Thoughit is misconductfor a juror to commenton a defendant’s failure to testify (People v. Leonard (2007) 40 Cal.4th 1370, 1425; People v. Loker (2008) 44 Cal.4th 691, 749),it is not prejudicial if the jury has declined to draw any adverse inferences from that fact. (Leonard, supra, 40 Cal.4th at pp. 1424-1425; Loker, supra, 44 Cal.4"at p. 749.) This is exactly the scenario which the prosecution’s declarations described. Though the defense declarations presented a different account ofwhat happenedin the jury room, they merely placed the nature of the misconduct that occurred here in dispute. (See In re Carpenter (1995) 9 Cal.4th 634, 657) [“Although prejudice is presumed once misconduct has been established, the initial burden is on defendant to prove the misconduct. We will not presume greater misconduct than the evidence shows”] (citation omitted); see also Jn re Hamilton (1999) 20 Cal.4th 273, 295 [“To holdthat the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more,is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court”].) In Hedgecock, this Court discussed the many reasons whyit was desirable for a trial court to have the discretion to hold an evidentiary hearing: There are substantial advantages to a rule recognizing the trial court’s discretion to order an evidentiary hearing at which jurors maytestify. Most important, when comparedto the use of affidavits, a hearing at which witnessestestify and are subject to cross-examination is a more reliable means of determining whether misconduct occurred.” (Hedgecock, supra, 51 Cal.3d at p. 417.) This Court also observed, “ ‘A hearing permits counselto probe the juror’s memory, his reasons for acting as he did, and his understanding of the consequencesofhis actions. A hearing also permits the trial judge to observe the juror’s demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case.” ” (Ibid (quoting Smith v. Phillips (1982) 455 US. 209, 222 [102 S.Ct. 940, 948, 71 L.Ed.2d 78].) Finally, this Court rebuffed the defendant’s complaints that holding an evidentiary hearing years afterward would prejudice him: Wereject defendant’s contention, madeat oral argument, that becauseofthe difficulty in relocating the jurors for a possible evidentiary hearing several years after the completion of the trial, we should directthe trial court to grant his motion for new trial. At this point, the claim that the parties may be unable to locate the jurorsis entirely speculative and premature, In any event, defendanthas presented no persuasive authority that he would be entitled to suchrelief. (Hedgecock, supra, 51 Cal.3d at p. 421, fn. 11.) This Court concluded that a remand was counseled underthe circumstances before it becausethetrial court had not exercisedits discretion to determine “whether an evidentiary hearing [was] necessary to resolve the allegations ofjuror misconduct, and whether Jurors may be subpoenaedto testify at [the] hearing.” (Hedgecock, supra, 51 Cal.3d atp. 420.) This Court therefore did not have occasion to determine whetherit would be an abuseofdiscretion to deny the defendant such a hearing (/d. at p. 421), and thus left unaddressed the question of whetherthetrial court could makeits determination based solely on the declarations that were already beforeit. In the face of the disputed, material issues of fact in this case concerning the nature and extent of the misconduct that occurred, the Court ofAppeal should have remanded the matter for a limited evidentiary hearing beforeit determined whether the presumption ofprejudice had been rebutted, especially in light of the fact that two of the declarationsthe defense submitted in support of its motion were from the sameJurors who provided clarifyingdeclarationsin support of the prosecution’s opposition to the motion. (Remmer v. United States (1954) 347 U.S. 227, 229 [74 S.Ct. 450, 98 L.Ed. 654] (“We do not know fromthis record, nor does the petitioner know, whatactually transpired, or whetherthe incidentsthat may have occurred were harmful or harmless”).) This propositionis underscored by the manycases in which a hearing washeld, and the jurors who allegedly committed misconduct were questioned, before that analysis was undertaken. (See, e.g. People v. Clark (2011) 52 Cal.4th 856, 971 (“We have long recognized that, except when bias is apparent from the record,the trial judge is in the best position to assess the juror’s state of mind during questioning”); People v. Bennett (2009) 45 Cal.4th 577, 625- 626; People v. Carter (2005) 36 Cal.4th 1114, 1205-1206; People v. Nesler (1997) 16 Cal.4th 561, 570-574, 583 (“We look to the entire record to resolve this issue, keeping in mindthatthetrial court has found the relevant _ historical facts and resolved the conflicting evidence, but that the question of prejudice is for our independent determination”); People v. Majors (1998) 18 Cal.4th 385, 417-430; People v. Honeycutt (1977) 20 Cal.3d 150, 154-158.) Thoughin other cases this Court has reached the question ofprejudice without the benefit of a hearing, they involved circumstances where the declarations did not create any material, disputed issues of fact regarding the nature of the alleged misconduct. (See Jn re Stankewitz (1985) 40 Cal.3d 391; see also People v. Hardy (1992) 2 Cal.4th 86, 174 (“Because no material factual dispute was presentedto the trial court it did not abuse its discretion in declining to hold a hearing to question [Juror] Lipman”); Leonard, supra, 40 Cal.4th at p. 1424; Loker, supra, 44 Cal.4th at p. 746 (“The parties agreed that there was no needtotake live testimony from the jurors, and that the court could decide the motion based on the declarations”); People v. Danks (2004) 32 Cal.4th 269, 304-313; People v. Lewis (2001) 26 Cal.4th 334, 387-391; People v. Hord (1993) 15 Cal.App.4th 711, 723 (“As stated by the trial court, there was no material conflict that the statements were made. Thetrial court accepted as true that the two improper topics were mentioned during deliberations and that some of the jurors heard the statements. Thetrial court also found the foreperson admonishedthe jury not to consider these matters.”’) 10 Viewedin their totality, the affidavits in this case are consistent in only one regard — that a single juror mentionedthe fact that appellants had nottestified.” (4 GCT 899, 901, 903.) The declarations in this case otherwise presented several material, disputed issues of fact: whether more than one juror mentioned appellants’ failure to testify, and if so, how many Jurors discussedit; how long the discussions lasted and how extensively the topic was discussed; whether the foreman admonishedthat juror or those jurors and how quickly he did so; and whetherthejuror or jurors agreed they would follow the court’s instructions. Most important, the declarations created an additional material, disputed issue of fact, and the crucial one in this case — whetherthe juror or jurorswho mentioned appellants’ failure to testify drew the prohibited inferenceatall, by expressly linking appellants’ silence to the question oftheir guilt or innocence. | Review of this case will permit this Court to provide guidance to intermediate appellate courts regarding the circumstances under which a remandfor an evidentiary hearing, as opposedto an outrightreversal,is warrantedin the context ofjury bias claims that present conflicting affidavits. What is more, given that appellants were convicted of torture, kidnapping, and murder,the instant case providesan apt vehicle for clarifying this important issue. * In his affidavit Juror No.5 declared, “T do not recall any mention by any juror regarding the fact that the defendants did nottestify.” (4 GCT 905.) 1] CONCLUSION For the foregoing reasons, Petition for Review be granted. Dated: April 12, 2013 Respondentrespectfully requests that this Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER.GILLETTE ChiefAssistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General Cuic A. Partnoen Eric A. SWENSON ’ Deputy Attorney General $D2010702150 80755871 .doc Attorneysfor Plaintiffand Respondent 12 CERTIFICATE OF COMPLIANCE I certifythat the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 3,436 words. Dated: April 12, 2013 KAMALAD. HARRIS Attorney General of California dn MN. Ssurthom ERIC A. SWENSON Deputy Attorney General Attorneysfor Plaintiffand Respondent ATTACHMENT Y OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT NOT TO BE PUBLISHED IN OFFICIAL REPORTS alifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for | Cc {ublication or ordered published, except as specified by rule 8.1116(b). This opinion has not rtified fOr ordered published for purposes of role S4418. ¥ tb) P been certified for publication COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D057655 D057686 Plaintiff and Respondent, ve . . (Super. Ct. Nos. JCF21566, FLOYD LAVENDERetal., JCF21567) Defendants and Appellants. APPEAL from a judgmentofthe Superior Court of Imperial County, Donal B. Donnelly, Judge. Reversed. A jury convicted defendants Floyd Lavender and Michael Gaines of the kidnapping (Pen. Code,! § 207, subd. (a)) and first degree murder (§ 187, subd.(a)) of Courtney Bowser, and the torture (§ 206) of Bowser and two other victims (Kristen 1 All further statutory references are to the Penal Code unless otherwise specified. Martin and Michael Hughes) during the same alleged crime spree, The court sentenced each defendant to an indeterminate term of25 years to life on the murder charge and a consecutive five-year determinate term for the kidnapping conviction. The court also sentenced each defendantto three life terms on the torture counts to run concurrently with each other but consecutive to the term for the murder conviction. On appeal, defendants argue the evidence was insufficient to support the act-- | \ convictions, and:there wereothererrors, including the claim the jjury engaged in watLae my wer prejudicial:jnisconduct because the jurors discussed during deliberations the adverse inferencetoediotfact the defendants did nottestify on be own behalf, and it was itefors’bierteto deny their new trial motion based on jurormisconduct. They also assert (1) the pretrial identification procedures were unduly suggestive and therefore tainted the in-court identifications; (2) the court erroneously instucted the jury under CALCRIM No. 315 that a witness's level of confidencein his or her identification is a factor to be weighed when assessing the accuracy ofthat identification; (3) the court erroneously admitted expert testimonythat relied on hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36 and Melendez-Diaz v. Massachusetts (2009) 557 US. 305; (4) the prosecutor engaged in acts of misconduct during closing argument, including adverting to defendants’ failure to testify; and (5) because of the veakness of the evidence, these errors and misconduct warranta finding there was cumulative error rendering defendants'trial fundamentally unfair: | In our original opinion,filed July 10, 2012, we concluded that, although there was sufficient evidence from which a jury could have found defendants guilty, the 2 _ misconduct bythisjury in discussing the adverse inference to be drawn from defendants’ failure to testify was presumptively prejudicial, and the record in this case was inadequate to rebut that presumption. Accordingly, we reversed the judgment and remandedthe matterfor a newtrial.2 However,after the People unsuccessfully petitioned this court for a rehearing, based onthe argumentthat our disposition was incorrect andthe correct disposition should instead be to remandto thetrial court with directions to conduct anew _ evidentiary hearing under Peoplev. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock) and to then revisit the new trial motion based on this new evidentiary record as authorized by People v, Perez (1992) 4 Cal.App.4th 893, 905-909 (Perez),3 the People petitioned for 2 Because wereversed based on juror misconduct, we did not address the balance of defendants’ claims of error except their claim ofinsufficient evidence, because that claim, if successful, wouldbar retrial under double jeopardyprinciples. (See,e.g., People y. Seel (2004) 34 Cal.4th 535, 350.) 3 This argument--that we should order remandtothetrial court with directions toconducta new evidentiary hearing under Hedgecock and then conduct a de novo hearing on the new trial motion under Perez--was nowhere mentioned in the People's brief on appeal, whichis ordinarily fatal to a petition for rehearing. (Smith v. Crocker First Nat. Bank ofSan Francisco (1957) 152 Cal.App:2d 832, 837 ["Counsel are-not permitted to argue their cases in a piecemeal fashion and points not previously argued will not be considered where raised for the first time on petition for rehearing."]; 4. F. Estabrook Co. v. Industrial Ace. Com. (1918) 177 Cal. 767, 771 ["Nosuch point was suggestedin the argument on which the petitioners submitted the cases for decision. It.is the settled rule of this court that points madeforthe first time on petition for rehearing will not be - considered."]; Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 276 [ordinarily [i]t is much too late to raise an issue for thefirst time in a petition for rehearing"].) This ordinary rule of preclusion was particularly applicable to the People's petition for rehearing, because the Hedgecock hearing the People newly championedin their petition for rehearing, as well as in their petition for review to the Supreme Court,- was the precise hearing the People's appellate brief in the original appeal had argued was properly denied bythetrial court below because (accordingto that brief) once "the court determined that appellants’ jurors had discussedtheir decision to forgo testifying, there 3 | | | review to our Supreme Court. Byits order of October 24, 2012, the Supreme Court granted the People's petition, and directed that we vacate our decision and "reconsider the causein light-of People v. Bryant (2011) 191 Cal.App.4th 1457, 1462-1471 [(Bryant)], People v. Von Villas (1992) 11 Cal.App.4th 175,.251-261 [(Von Villas), and [Perez, supra, 4 Cal.App.4th 893, 905-909]." We have examined Perez.las well as its progeny Bryant and Von Villas, and conclude those cases are both distinguishable and involve questionable legal reasoning that should not be perpetuated, and therefore our original disposition should remain unchanged. | After reconsideration, we remain convinced the misconduct by this jury in discussing the adverse inference to be drawn from defendants’ failure to testify was presumptively prejudicial and, because the evidentiary basis for the guilty verdict appeared diaphanousand was in many respects in disarray, the record ‘in this case is = inadequateto rebut that presumption. We reverse the judgment and remandthe matter for a newtrial. was noother'factual' issue to resolve," and "[s]ince the court had already found that misconduct occurred, an evidentiary hearing under Hedgecock was unwarranted." (Respondents Brief, pp. 20, 19.) Thus, overtones ofjudicial estoppel (see fn. 32, post) further militated in favor of precluding the issue from being raised on a petition for rehearing. While this rule of preclusion ordinarily carries forward in a petition for review (Cal. Rules of Court, rule 8.500(c)(1); Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 379: Gavaldon }. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1265), the Supreme Court has discretion to reachissues otherwise forfeited (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 901, fn. 5 {"In a numberofcases, this court has decided issues raised for the first time before us, . where those issues were pure questionsof law, not turning upon disputed facts, and were pertinent to a proper disposition ofthe cause or involved matters-‘of particular public importance."]), and has directed this court to do so here. 4 I FACTUAL BACKGROUND In late August 2003, Bowser's lifeless body was foundin anirrigation canal in Imperial County, California, although it remained unidentified for two. and one-half years. The prosecution's theory ofhow she died, and the identities of the persons responsible for placing her body into the canal, was diametrically opposed to the defense theory of events. The prosecution, relying largely on the testimony of a group of methamphetamineusers (including Martin and Hughes) with Bowser when she waslast seenalive, alleged defendants became enraged when oneofthe methamphetamineusers stole valuable checks belonging to defendants, andthat they tortured Bowser, Martin and Hughes(and ultimately murdered Bowser) in an effort to recover the checks. In contrast, the defense argued Bowser had engaged ina multiplé-day methamphetamine party with the prosecution's principal percipient witnesses, and died from a drug overdose, and these witnesses then panicked and disposed ofher body. The defense argued the numerousdiscrepancies (both internally and when comparedto other evidence) in the versions given by prosecution witnesses showedthat the methamphetamineparty participants, who for many years remained silent aboutBowserS disappearance, waited until her body wasidentified to concoct a story designedto | scapegoat the two African-American defendants for Bowser's death. | A. Prosecution Version ; The Methamphetamine Party . , ! |While residing at Juvenile Hall, Martin met Hughes and they becamefriends. t |Martin also met Thayne Tolces at Juvenile Hall. Tolces and Hughes were longtime friends. Hughes was released from Juvenile Hall on August2, 2003, Tolces was released from Juvenile Hall three days later, and Martin wasreleased from Juvenile Hall on August 14, 2003. Martin visited Hughes and Tolces (either the day Martin wasreleased from. Juvenile Hall or the following day) at an apartmentin Palm Desert, California, where Hughes and Tolces were living. They decidedto visit Angela Vereen at her apartment. Whenthey arrived at Vereen's apartment, Bowser was already there. Vereen supplied the group with methamphetamine. Hughesbelieved they spentthe better part of the next |four days4 playing video games and consuming methamphetamine. The Theft and Defendants' Involvement At some point, Vereen noticed that some "blank" Americah Expresstraveler's checks, which she hadleft on her desk, were missing.» Gaines had entrusted these blank 4 In contrast to Hughes, Tolces and Martin believed they spent only one eveningatVereen's apartment, while Vereen believed it wasa dayor two but she could notremember. , 5 Martin testified the checks were extremely valuable, because Vereen at some pointtold her the checks were worth $250,000, even though (according|to Vereen) the checkswere blank. The genesis ofthese blank checks is unclear, because the prosecutionproduced no evidence of any reported thefts of blank traveler's checks. On cross-examination, Vereen (whotestified on direct examination that she had only met Gaines 6 checks to Vereen a few days earlier.6 Vereen immediately called Gaines to report the suspected theft. Defendants were angry because a "high-powered" person from Los Angeles was coming to get the checks, and if the checks could not be produced, they would be "capped." Vereen suspected oneofthe meth users might have taken the checks.7 Vereen then called Hughesat his apartmentand told Hughesthat he, Tolces and Martin needed to return to her apartment right away.8 As Hughes and Tolces were climbingthestairs towards Vereen's apartment, Vereen wasyelling at them, saying, "You guys fucked up.... Where are the checks at?" and "[Gaines is] comingover[here right] now so you guys messed up." Hughes got "a few times"and "all those meetings [were] pretty much drug transactions"), could notarticulate any reason why Gaines would have entrusted her with stolen travelers checksfor safekeeping. 6 Vereen wasinterviewed bypolice on multiple occasions. In one interview, shetold police she had been holding the checks for about 45 days. The precise number ofchecks she claimed to have received from Gainesalso varied. 7 Vereentold police in February 2008that she had shown the blank checks toTolces and Hughes because Gaines had asked her if she knew anyone who might be ableto cash them, and Vereen therefore asked Tolces and Hughes if they could cash them.Tolcestestified the first time he met Gaines was at Vereen's apartment, where theydiscussed whether Tolces (or anyone he knew)hadthe ink necessary for forging thechecks. 8 According to Tolces's version, "the girls" (Martin and Bowser) were not with himand Hughes when Vereen contacted them by telephone demanding they return, andthatitwas he and Hughes whothen wentto Vereen's apartment. However, Martin's versionwasthat she was at Hughes's apartment with Tolces and Hughes whenthe telephonecallfrom Vereen camein,and she could not rememberifjust she and Hughes responded bygoing to Vereen's apartment, or whether Tolces also went. Hughes's version was that hedid not voluntarily respond to Vereen's demand,but that he and Tolces (but not Martin)were later forced by Gaines to accompany Gaines to Vereen's apartment. 7 ! : | apprehensive and returned to his own apartment, but Tolces decided hewould stay to talk with Vereen to assure her he had nottaken anything. While Tolces wasstill at the bottom ofthe stairs, Gaines arrived and they walked up together and entered Vereen's apartment.? Tolces recalled that Martin was already inside the apartment when he and Gaines walked inside. Lavender arrived soon after.10 . | . After some discussion, Gaines obtained a gun and then togk Tolces to look for Bowser. They wentto an apartment occupied by "Renn," Bowser's ex-boyfriend, who told them Bowser might be at a nearby apartment. Tolces and Gaines wentto that apartment and Gaines knocked or kicked the door open, brandishedhis gun, and took Bowserfrom the apartment. They then returned to, and left Bowser at, Vereen's apartment.!! Gaines then took Tolces with him to get Hughes. Tolces attracted 9 Tolces acknowledged he had told police during an interview that Gaines and Lavender had taken him to Vereen's apartmentat gunpoint, but claimedhis memory at trial was better than it was at the time of the interview. 10 Martin's recollection wasthat she arrived at Vereen's apartment with Hughes, and Tolces was already there when she arrived. Tolces believed both Martin and Bowser had stayed at Vereen's apartment and werealreadythere. 1] Precisely how Bowserarrived at Vereen's apartment was also a matter of some disagreement amongthe prosecution's witnesses. According to Tolces, he and Gaines met Bowserand then went to get Hughes. However, according to Hughes, defendants wereat Vereen's apartment with Vereen, Hughes, and others. At|some point during the night, defendants directed Vereen andHughes to go get Bowser. | Vereen and Hughes went to a couple ofplaces before finding Bowser andtaking her back to Vereen's apartment, where defendants were waiting. When Hughes was askedto explain one discrepancy between histrial testimony (that he wentto get Bowser during the night) and the statements he had earlier given to police (that he had goneto Collect Bowser around 2:00 p.m.), he responded "I don't know. Somethingjust is not right right now. ... (T] ... (9] . .. Somethingis a blur right now. [J]... [[]... I know what I know. Ido. I 8 Hughes's attention by tossing a small rock against a window of Hughes's apartment. When Hugheslooked out, he saw Gaines holding a gun and heard Gaines order him to come downstairs. Gainesthreatened to kill him and his (Hughes's) motherifhe did not comply. Hughes cameoutside but was reluctant to go with them. Tolces was able to persuade Hughes to accompany them, andthey gotinto a black car driven by Gaines. 12 Onthe drive back to Vereen's apartment, Hughes and Tolces asked Gaines what was going on, but Gainestold them to "shut the fuck up" or he would "hit [them] with his gun,"and periodically told them they were "goingto get what [they] had coming [to them]." Gaines also said Tolces was "going to die tonight," and would be digging his Own grave. As soon as theyarrived at Vereen's apartment, Gaines pushed Hughesinside where Vereen began hitting, punching and kicking him. Gaines and Vereen then stood Hughesup andescorted him and Tolcesinto a back bedroom. Eventually, all four targets just got my story mixed up. That's all it is." Vereen,for her part, denied that Hughes'sstory ofVereen's involvementin getting Bowserwas true. In contrastto Hughes'stestimony, Martin testified she arrived at Vereen's apartment with Hughes andthatBowser was already there when Martin arrived. 12 Hughes agreed with Tolces that Gaines cameto Hughes's apartmentto get him,but testified (contrary to Tolces) that Tolces was with Hughesin the apartment whenGainesarrived, and that Gaines forced both ofthem to accompany him back to Vereen'sapartment. Hughes's trial testimony—that Gaines came and got.Hughes and Tolces fromHughes's apartment—also diverged from his own statementto police investigators thatGaines and another man cameto Hughes's apartmentto get Hughesand Tolces. 9 of defendants’ inquisition (Hughes, Martin; Tolces and Bowser) were takento the back bedroom with Lavender, Gaines and Vereen, and the physical abuse began in earnest, 13 Vereen slapped Hughes, grabbed him bythe ears and shook him, trying to force him to reveal the location ofthe checks. While in the back bedroom, Gaines and Lavenderheated up spoons, knives and forks with a lighter, and ised these heated instruments to burn Bowser's breasts, and also burned Martin's forchead. Theyalso stuck the tines of the fork into Bowser's legs. Both Martin and Bowser were screaming. Martin alsotestified that, after the girls were burned with te heated utensils, Lavender took them into a bathroom and handcuffed them over the showerrod. Lavenderthen used a pair of scissors to cut Martin's shirt from the bottom up, Cutting throughher bra and exposingher breasts. Lavenderdid the same thing to Bowser, and also pulled down Bowser's pants. While rubbing the scissors against them, Lavendertold them that if they did not reveal the location of the checks, he was "going to put the 13 The description of this segmentofthe events also differed! among Hughes, Martin and Tolces. Hughestestified that, after he and Vereen brought Bowser back to Vereen's apartment,all four went into the back bedroom wheretheinitial: questioning and abuse occurred. Martin agreed with Hughesthat all four victims spent sometime in the bedroom together when Gaines and Lavender commenced questioning and torturing them. Martin testified it was only later that Gaines and Lavender separated the girls (Martin and Bowser) from the boys (Hughes and Tolces). However, Tolcestestified he and Gaines (not Vereen and Hughes)retrieved Bowserand returned with herto Vereen's apartment, he and Hughes were immediately separated from Bowser and Martin on arriving at the apartment, andthat he and Hughesremained in the living room the entire time. Vereen recalled that Lavendertook the girls (Bowser and Martin) into the back | bedroom to question them about the checks while Gaines-questioned the boys (Tolces and Hughes)in the living room. So |: 10 scissors up [them]." At some point, either Gaines or Lavender also threatened that they would take the girls out to the desert and "make [them] dig [their] own hole." Gaines was also busy trying to extract the information from the boysin the living room. At one point, Gaines threw a knife at Tolces. Gaines also struck Hughesin the face or forehead with his gun. At some point during the ordeal, Which Hughesestimated lasted from 8:00 or 9:00 p.m. until 6:00 a.m., Gaines also grabbed a hammerandchisel and threatened to hit Hughes if he did not reveal the location of the checks. He then forced Hughesto the floor and began to tap the endofthe chisel on Hughes's ear. Gaines then used the hammertopoundtheflat end ofsomenails against Hughes's head. Bythis time, the girls had been broughtback into the living room and were handcuffed together. Bowser had no clothes on and Martin was wearing only the shirt and bra that had been cut open. As Gaines was aboutto again use the hammerand nail on Hughes, Bowser blurted out that she had taken the checks and said she had given them:to a friend of Tolces. Gaines, Lavender and Vereen began punching and slapping Bowser, and told her she was goingto die. Bowser was screamingfor herlife. Next, either Gaines or Lavender began to shave Bowser's head with some clippers, which were pulling her hair’ out and causing her to bleed. They then forced Tolces to take over shaving her head, He 1] shaved a sizeable amountofhair from her head before he stopped, and her skin was rippedat the hairline. 14 - Around daybreak, Gaines and Lavender wrapped something aroundthestill sobbing Bowser andled her in handcuffs from the apartment. This was thelast time any ofthe witnesses saw Bowser.15 However, whenVereen encountered Gaines the next | morning, Gaines (referring to Bowser) told Vereen that the "girl is in a canal with a bag over her headbarely breathing." Vereen did not take the remark seriously and thought Bowserhad simply run away. It appears neither Vereennorany ofthe others elected to make any contemporaneousreports to police of the abuseor the abduction. During this all-night series of events, there was no evidence anyneighboring apartment dweller complained or reported anything unusual. Discovery ofthe Body Around 3:00 a.m. on August 20, 2003, Bowser's lifeless body was discovered in an irrigation ditch in Imperial County. However,her body was net identified until February 2006. 14 Martin told police investigators that Hughes was forced to shave some ofBowser's hair, and that Vereen then shaved off the remainder. 15 Although Vereen testified she did not see Bowseragain, she told police during an interview that she had last seen Bowser walking her bike in the company of Hughes and Tolces. co 12 The autopsy by Dr. Garber was performedthedayafter discovery of Bowser's body. He believed the body had been in the ditch no morethan one ortwo days beforeit was discovered. He concluded, based onthe condition of the body, that she had been alive when she was placedin the water, had struggled while being held, and had died of drowning, However, he found no pathognomic evidence ofdrowning,i.e. no indicators that permitted him to say absolutely that drowning was the cause of death. For"example, ~ he did not find water or foam or frothy liquids in any ofthe airways, bit he attributed the absence of these materials to the level of decomposition of the body. His opinion as to the cause of death waspremisedon the fact that she (1) was found in a body ofwater, (2) had emergent wrinkling or changes on her hands andfeet, and (3) had ahemorrhage in her middle ears. However, he agreed the hemorrhage in her middle ears did not preclude other causes of death. | Dr. Garber characterized drowning as "a diagnosis of exclusion," which meansthe pathologist rules out other causes of death (such as strangulation or natural Causes) before concluding drowningis the actual cause ofdeath. Oneofthe exclusions was whether intoxication played a role in the death, andhetestified he awaited the results of toxicology tests before reaching his conclusion that drowning was thecause of death. He acknowledged a toxicology report showed somelevels ofgamma hydroxybutyric acid (GHB, a so-called "date rape" drug), but he stated that GHB is normally presentin the body and wasat normal postmortem levels. He excluded drug overdose as the cause of death based on the toxicology reports and his discussions with the toxicologist. J 13 | | He could not determine whether the body exhibited any bums or abrasions becauseofthe level of decomposition ofthe body, but there was bruising present. The photographsofthe body showed nosigns any ofBowser's hair had been shaved, and the autopsy report contained no mention that Dr. Garber observed any shaving of Bowser's hair. | B. The Defense Case ' : The parties stipulated that Hughes, Tolces and Martin wereall released from Juvenile Hall between August 2, 2003, and August14, 2003. Another actor in _ defendants’ scenario, Joshua Thibideaux, was incarcerated in Juvenile Hail during the same time frame. On October 23, 2007, over a year and one-halfafter police identified the body as Bowser, Thibideaux gave a statementto police that was read to the jury. Although he wasreleased on the same day that Bowser's body was found, Thibideaux's statementto police claimed he was at the apartment during the inquisition and torture of his fellow Juvenile Hall inmates. He prefaced his story by saying, "you gotta understand like small details like what we were doing andstuff I don't really, rememberbutI remember hugethings," but then related a description of events that tracked many ofthe |salient aspects ofthe story conveyed by those fellow Juvenile Hall inmates. Specifically, he describedthe triggering events—that Hughes, Tolces and Bowser!6 planned to and (16 Thibideaux told police he did not know Bowser well but saw her occasionally before she disappeared. He agreed with the police detective that prior to the night in question, "everybody was doing [Bowser]" and "were passing her around," although he never had sex with her. did steal the checks belonging to defendants—and that whenthetheft was discovered, Hughes, Tolces, Bowser and Thibideaux wentto Vereen's apartment where defendants were waiting; when the group arrived, defendants struck Hughesandtortured Bowser with heated implements to get the checks back. Whenthe detective asked if another victim had been present, Thibideaux agreed a "Mary" was present, butinitially denied any recollectionthat Martin was present because she was Thibideaux's "ex-girlfriend {and} I'm pretty sure I'd know if she wasin there." However, when police told Thibideaux that Martin claimed to have been one of the victims, Thibideaux eventually agreed Martin was there because "{ijf she said she was there, she probably has a better memory than Ido." Thibideaux went on to describe defendants tying up Martin and - Bowser and torturing the nakedgirls, anddefendants’ pistol whipping and use of a hammerto torture Hughes. However, the following day, police confronted Thibideaux with the impossibility of his being present at Vereen's apartment becatise Thibideaux's incarceration at Juvenile Hall did not end until hours after Bowser's body had already | been found. The body, found inImperial County, was finally identified as Bowserin February 2006. By that time, Hughes had moved from Palm Desert (located in Riverside County whereall the events had transpired) and was living in Michigan. Ms, Fowler (an investigator with Imperial County) called Hughesat his new home and identified herself as an investigator with Imperial County, but did not otherwise state the reason she was calling. Although Hughes had no apparent connection to Imperial County and wasnot 15 told the reason for her call, he nevertheless immediately responded, "I'm glad youcalled. I've been wantingto tell somebody aboutthis."17. 4 ' The defense forensic pathologist, Dr Bonnell, reviewed muimerous documents on | which hereliedfor his opinions.18 He would not have concluded Bowser's death was due to drowning because ‘there was no "foamy edema" (water in the lungs) or water in the stomach, andthe factors on which Dr. Garber relied (skin wrinkling and middle ear hemorrhaging)are present any time a body is immersed in water for a sufficient length of time, even ifthat immersion is postmortem. Healso reviewed the autopsy and other photographs and found no evidence Bowser had been stabbed with a fork, or had any burn marks, or that any hair had been shaved from her head. Dr. Bonnell agreed with Dr. Garber that drowning wasa diagnosis of exclusion, requiring thepathologist to rule out other causes (suchas preexisting conditions or drugs) that might explain the death. Dr. Bonnell explained that, because he could notrule out’ toxicology as the causé of death, he could not conclude drowning was the actual cause of Bowser's death. He explained that toxicology reports showed an elevated level ofGHB in Bowser's vitreous fluids of 54.4 milligramsperliter. That amount was well above the 1 milligram perliter considered a normal therapeutic level, and studies had shownthat 17 Fowler had talked to a Mr. Loomis before she contacted Hughes, and Loomis was a friend of Hughes, but there was no evidence Loomis had talked|to Hughes about Fowler's call. 18 He reviewed Sheriff's investigative reports, the autopsy report, the coroner's memo, the toxicology results, photographs ofthe scene andthe autopsy,the testimony of Dr. Garber, and interview transcripts from various individuals. 16 anything above 7 milligramsperliter is attributable to administrated GHB rather than the amount ofGHB produced bythe bodyafter death. Accordingly, Dr. Bonnell concluded Bowserhad ingested GHB sometimebefore her death, Dr. Bonnell also noted that GHB is a respiratory ‘depressant, and any levels above 50 milligrams perliter in the blood is normally considered toxic and anything above 700 milligramsis lethal in and of itself. Dr. Bonnell stated he could not determine the amountofGHB Bowser had ingested because the body metabolizes GHB andtherefore the residual levels decrease over time. An excessive dose can render the user unconscious, and he concluded there was a strong possibility Bowser overdosed on GHB butcould not proveit. Dr. Bonnellalso testified Bowser had been dead between six and 12 hours before her body was discovered, andthat her body had beenin the waterfor only about an hour when it wasdiscovered. This opinion was basedin part on a witness's' account ofhow ‘the body wasdiscovered,!9 and in part because theré was no sunburn or severe decomposition that would suggest the body had been exposed to the extreme summer _ heat and sun associated with the desert in the summer. He believed Bowserwas already dead whenplacedinto the water becausethe scrape on herleft upper chest showed no “vital reaction" and therefore was a postmortem scrape. C. Rebuttal and Surrebuttal Therebuttal and surrebuttal presentations werelimited to scientific witness testimony. The prosecution witness, Mr. Anderson,is a toxicologist experienced with 19 Dr. Bonnellrelied on a witness whostated the body wasnot there around midnightbut was there whenthe witness returned around 3:00 a.m. 17 GHB. Hetestified that GHB levels of 54 milligramsperliter is insufficient to be the sole causeof death, and when levels are that low, "you better look for|another contributing | cause of death." He concededthetest results strongly suggested Bowser had consumed GHB,but it was not a'"substantial” ingestion. However,he agreed GHB has a very short half-life of between 20 and 60 minutgs, so Bowser's GHB levels could have been twice that level just 20 to 30 minutes before her death. He agreed there were studiesthat attributed death to levels below54, but he disagreed with those conclusions andstated the data had been misinterpreted. Dr. Bonnell, testifying in surrebuttal, reaffirmed that any GHB levels above 7 show the decedent ingested GHB,andstudies have indicated a minimum level to be 55 or 60 milligrams, while somestudies have suggested toxicity can begin as low as 20, and the variation waslikely attributable to the different body masses and metabolation rates ofthe subjects. Healso noted that, because thehalf-life ofGHB can be as fast as 18 minutes, a reading of 54 at the time ofBowser's death could mean her GHB levels were over 400 a little over an hour before her death ifBowser wasa "fast metabolizer," and her body would have continued to metabolize the GHB evenifshe had lapsed into a coma. II ANALYSIS A. The Jury Misconduct Claim - Defendants contendthetrial court erred when it denied their motion for a newtrial based on jury misconduct becauseit erroneously restricted the evidence presented in support ofthe motion, failed to conduct a Hedgecock hearing to Tesolve the disputed 18 issue ofwhetherthe jury's misconduct was substantial rather than fleeting, and concluded the presumption ofprejudice had been sufficiently rebutted. 1. The Motions Gaines filed a motion for new trial, in which Lavender joined, alleging jury misconduct. They arguedthe jjury improperly discussed and considered duringtheir deliberations defendants' failure to testify, whichdiscussion was likely encouraged by the Grigfin29 error committed by the prosecutor during her rebuttal closing argument. Defendants supported the motion with declarations from three jurors. Juror No. 10 averred that, "There was no testimony from the defendants and we discussed this fact during the deliberations and openly talked about whytheydid not testify and that this fact made them appear guilty to us. iW There was not enough testimony from defendants’ witnesses. The jury discussed that the defendants should have provided more witnesses, . including themselves, to testify on their behalf.” Declarations fromtwootherjJurors confirmed there were discussions concerning defendants’ failure to testify: Juror No. 9's declaration (as filed by defendants in support of the motion for new rial stated "[s]everal jurors . . . discussed the fact that the Defendants did nottestify in this case"; and Juror No.4's declaration(as filed by defendantsin support ofthe motion fornewtrial) stated "thefact that the defendants did not testify was discussed at length during the deliberations and also played a large part in our decision. We discussed the fact that if the [defendants] were innocentthen they should'vetestified." (Italics added.) 20 Griffin v. California (1965) 380 U.S. 609. 19 The prosecution filed opposition to the motion, including thro declarations from two of defendants! declarants (the "clarifying" declarations),2! and a declaration from the foreperson averring there was a single referenceto their failure to testify and that it was immediately quashed by his admonishment.22 21 Asdiscussed above, Juror No.9's declaration in support ofthe motion for new trial stated "[s]everal jurors . . . discussed the fact that the Defendants did nottestify in this case." However, the prosecution's opposition to the motion for newtrial included a "clarifying" declaration from Juror No.9 stating only one juror mentioned thefailure to testify, and the foreman admonished that they could not consider that issue, and the "several jurors" mentioned in her original declaration referred to several jurors verbally agreeing with that admonishment. As also discussed above, Juror No.4's declaration in support of the motion for new trial stated "the fact that the defendants did not testify was discussed at length during the deliberations and also playeda large part in our decision. Wediscussedthe fact that ifthe [defendants] were innocent then they should've testified." (Italics added.) However,in the "clarifying" declaration filed by the prosecution in opposition to the motion for newtrial, Juror No. 4 said only one juror mentionedthefailureto testify, the foreman admonished that they could not considerthat issue, and that was the end ofthe discussion. Juror No. 4's "clarifying" declaration left unexplained whyhis previous description (e.g. that it was an “at length" discussion that played a "large part" in the decision) was inaccurate. 22 In their brieffiled after our Supreme Courtreturned this matter to us with directions to reconsiderthis matter in light ofBryant, supra, 191 Cal.App.4th 1457, the People seem to assert the foregoing evidentiary showing from both sides was fatally flawed. They argue oneofthe declarations submitted by the defense in support of the motion contained only the month and year (butdid not specify the actual date) it was signed, which rendered the declaration a nullity because ofnoncompliance with Code of Civil Procedure section 2015.5. Additionally, the People note noneofthe declarations. submitted by the prosecution stated either the place of execution orthat they were made "under the laws of the State of California,” which rendered the prosecution's declarations inadmissible because ofnoncompliance with Code ofCivil Procedure section 2015.5, Citing Bryant's holding that these technical defects produced an evidentiary vacuum, because "it is not permissible to treat unsworn statements of [the}jurors as though they had been made underpenalty ofperjury in order to attack a jury verdict for misconduct" (Bryant, supra, 191 Cal.App.4th at p. 1470), the People argue the proper disposition is to “return the matterto thetrial court for a full and complete hearing with competent evidence.” (/d. at p. 1471.) However,it is black letter law in California that, when 20 In reply, Gainesfiled a declaration from the investigator whointerviewed the jurors to obtaintheir original declarations, and provided proposed testimony to buttress the extentofthe jury's discussions about defendants’failure to testify, and to undermine the clarifying declarations of Juror Nos. 4 and 9 filed by the prosecution. The declarationsare filed under CodeofCivil Procedure section 2015.5 and there is no timely -objection attrial that the declarations did not comply with the technical requirements ofCode of Civil Procedure section 2015.5, a party may not complain on appealoftheiradmission into evidence. (Robinson v. Grossman (1997) 57 Cal.App.4th 634, 648-649;Rader v. Thrasher (1972) 22 Cal.App.3d 883, 889: Fullerv. Goodyear Tire & RubberCo. (1970) 7 Cal-App.3d 690, 693; People v. UnitedBonding Ins. Co. (1966) 240Cal.App.2d 895, 896, fn. 2.) Here, the People do not dispute that two ofthe defensedeclarations (from Juror Nos. 9 & 10) were letter perfect. The only defect in thefinaldefense declaration (from Juror No. 4) was it identified the month and year but not theactual day it was signed,butthis js precisely the kind of curable defectthat is waivedwhere,as here, the opposing party fails to object at trial. (See, e.g., UnitedBonding, at p.896, fn: 2 [declaration wasnotdated in violation of Code of Civil Procedure section2015.5 but "no objection on that ground was madein thetrial court and (70 daysstill- remaining within which to moveto vacate the forfeiture) it could easily have been cured.We deem the point waived."}.) Although Bryant seems to holdthat objections to theform ofjuror declarations are unwaivable, we believe Bryant's ipse dixit holding, reachedwith no explanationor analysis and without any discussion of well-established lawunderminingits conclusion (see Bryant, at p. 1470), should not be perpetuated, andatleast one other court has rejectedthis aspect ofBryant. (See People y. Engstrom (2011)-201 CalApp.4th 174, 184 & fn. 10 {"Although the declaration was hearsay, the Peopledid not makea hearsay objection, forfeiting the contention on appeal" and decliningtofollow Bryant].) Accordingly, wetreat as admissible the declarations filed by theparties.Importantly, we also apprehendthatstrict adherence to Bryant would be a Pyrrhicvictory for the People: the logical conclusion of excludingall declarations that did notstrictly comply withCodeofCivil Procedure section 2015.5 would produce anevidentiary landscape in which the defense evidence ofmisconduct—from Juror Nos. 9and 10 (which the People do not suggestfailed to comply with Code Civ. Proc,§ 2015.5)—was unrebutted by any evidencefrom the prosecution because the Peopleconcede noneofthe prosecution's counter-declarations complied with Code of CivilProcedure section 2015.5, and Bryant warned. "{nJor may the prosecution rely on anunsworn statement from a jurorto refute affidavits properly submitted by the defendantin support of a motion for new trial based on jury misconduct." (Bryant, supra, 191Cal.App.4th at p. 1469.) However, because the defense below did not object, we haveincluded the prosecution's evidence in our analysis. 21 investigator stated he read Juror No.4's clarifying declaration and averred "[t]his is... not what he told me... . [Juror No. 4] told methat the defendants nottestifying was discussedfor some period oftime and was more than a mere mentioning ofthatfact. He also told methat the jury discussed thatifthey were really innocent they would have testified. He never said that [the foreperson] or any other juror admonished them to stop talking about thator that they could not consider this in their deliberations." (Italics added.) The investigator also stated that he read Juror No.9's clarifying declaration and averred "[t]his is not what she told me whenI first interviewedher. [Juror No. 9} told me that several jurors discussed the fact thatthe defendants did not te stify. She did say that at some later point in time that ajurorsaid that they should not discuss that. She never told me that the foreperson immediatelyput a stop to that discussion. " (Italics added.) Finally, the investigator described his interview with another juror (M.G), who told the investigator thejury discussed defendants' failure to testify andthe adverse inference drawn from their silence.23 Thetrial court, recognizing the. delicate and fine line separating admissible evidence of objective facts occurring in the jury room and inadmissible evidence of 23 The investigator averred that M.G.told him thefact the defendants did nottestify was "the main reason they found them guilty. [M.G.] said that thejury discussed this during their deliberations. [M.G.] said that the jury said during deliberations that if they werereally innocent then they should havetestified and told us they were innocent." However,the investigator explained that when he went back to M.G.'s house to obtain her signature on a declaration, M.G.'s husbandtold the investigator they would notfilea - declaration and if M.G. had known the investigator wasS assisting the defense, M.G. would not have spoken to him. 22 subjective reasoning processes ofjurors(see, e.g., People v. Cissna (2010) 182 Cal.App.4th 1105, 1116 (Cissna)), ruled on the defense evidence as follows: (1) Juror No. 9's statementinher original declaration that "[s]everaljurors also discussed the fact that the Defendants did nottestify in. this case" was admitted. The court excluded the balance ofheroriginal declaration as reflecting thoughtprocesses ofthe jury. (2) Juror No. 4's statementin his original declaration that "thie factthat the defendants did not testify was discussed at length during thedeliberations" was admitted, The court excluded his statements thatthese discussions "played a large part in our decision"and that "[w]ediscussedthe fact that if the defendants were innocent then theyshould'vetestified" as reflecting thought processes ofthe jury. (3) Juror No.10's statementin his declaration that "[t]here was notestimony from the defendants and we discussedthis fact during thedeliberations" was admitted. The court excluded the balanceofthedeclaration, including the statements that the jury "openly talkedabout whythey did not testify and that this fact made them appear" guilty to us" and the statement that "(t]he jurors discussedthat thedefendants should have provided more witnesses, including.themselves,to testify on their behalf"as reflecting thought processesof thejury. (4) The court excluded the entirety of the investigator's declarationas hearsay, irrelevant, and a "violation ofEvidence Code section(1150}." Thetrial court, applying the samedistinction between admissible evidence of objective facts and inadmissible evidence of the subjective reasoning processes ofjurors> ruled on the prosecution evidence as follows: (1) Juror No. 9's statementin her clarifying declaration that "{t]heonly discussion that occurred during deliberations regarding thedefendants nottestifying is when one of the jurors mentionedit. Theforeperson immediately admonished that juror that we couldnotconsider that issue. Several other jurors then also repeated thatitwas an issue that we could not consider" was admitted. Thecourt 23 excluded the balance ofheroriginal declaration as reflecting thought processesofthe jury, or as irrelevant or hearsay. (2) Juror No.4's statement in his clarifying declaration that "(t]he only discussion that occurred during deliberations regarding the defendants' nottestifying is when a juror mentionedit. |The foreperson immediately told the juror that we could not consider that issue" was admitted. (3) Juror No. 12's statement that "[t]he only discussion that occurred during deliberations regarding the defendants not testifying is when one ofthe jurors mentioned it. I immediately admonished that juror that we could not consider that issue. I specifically recall that Juror No. 11. .". also stated that we were not to consider thatlissue and must follow the instructions" was admitted. The court excluded the balance ofJuror No. 12's declaration.24 Onthis record, the court found misconductdid occur. However, the court found the presumption ofprejudice had been rebutted by the prosecution's showingthat no actual prejudice occurred, because the foreperson's admonition cu red the misconduct. The court also found there wasinsufficient basis for ordering a Hedgecock hearing, because there were no clearly defined and specific disputes on material issues relating to the misconduct, and a hearing would present a danger of inquiring into the thought processes ofthe jurors. 2. Legal Principles A defendant has a constitutional right to a trial by an impartial jury. (nre Hamilton (1999) 20 Cal.4th 273, 293.) "An impartial jury is one in which no member has 24 Whentheprosecution asked whether Juror No. 12's statement, averring "[t]hat was the one and only referencé to the defendants not testifying that occurred during deliberations," would be admitted, the court stated it would not admitit "becauseit will impact on whetherthere should be an evidentiary hearing.” 24 been improperly influenced [citations] and every memberis' “capableand willing to decide the case solely on the evidence beforeit (citations]."‘" (/d. at p. 294.) "Prejudicial jury misconduct constitutes groundsfor a newtrial." (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.) In general, jurors commit misconduct when they directly violate the oaths, duties, and admonitions imposed on them. (In re Hamilton, supra, 20 Cal.4th at p. 294.) | It is well established that ajury commits misconduct when it violates a trial court's instruction notto discuss the defendant's failureto testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).) "This misconductgives rise to a presumption of prejudice, which ‘mayberebutted . . . by a reviewingcourt's determination, upon [an examination of] the entire record,that there is no substantiallikelihood that the [defendant] suffered actual harm.' " (Ibid. ) 3. Procedural Framework “When a defendant moves for a new trial based on Jury misconduct, thetrial court undertakes a three-part inquiry. ‘First, the court must determine whether the evidence presented for its consideration is admissible. . . . [{J] Once the court finds the evidenceis admissible, it must then consider whetherthe facts establish misconduct. ... [{] Finally, if misconductis found to have occurred,the court must determine whether the misconduct was prejudicial.’ " (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.) This court recently explained that, when challenging the validity of a verdict based on juror misconduct, the first step requires a defendantto “present evidenceofovert acts or statements that are objectively ascertainable by sight, hearing,or the other senses." 25 | | (Cissna, supra, 182 Cal.App.4th at p. 1116.) We also cautionedthat "{njo evidence may be presented conceming the subjective reasoning processesofajuror that can neitherbe corroborated nor disproved... ." (Jbid.) Thus,thefirst step requires the court to cull . admissible evidence of overt conduct from inadmissible evidence purporting to describe the subjective reasoning processes of the jurororjury.. In the second step, the court must examine the admissiblé evidence assembled during the first step to determine whether misconduct occurred. Where the admissible evidenceraises a strong possibilitythat misconduct has occurred,|the trial court also has discretion to determine whether to conduct an evidentiary hearing to resolve factual disputes raised by the claim ofjuror misconduct. (People v. Avila (2006) 38 Cal.4th 491, 604.) A defendant is not entitled to an evidentiary hearing "as a matter of right. Sucha hearing should be held only whenthe court concludes an evidentiary hearingis 'necessary to resolve material, disputed issuesof fact.' [Citation.] 'The hearing . . . should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' " bid.) If the court determines there was misconduct, it must then turn to the final ‘step of determining prejudice. Asto the last step, ourSupreme Court has explained that "[m]isconduct by ajuror... usually raises a rebuttable ‘presumption’ ofprejudice. [Citations.] This presumption aids parties who are barred by statute from establishing the actual prejudicial effect of the incident under scrutiny [citations] and accommodatesthe 26 fact that the external circumstancesofthe incident are often themselvesreliable indicators of underlying bias [citation]. [{] Still, whether an individual verdict must be overturned forjury misconduct or irregularity '"'is resolved by. reference to the substantial likelihoodtest, an objective standard,’ "' [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entirerecord in the particular case, including the nature ofthe misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice." (in re Hamilton, supra, 20 Cal.Ath at pp. 295-296.) | Our Supreme Court in Jn re Carpenter (1995) 9 Cal.4th 634, after noting a verdict will be set aside if there appears to be a substantial likelihood ofjuror bias, expanded on the relevant inquiry by explaining that juror bias: "can appear in two different ways. First, we will find bias if the.[improper conduct], judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, welookto the nature of the misconduct and the surroundingcircumstances to determine whetherit is substantially likely the jurorwasactually biased against the defendant. [Citation.] The judgmentmustbesetaside ifthe court finds prejudice undereithertest. "Thefirst ofthese tests is analogousto the general standard for _ harmless-error analysis under California law. Underthis standard, a findingof 'inherently' likely bias is required when,but only when, the [improper conduct] was so prejudicial in context thatits erroneous introduction in thetrialitselfwould have warranted reversal of the judgment. Application ofthis ‘inherent prejudice' test obviously depends upon a review ofthetrial record to determine the prejudicial effect of the [improper conduct]. "But a finding that the [improper conduct] was ‘harmless’ by ‘appellate standards, and thus not ‘inherently’ biasing, does not end the inquiry. Ultimately, the testfor determining whetherjuror misconductlikely resulted in actualbias is ‘differentfrom, and 27 indeedless tolerant than,' normal harmless error analysis, for ifit appears substantially likely that ajuroris actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiasedjury would have reached the same verdict. [Citation.] A biased adjudicator is one ofthe few 'structural defects in the constitution ofthe trial mechanism, which defy analysis by "harmless-error" standards.' [Citations.] Thus, even ifthe [misconduct] was not so prejudicial, in and ofitself, as to cause ‘inherent'bias underthefirst test, the totality ofthe circumstances surrounding the misconduct must still be examinedto determine objectively whether a substantial likelihood ofactual bias nonetheless arose. Underthis second, or'circumstantial,' test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions oftheentire record, including the trial record, must be considered. "The presumption ofprejudice may be rebutted,inter aliagby a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ " (Inire Carpenter, supra, 9 Cal.4th at pp. 653-654,first and seconditalics added.) Whetherprejudice arose from juror misconductis a mixed question of law and fact. "On appeal from a ruling denying a new trial motion baséd pejuror misconduct, we defer to the trial court's factual findings if supported by substantial evidence, and exercise our independentjudgment on the issue-ofwhether prejudice arose from the misconduct... ." (Cissna, supra, 182 Cal.App.4th at p. 1117; see also People v. Nesler (1997) 16 Cal.4th 561, 582 [Whether prejudice arose from juror, misconduct ... is a mixed question of law and fact subject to an appellate court's independent determination."); People v. Danks (2004) 32 Cal.4th 269, 303-304,)25, 25 Aspart of our compliance with the Supreme Court's direction to reconsider thecause in light ofBryant, supra, 191 Cal.App.4th 1457, Von Villas, supra, 11 Cal.App.4th175, and Perez, supra, 4 Cal.App.4th 893, we conclude those cases are additionallyinconsistent with controlling Supreme Court authority on the appropriate standard ofreview. In Perez, the court accurately stated the three-step process for a trial court to 28 4. Analysis ofFirst Step As a preliminary matter, we conclude the court erred whenit excluded, and therefore did not weigh, certain evidence relevantto showing the scopeofthe misconduct. Although the court admitted Juror No.4's statement (in his original declaration) that "the fact that the defendants did nottestify wasdiscussed at length during the deliberations,"it excluded his Statements that these discussions “played a large part in our decision" and that "[w]e discussedthe fact that ifthe [deferidants] were innocent then they should'vetestified." The latter statementclearly represented “statements that are objectively ascertainable by sight, hearing, or the other senses” (Cissna, supra, 182 Cal.App.4th at p. 1116), and should have been admitted. The former Statement, while arguably describing the "subjective reasoning processes"ofthe jury,is at least equally capable ofan interpretation that described the quantitative'level at which evaluate a motion for newtrial based on jury misconduct, but then stated "[a] trial courthas broad discretion in ruling on eachofthese questions andits rulingswill not bedisturbed absent a clear abuse of discretion." (Perez, at p. 906,italics added.) Bryantcited Perez with approvalfor this standard ofreview (Bryant, at p. 1467), and Von Villaslikewise stated a “trial court has broad discretion in ruling on each ofthese questions andits rulings will not be disturbed absent a clear abuseofdiscretion." (Yon Villas, atp. 255.) In People v Ault (2004) 33 Cal.4th 1250, our Supreme Court extensivelydiscussed the properstandard of review for newtrial rulings. Although recognizing thehistorical maxim that such rulings are "disturbed only for clear abuse of. . . discretion"(id. at p. 1260), the court noted a contrary trend in a "series of decisions"that reserve thedeferential standard to. orders granting newtrials. (/bid.) In contrast, for orders denyinga newtrial, as was the case in Perez, Von Villas and Bryant, the cases appear to apply theindependent review standardas the appropriate approach,partly because denials of newtrial motions can cut off, with finality, "a party's rights, either as to the entire case, or on a. Significant issue in the litigation." (Ault, at p. 1266.) : 29 | | . the failure to testify was involved in the jury's discussions,26 andtherefore was admissible as objectively ascertainable conduct. Although the court admitted Juror No. 10's statement that'"[tJhere was no testimony fromthe defendants and we discussedthis’ fact during the deliberations,"it excluded the balance ofthe declaration, While most ofthe balance ofJuror No. 10's statement was inadmissible, the court excluded two statements (e.g. that the jury "openly talked about why they did not testify and that this fact made them appear guilty to us" and that "[t]he jurors discussed that the defendants should have provided more witnesses, including themselves,to testify on their behalf")27 that clearly represented "statements that are objectively ascertainable by sight, hearing, or the other senses" (Cissna, supra, 182 Cal.App.4th at p. 1116), and should have been admitted. 26 Indeed, the context ofthe phrase lends additional weight to ourinterpretation that the phrase "played a large part in our decision" conveyed the quantitative level of the jury's discussions concerning defendants' failure to testify. Juror/No. 4 stated "the fact ‘ that the defendants did not testify wasdiscussedat length during the deliberations and _ also played a large part in our decision," suggesting his description of the "large part" was connected to his description of the "discussed at length"part ofhis declaration. 27 Juror No. 10's statementthat the jury discussed that "the defendants should have provided more witnesses, including themselves, totestify," may have been prompted by a statement madeby the prosecutor duringrebuttal closing argument. The prosecutor, responding to the defense argumentthat the prosecution had no testimony from defendants' employers or coworkers that defendants had not shown up for work on the day Bowser went missing, stated "[w]ell, guess what, ifthey had/an alibi, there's nothing stopping them from presentingit." Defendants’ failure to providean alibi, either by testifying or calling others, may have been the "more witnesses, including themselves" thejury discussed when evaluating their guilt. 30 Finally, the court entirely excluded the investigator's declaration, concludingit was hearsay.28 Certainly, unsworn hearsay is incompetent to prove misconduct (People v. Dykes (2009) 46 Cal.4th 731, 810-811),; but the investigator's declaration was submitted underpenalty ofperjury, and thereforeis distinct from the information considered in Dykes. We agree the investigator's averments as to what he was told by juror M.G.wasinadmissible hearsay, because it was offered for the truthofthe matters _ asserted,i.e. that the jury discussed defendants’ failure to testify during their deliberations and "the jury said during deliberations thatifthey werereally innocent then they should havetestified and told us they were innocent." However, the investigator's testimony, offered to impeach the clarifying declarations submitted by Juror Nos..4 and 9, was not inadmissible hearsay because it was offered as prior inconsistent statements by those jurors, which at a minimum made the Statements admissible under Evidence Code section 1202.29(Cf. People v. Williams (1976) 16 Cal.3d 663, 668.) 28 The court also excludedthe declaration as irrelevant and becauseit comprised anunspecified violation ofEvidence Code section 1150. The People on appeal do not seekto justify exclusion undereither ofthose grounds, and we do not further consider those 29 Theinvestigatorsaid he read Juror No.4's declaration andstated "this is... notwhat [Juror No. 4] told me. {Juror No.4] told methat the defendants not testifying was testified. He neversaid that [the foreperson] or any other juror admonished them to stoptalking aboutthatorthat they could not considerthis in their deliberations." Theinvestigator also stated that he read the clarifying declaration submitted by Juror No.9,and "{t}his is not what she told me whenIfirst interviewedher. [JurorNo. 9] told methat several jurors discussed the fact that the defendants did not testify. She did say thatat somelater point in time that a juror said that they should not discussthat. She never 31 : | 5. Analysis ofSecond Step . | Thestate of the admissible evidence beforethe trial court snowed the jury, in violation of the court's instructions and the defendants’rights, discussed the defendants’ failure to testify and the adverse inference to be drawn from that fact. Thetrial court found, and the People acknowledgedin their original brief on appeal, "[b]y discussing the fact that [defendants] had nottestified, [the] jurors committed misconduct." Indeed, the People also concededintheiroriginal brief on appeal "' "[t]his misconduct gives rise to a presumption ofprejudice, which 'may be rebutted' "' " (quoting People v. Loker (2008) 44 Cal.4th 691, 749 (Loker)). Becausethe People's concessions appear consonant with applicable law (see Leonard, supra, 40 Cal.4th at p. 1425), we accept these concessions _ and therefore turn to the issue ofwhetherthe presumption ofprejudice has been rebutted. (Ibid; accord, People v. Hord (1993) 15 Cal.App.4th 711, 725 (Hord).) " 6. Analysis ofThird Step Our independentreview ofthe entire record convincesus the presumption of prejudice has not been rebutted because the evidence does not show there was no substantial likelihood defendants suffered actual harm as a result of the jury misconduct. Webegin by noting there was no forensic evidence connecting defendants to Bowser's death az all, and even the forensic evidence and opinions concerning the cause ofher told me that the foreperson immediately put a stop to the discussion." Moreover,to the extent that the declarations submitted by the prosecution made Juror Nos. 4 and 9 “witness[es] .. . at the hearing" on theissue ofjury misconduct within the meaning of Evidence Code section 1235, their prior inconsistent statements would also be admissible under Evidence Code section1201 for the truth ofthe statements ‘containedin the declarations. (Evid. Code, §§ 1201.& 1235.) - 32 death were sharply conflicting and approaching equipoise. Becauseofthis dearth of forensic certainties, the jury was required to assess defendants’ guilt or innocence by deciding whetherit believed the prosecution's version ofwhat transpired, or whetherit instead gave sufficient credit to the defense theory of whathappened to raise a reasonable doubt asto the prosecution's version. The prosecution's version rested entirely on the testimonies of the prosecution's four witnesses whosetestimonies (at best)were inconsistent in numerousdetails among the four witnesses’ versions and (at worst) were inconsistent with the forensic evidence.30 In this milieu, the jury expressly discussed to some degrée (andaccordingto one juror’s declaration discussed to an extensive degree) thatits credibility calculus would be influenced by defendants' failure to testify in their own defense. In Cissna, supra, 182 Cal.App.4th 1105,this court considered an analogousclaim ofmisconduct: In Cissna, a juror extensively discussed the case With an outsider, and: one ofthe topics of their conversations was "the implications to be drawn from the fact defendant would not likely be testifying ...." (id. at p. 1119.) This court, noting the nature ofthe case 30 Martin and Hughestestified defendants repeatedly burned Bowser. Theprosecution's expert could not determine whetherthe body exhibited any burns, which heattributed to the level ofdecomposition ofthe body, even though the body was found lessthan 24 hours after Bowser disappeared and wasin the waterless than eight hours. Incontrast, the defense pathologist affirmatively stated there was no evidence of burnmarks. The prosecution witnesses also said Bowser's head had been partly (or fully)shaved, and there was no evidence the body was missing any hair. One witnessalso toldpolice that defendants had stabbed Bowser's leg with a fork: again, there was no forensicevidenceofany stab wounds. Finally, Vereentestified Gaines told herthat the "girl is ina canal with a bag over her head barely breathing." There was no evidence there was anybag found on or nearBowser's body. 33 , | ; ; oe |(chargesofcontinuous sexual molestation against a victim under the age of 14) madethe credibility of the prosecution's witness of pivotal importance, observed: "{T]he fact that Juror D. and G.discussed the import of, defendant's decision notto testify demonstrates that this outside influence was directedto a critical issue and one that was potentially highly detrimentalto the defense. Asis truein all criminal trials, the jury wasinstructed thatit is not permitted to consider or discuss the fact that defendantexercisedhis constitutional right notto testify. [Citation.] This rule is designed to prevent the jury from drawing adverse inferences against the defendantin violation ofthe constitutional right notto incriminate oneself. [Citation.] In some cases the courts have found comments about a defendant's failure to testify to be nonprejudicial misconduct. [Citing Hord, supra, 15 Cal.App.4th 711, Leonard, supra, 40 Cal.4th 1370 and Loker, supra, 44 Cal.4th 691,] . "Unlike the situations in Hord, Leonard and Loker, the circumstancesofthis case show the discussion of defendant's decision notto testify carried a high potential ofprejudice to the defense. In the absence ofphysical evidence, sexual molestation cases inevitably turn largely on the jury's evaluation of the victim's credibility. A defendantis entitled to have all 12 jurors makethis evaluation without considering whether the defendant took the stand to deny the accusations. The defendant's silence should not be a factor adding to any inferences that the victim is telling the truth. Thefact that Juror D. discussed defendant's silence with G.,reflects that Juror D. considered this factor... . This improperinfluence obviated the defendant's constitutionalright not to havelhis silence play any role in his conviction." (/d. at pp. 1120-1121, fins. omitted.) Here, as in Cissna, there was nophysical evidence remotely connecting defendants to Bowser. Accordingly, as in Cissna, the entire case here turned on the credibility ofwitnesses whose versions were at best internally inconsistent in many particulars. Underthe facts of this case, we cannot conclude the jury's discussion of defendants’failure.to testify, which "presumptively establish[ed} prejudicial jury misconduct" (People v. Perez (1992) 4 Cal.App.4th 893, 908-909), did not warrant a new 34 trial because we cannot conclude" ‘upon examining the entire record, that there is no substantial likelihood that [defendants] suffered actual harm [from the misconduct].'" (in re Carpenter, supra, 9 Cal.4th at p. 654.) The People, relying on Leonard and Loker, argue the presumption ofprejudice was rebutted because the jury foreman's declaration averred that therewas a single comment about the defendants’failure to testify and that he immediately reminded the jury it could not considertheir failure to testify. Even assuming the foreman's declaration was credited, the actions below differ markedly from the actions considered in Leonard | and Loker and instead more closely resemble the conductin Cissna and Lopez. For example, in Leonard, the offending conduct waslimited to comments-(made during the penalty phase deliberations) by jurors that they " "would have liked for [defendant] to testify during the penalty phaseso that we could better understand whyhekilled six people, and whether he was truly remorseful . , .' [and] understandthe extent ofhis impairment.' " (Leonard, supra, 40 Cal.4th at p. 1424.) Leonard, concluding this was not prejudicial misconduct, reasoned: | "[T]he purposeofthe rule prohibiting jury discussion of a -defendant's failure to testify is to preventtheJuryfrom drawingadverse inferences against the defendant, in violation of theconstitutionalright notto incriminate oneself. Here, the commentson defendant's failure to testify mentioned indefendant's newtrialmotion merely expressed regret that defendant had not testified,because such testimony might haveassisted the jurors inunderstanding him better. In the words ofthe trial court: 'T think thatwanting to hear defendants testify is natural. Wedo the best We canto deter jurors from speculating and from drawing negativeinferences, but merely referencing that they wish he would havetestified is not the same asPunishing the Defendantfor not: 35 | testifying. It is not the same as drawing negative inferencesfrom theabsence oftestimony.'" (Id. at p. 1425) Similarly, in Loker, the defendant's failure to testify was " ‘mentioned only briefly' " and only in the context ofthe penalty phase (Loker, supta, 44 Cal.4th at p. 748, fn. 27), and Loker (following Leonard) found any presumption ofiprejudice was rebutted _ because the offending conduct wasbrief andrelatively innocuous (Loker, at pp. 748- 749.) | | Here, in contrast, the evidence showed the discussions, in addition to being more extensive than in Leonard or Loker, involved a discussion ofprecisely the type of inference not present in Leonard or Loker: an inference of guilt based on their failure to testify. That distinction was recognized by the Hord court when it considered a claim of misconduct. The declarations from the jurors in Hord stated there was a "comment" orit was "discussed"that the defendant did not testify. (Hord, supra, 15 Cal.App.4th at pp. 721-722.) Hord stated: | "Here, during deliberations there was a comment or comments madeabout defendant's not testifying and a comment regarding defendant's sentence. Although these matters were not to be discussed, the discussion was very different than when a juror performs experiments or brings in new law or facts into, deliberations.. The jury was obviously well aware here that defendant did not testify and equally aware that he would be punished if the ~ jury found him to be guilty. Thus the commentsdid notlinterject any new material into deliberations that was not already known by the Jury from thetrialitself. Transitory comments ofwondérment and curiosity, although misconduct, are normally innocuous,particularly when a commentstands alone without any further discussion. .. ." "When comments go beyond naturalcuriosity and theiricontent suggests inferences from forbidden areas, the chance ofjprejudice increases. For example,if a juror were to say, 'The defendant didn't 36 testify so he is guilty,'. . . the comments go beyond mere curiosityand lean more toward a juror's drawing inappropriate inferencesfromareas whichare off limits. Such comments are morelikely toinfluence that juror and other jurors. "In [the juror's] initial declaration, herecited a Juror's oblique remarkabout a party not saying anything to protect himself. Although thiscomment may have carried a greater potential for prejudice than amere statement ofcuriosity, in light ofthe record beforeus it doesnot require reversal. It does not appear that there was a lengthydiscussion .... The comments did notinvolve extra record materialbut were regarding matters already obviousto the jurors. Moreimportantly, the foreperson admonished his fellow jurors andreminded them they could not consider defendant's not testifyingduring deliberations." (Hord, supra, 15 Cal.App.4th at pp. 127-728.) Here, unlikethe situations in Hord, Leonard and Loker, the discussion about defendants' failure to testify was notlimited to expressions ofregret or curiosity, but instead was expressly linked to the adverse inference of guilt to be drawn from the failure to testify.31 InHora's words, when such comments arise in thejury room,"the chance of prejudice increases . . . [because] the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas whichareoff limits. Such 31 Although the foreman here told the jury not to consider theJact of the defendant'sfailure to testify, as occurred in Loker and Hord (Loker, supra, 44 Cal.4th at p. 748;FHlord, supra, 15 Cal.App.4th at p. 728), neither Loker nor Hord involved a jury that also comments are more likely to influencethatjuror and other jurors.|' (Hord, supra, 15 Cal.App.4th at p. 728.) Weconcludethat, because the evidentiary landscape here was devoid offorensic certainties and therefore turned entirely on close and substantial credibility assessments ofthe veracity ofprosecution witnesses whose testimony was at best in disarray, and a "defendantis entitled to have all 12 jurors makethis [credibility] evaluation without considering whether the defendant took the stand to.deny the accusations [and] [t]he defendant's silence should not be a factor adding to any inferences that the victim is. . telling the truth" (Cissna, supra, 182 Cal.App.4th at p. 1121), the resumption of prejudice from the misconduct has not been rebutted. 7. The Question ofDisposition In our original decision, wereversed the convictions and remanded the case for a new trial based on our conclusion that, on the showings made by the defense and prosecution during the original motion for newtrial, there was admissible evidence upon which to evaluate whether misconduct had occurred (see part ILAL4, ante), the trial court correctly found (and the People on appeal conceded) misconduct had occurred (see part Il.A.5, ante), and our independent reviewoftheentire record convincedus the . presumption ofprejudice from the misconduct had not been rebutted (see part IT.A.6, ante), Our original disposition followed well-established precedent. (See, e.g., Cissna, supra, 182 Cal.App.4th 1105; People v. Castro (1986) 184 Cal.App.3d 849 {juror misconduct]; People v. Brown (1976) 61 Cal.App.3d 476 [juror misconduct]; Jn re Stankewitz (1985) 40 Cal.3d 391 [juror misconduct]; City ofLos Angeles v. Decker 38 (1977) 18 Cal.3d 860; Enyartv. City ofLos Angeles (1999) 76 Cal.App.ath 499 [juror Misconduct); Smoketree-Lake Murray Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724 [juror misconduct]; Clemens y. Regents ofUniversity ofCalifornia (1971) 20 Cal.App.3d 356 [juror misconduct].) However, the People now arguefor the first time (see fh. 3, ante) that we should not have reversed and ordered a new trial. Instead, relying on Perez, Von Villas and Bryant, the People argue we should have conditionally reversed the judgment and remanded the case to the trial court with directions to conduct a new evidentiary hearing ' under Hedgecock and thenrehear the newtrial motion based on the new evidentiary record. To determine whether we should follow Perez, Von Villas and1 Bryant on the facts ofthis case, we examinethosecases, In Perez, after the jury returnedits verdict, the defense movedfor.‘fundingto investigate possible jJury misconduct, asserting defense counsel jearned from a juror that severaljJurors mentionedthe fact the defendarit did not testify during deliberations. However, neither defense counsel nor any juror submitted a declaration or affidavit stating these or similar facts. When ruling on the motion for funding,thetrial court made clear it would not deny the motion fortechnical deficiencies (theabsence of a declaration), but stated it would deny the motion because it believed " ‘this type of . inquiry is ofthe sort thatis precluded;that a juror may not impeach his or her own verdict on the theory that he or other;jurors did not follow the law,'" and therefore no good causefor funding was shown. (Perez, supra, 4 Cal,App.4th at p. 905.) Thetrial court also assumed counsel was secking 4 newtrial, but when defense counsel balked at 39 making an oral motion without the competentevidencean investigation might produce, the trial court assumed "'for the sake of argumentthatall 12 jurors would say that that discussion [regarding appellant's failure to testify at trial] took Place, " and when the defense then madea newtrial motion on that presumedset of facts, the trial court denied that motion. (/d.atp. 906.) This court on appeal noted thatit wal reviewingthetrial court ruling considering the premise on which the trial court denied the motion (that 12 jurors would have signed declarations saying they discussed Perez's failure to testify), and the principal analysis in and holding ofPerez was thatthetrial court erred whenit concluded those declarations would have been inadmissible. (Jd. at pp. 906-909.) Moreover, Perez concludedthat ifthe jurors had discussedthis topic in disregard ofthe court's express instructions, the jury declarations "would have . .(constituted clear evidence of misconduct. While the court has broad discretion to rule ona newtrial. : motion, that discretion was abused here, where the court denied the motion on a factual Scenario presumptively establishing prejudicial jury misconduct."| (/d, at pp. 908-909.) Weare in agreementwith the Portion ofPerez that constitutedits ratio decidendi: juror declarations statingthe jury discussedthe defendant's failureto testify are admissible, constitute "clear evidence ofmisconduct," and "presumptively [establish] prejudicial Jury misconduct." However, Perez then went on to fashion the following dispositional order: "Our conclusionthe court prejudicially erred in denying the newtrialmotion requires that we vacate the judgment and remand for furtherproceedings, Onremand we wish to emphasizethetrial court shouldnot assume 12 jurors actually discussed Perez's failure to testify.Although weappreciatea substantial period oftime has| expired 40 Since the jury in this case was discharged and obtaining declarationsfrom someorall ofthe jurors may bedifficult or impossible, we donotbelieve the court's earlier error relieving defense counselofthisburden should result in any other procedurethan that required bylaw." (Perez, supra, 4 Cal.App.4th atp. 909.) Perez cited nothing to support its conclusionthat such remand was a "procedure -.- required by law." Indeed, absent somepertinent law that makes newtrial motions based on jury misconduct different from other matters that trial courts ‘must decide, we are unable to understand why a trial court would be precluded from ruling on a new. trial motion based on jury misconduct established by presumed or stipulated facts, considering the numerousother proceedings in which such a procedure seemspermissible. (See Von Villas, supra, 11 Cal.App.4th at pp. 263-264 (conc. & dis. opn. ofWoods,J.) [rule that would preclude decision on.a new trial motion based on jury misconduct premised on agreed-uponfacts results in "creating out ofwhole cloth a newruleirreconcilable with stare decisis," citing numerous cases].) Even assuming Perez's newly created dispositional remedy (that appears only to have been given currency by Von Villas and Bryant) was correcton its facts, we would not follow Perez becauseit is the factual antithesis of the present case. In Perez, the court orderedthe new trial motion restarted anew becauseit doubted the court could assume the evidentiary predicate without properdeclarations from jurors, and remanded to place the burden back on the defendant, which the court's error hadrelieved the - defenseof; here, in contrast, the defense has already met its burden because it did file declarations from jurors establishing the evidentiary predicate to the motion. We do not believe Perez can or should be extended to requirethe defense to reinvent the wheel, 41 particularly considering the lengthy passage oftime that has elapsed since theoriginal, properly supported motion was filed. (Cf. People v. Snow (1987) 44 Cal.3d 216, 226-227 {reversing and ordering new trial for error pursuant to People v. Wheeler (1992) 4 Cal.4th 284 and declining the People's suggestion to order limited remand to permit prosecutor to explain reasons. for excluding prospective Jurors because "it would be ‘unrealistic to believe that the prosecutor could nowrecall in greater detail his reasons for the exercise - of the peremptory challenges in issue, or that thetrial judge could assess thosereasons, as required, which would demandthatherecall the circumstancesofthe case’ "]; People v., Williams (2000) 78 Cal.App.4th 1118, 1125; US v, Washington (9th Cir. 1987) 819 F.2d 221, 224 [claim ofjury misconduct; court reversed rather than remanded forfull hearing because "a remandto question jurors more than twoyearsaftertrial is less certain to expose potential prejudice. Memories fade and biases change overtime. .In addition, the reliability ofthe jurors' responses as to whether they were acquainted with the government witnesses may be compromised. bytheir verdict; at this late date a juror might understandably be embarrassed to admit knowing a witness when that knowledge, though not then acknowledged, has now become crucial. The guarantee of an’ impartial jury is far too central to our concept ofa fair trial for determination ofwhether a defendant has beenprejudiced by a partial or biased jury to be dependent upon the vagaries ofsuch a procedure."].)32 32 The defendants also argue the remedy now urged by the People—to orderaHedgecock hearing and then to revisit the new trial motion after the hearing—should beforeclosed underprinciples ofjudicialestoppel, because the prosecution below 42 The second case weare directed to evaluate, Von Villas, relied exclusively on Perez forits dispositional order (see Von Villas, supra, 11 Cal.App.4th at pp. 258-259), and therefore contains the same infirmities we believe infect Perez, Moreover, | Von Villas was decidedin a factual context distinct from the facts here. In Von Villas, - jurors were interviewed by a defense investigator, and a declaration was prepared by the defense for oneofthose jurors allegedly admitting misconduct, but the juror refused to sign it; indeed, the juror deniedto defense counselthat she hadtold the investigator the facts contained in the declaration. (Jd. at pp. 251-252.) However,the parties Stipulated that the investigator would testify the juror had madethe Statements in the unsigned declaration.33 The prosecution, relying on the fact that no admissible evidenceof misconducthad beenintroduced, made no effort to rebut the allegations or to show lack ofprejudice. Thetrial court denied the motion for newtrial, stating there was no evidence the alleged misconduct "'effected [sic] the finding oftheir guilt.’ " (Von Villas, supra, Il Cal.App.4th at p. 253.) The Von Villas court, noting that "a series of errors on all sides . . . brought about an untenable situation for the trial judge who,in turn, committed error by applying an incorrect legal analysis ofthe jury misconduct issue"(id. . at p. 257), held (relying on Perez) the appropriate remedy was tolremandfor a new hearing at whichthetrial court would examine the jurors to test their credibility and determine whether misconducthad occurred. (Von Villas, supra 11 Cal.App.4th at pp. 258-260.) In his concurrence and dissent in Von Villas, Justice Woods—iioting the majority opinion conceded the defendant had produced (by way of stipulation) evidence: demonstrating misconduct andthat misconduct gave rise toa presumption of.prejudice unrebutted by the prosecution's showing (Von Villas, supra, 11 Cal.App.4th at pp. 262- - 263 (conc. & dis. opn. of Woods, J.))expressed consternation that "[i]nstead of | forthrightly reversing the Von Villas judgment and ordering a new frial, as the law requires, the majority shrinks from its duty and without authority, or coherent explanation . 33 In Von Villas, a second juroralso allegedly told the investigator about a differentact of misconduct, butthe juror refused to testify at the new trial hearing. Thepartiesstipulated that the investigator's testimony regarding the second juror's admissions aboutthe different act ofmisconduct would be admissible. (Von Villas, supra, 11 Cal.App.4that pp. 252-253.) 44 simply invokesthe deus ex machina ofordering a newtrial hearing. Concedingthat Von Villas proved oncethat his trial was unfair, the majorityopinion now+—three years later—requires him to proveit again." (Jd at Pp. 261-262.) Justice Woods noted the evidentiary concerns ofthe majority were unwarranted, because the parties had stipulated to the testimony and numerousauthorities supported the use ofstipulated evidence to decide matters (id. at PP. 263-264), and concluded the Majority approach would,if adopted, create a "new tule... that only live testimony counts. Otherwisethere wil] be ‘an untenable situation for thetrial judge’ [(maj. opn., ante, at p. 257)] [and] ‘thetrial judge must be allowed the opportunity to at least test the credibility of [the juror] [(maj. opn., ante at p. 258)]."_ Ua. at p. 263.) | Weagree with Justice Woodsthat mandating a hearingat whichlive testimony fromJurors is solicited whenever any potential evidentiary conflicts exist, and barring the use ofother evidentiary submissions to resolve motions for new trials premised onjury misconduct, is contrary to established precedent.34 Moreover,as with Perez, we would not follow Von Villas because ofthe factual differencesto the present case. In 34 Indeed, if Von Villas is correct, the discretionary decision to hold a Hedgecockhearing will be severely constrained wheneverthere is any declaration from a juroralleging misconduct. Von Villas Supported its rationale for ordering an evidentiaryhearingbynoting Justice Mosk's condemnation of " ‘an incipienttrend, that of losingParties attempting to impeachjury verdicts. We see this in numerous.appeals andpetitions for review based on juror affidavits, . . . [{] 'In mostcasesit is not difficult forcounsel to persuade a jurorto signa law-office-prepared affidavit.' [Quoting JusticeMosk's concurring opinion in Ballard v. Uribe (1986) 41 Cal.3d 364, .575].)"(Von Villas, supra, 11 Cal.App.4th atp. 258.) To the extent the Yon Villas court requiresa trial judge to "test the credibility of [jurors providing evidence of misconduct]"beforeruling on a new trial motion (ibid.), we would expect a proliferation ofHedgecockhearings if Von Villas is followed. 45 |Von Villas, the court ordered the new trial motion started anew because there was no competent evidencefrom thejurors attesting to misconduct; here, in contrast, the defense met its burden with properly attested declarations from jurors establishing the misconduct. We do not believe the defense, having "proved once|that[the] trial was unfair, [should nearly] three years later [be] requirefd] to proveit Leain, " (Von Villas, supra, 11 Cal.App.4th at p. 261-262 (cone. & dis. opn. of Woods,|J.).) The final case we are directed to evaluate, Bryant, supra, 191 Cal.App.4th 1457, again relied exclusively on Perezforits dispositional order (see Bryant, at p. 1471), and contains the samefrailties that undermine Perez. Second, Bryant.seemsto hold that a newtrial motion based on juror misconduct must be supported by|declarations that strictly comply with Code ofCivil Procedure section 2015.5,35 However, Evidence 35 _ Bryant's discussion ofthis question, although contained under the heading"Admissibility ofUnsworn Statements ofJurors" (Bryant, supra, 191 Cal.App.4th atp. 1467), cites numerouscases to support its statement that "California courts haveconsistently held that Properly executedjuror affidavits are required to establish jurymisconduct ofthe type involvedin this case." (Id. at p. 1468, italics added.) However,the cases cited by Bryantfor this proposition do not so hold, For example,in People v.Dykes (2009) 46 Cal.4th 731, the newtrial motion was supported solely by an unswornreport of an investigator's interview with the jury, and the prosecution objected to theevidence. (Id. at pp. 806-807.) Dykes concluded the showing was inadequate becauseit declarations that were allegedly defective under Code ofCivil Procedure section 2015.5.Similarly, in People v: Hayes (1999) 21 Cal.4th 121 1, the court specifically noted theonly evidence offered in support of the juror misconduct claim were the writtenstatements from defense counsel and the defense investigator, neither ofwhich wasexecuted under penalty of perjury, regarding out-of-court statements by a juror; nostatement (sworn or unsworn)ofthe juror herselfwas offered. (id. atpp. 1255-1257.)Hayes said nothing concerningallegedly defective declarations under CodeofCivilProcedure section 2015.5. All of the remaining cases cited by Bryant appear to be of a 46 Code section 1150, subdivision (a), provides only that: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring,either within or without the jury room, ofsuch a character as is likely to have influenced the verdictiImproperly. No evidenceis admissible to show the effect of such statement, conduct, condition, or. event upon a juror either in influencing him to assent to or dissent from the verdictor concerning the mental Processes by which it was determined.” (Italics added.) Contrary to Bryant's holding, nothing in that section (or in the casescited by Bryant, see fn. 35, ante) limits "otherwise admissible evidence"to declarations strictly compliant with Code of Civil Procedure section 2015.5, Third, Bryant seems to suggeststrict compliance with Code of Civil Procedure section 2015.5 is jurisdictional and cannot be waived, but nothing i n Evidence Codesection 1150 suggests a court may not admit technically deficient declarations when no objection raising such technical deficiencies is interposed below, and the vast weight ofthe law in analogouscontexts is to the contrary. (See fn, 22, ante.) | Moreover, Bryant's decision to invokePerez and remand for a new evidentiary hearing was decidedin a factual context distinct from the facts here. In Bryant, the court concluded "it waserror to reach the merits ofthe jury misconductijissue without the sworn affidavits required by law" (Bryant, supra, 191 Cal_App.4th at p. 1471), but neither side in Bryant had presenteddeclarations signed underpenalty ofperjury. (/d. at p. 1466.) similar ilk, While these cases support the proposition that unsworn Statements (or swornStatements relating inadmissible hearsay statements ofJurors) cannot be employed toattack a verdict, that case law has no relevance to Bryant's holding that declarations fromjurors mustprecisely comply with CodeofCivil Procedure section 2015.5 to provide therequisite evidence for a newtrial motion. 47 Bryant observed "[t]he issues ofmisconduct assertedin this case are serious and if Proven by sworn evidence, give rise to a presumptionofprejudice"(id. at p. 1471, italics added), but decided that "[bJecause the parties waived any objection to the unsworn statements at the suggestion of thetrial court, the appropriate remedyis to return the matter to the trial court for a full and complete hearing with competent evidence. " dd. at p. 1471.) As in Bryant, the issues ofmisconduct asserted below wereserious, but here (unlike Bryant) the misconduct was "proven by sworn evidence, giv[ing] rise toa presumptionofprejudice." (Ibid.) Accordingly,it is unnecessary to invoke the remedy employed by Bryant becausethe defense in this case, having "proved oncethat [the] trial was unfair, [should nearly] three years later [not be] require[d] to proveit again." (Von Villas, supra, 11 Cal.App.4th at pp. 261-262 (dis. opn. of Woods,J.).) The foregoing analysis convincesus that Perez, Von Villas andBryantrest on dicta and questionable departures from stare decisis, and should not be followed. The foregoing analysis also convincesusthat, even assuming those cases were correctly decided on their uniquefacts, the distinction betweenthe decisivefacts in those cases fromthose ofthe present case convincesusthat Perez, Von Villas and Bryant would not control here. Accordingly, we adhereto our original decision, reverse the convictions and remandthe causefor a newtrial because the admissible evidence demonstrated that . misconduct occurred and our independentreview ofthe entire record convinces us the presumption ofprejudice from the misconducthas not been rebutted. 48 B. The Sufficiency of the Evidence Claims Defendants contend the evidence was insufficient to support any ofthe convictions and, alternatively the evidence wasinsufficient to support the torture convictions. Legal Standards When wereview a challenge to the sufficiency ofthe evidence to support a verdict, we review all ofthe evidence most favorably to the verdict. Wedraw all reasonable inferences in Support ofthe verdict, but do not makecredibility Jadgments or reweigh the evidence. The question we mustdecideis whether therejis sufficient, substantial evidence from which a reasonable }Jury could find the charge proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) " ‘Circumstantial evidence maybesufficient to connect a defendantwith the crime and to provehis guilt beyond a reasonable doubt.'" (Peoplev. Bloyd (1987) 43 Cal.3d 333, 347.) "' "Althoughit is the duty of the jury to acquit a defendantifit finds that circumstantial evidence is susceptible oftwo interpretations, one ofwhich Suggests guilt andthe other innocence [citations], it is the jury, not the appellate court[,) which must be convinced ofthe defendant's guilt beyond a reasonable doubt"'" (Peoplev. Rodriguez (1999) 20 Cal.4th 1, 11), and we may neither reweigh the evidence norreevaluate a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129-disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151 .) Wherethe circumstances reasonably justify thetrier offact's findings, the reviewing court's opinion thatthe 49 circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 793.) The Global Argument Defendants first arguethatall of the convictions lack evidentiary support because the evidence was too ‘speculative and rested on patently unbelievable testimony. Although there were numerous contradictions among the witnesses,a trier of fact could have foundrational explanationsfor resolving the discrepancies, including the passage of time, the traumatic impact ofthe events, or the fact the witnesses’ ability to perceive and recall had been hamperedby their drug-induced fog. We cannot'conclude the evidence was so inherently improbablethatit could:not support a conviction. Weare not persuaded the case wasso speculativethat there wasinsufficient evidence to support the convictions, Defendants argue, for example, thathow and by, whom Bowserwasplaced in the canal was necessarily speculative, However,if the trier of fact accepted that defendants (after threatening they would take Bowser and Martin out to the desert a "make {them] dig [their] own hole") in fact took Bowser with them around 6:00 a.m., and that her body was discovered around 3:00 a.m. the next morning,the trier of fact could infer that they followed through on their threatto kill Bowser,particularly if the jury further credited Vereen's testimony that Gaines told Vereen the next day that the "girl is in a canal with a bag over her head barely breathing." Wecannot concludeas a matter oflaw that the evidenceis insufficient to support the convictions. 30 The Torture Argument Defendants alternatively argue that, even assuming the evidence supported the kidnapping and murder charges, there was no substantial evidence Supportingthe torture convictions because there was no evidence any ‘of the victims suffered the requisite level ofbodily injury required for a torture count undersection 206. "[T]orture has two elements: (1) a person inflicted great bodily injury upon the person ofanother, and (2) the person inflicting the injury didSo with specific intent to cause cruel and extreme pain and suffering for the purpose ofrevenge, extortion, persuasion, or for any sadistic purpose." (People v. Baker (2002) 98 Cal.App.4th 1217, 1223.) Defendants do not contestthe sufficiency of the evidence on the intent element, but instead arguethere was no evidence any ofthe victims suffered the requisite level of bodilyanjury. However,as this court reaffirmedin People v, Pre (2004) 117 Cal-App.4th 413, 0, "[sJection 206 does not require permanent, disabling, or disfiguring injuries;: 9 lection 206 only requires "great bodily injury as definedin Section 12022.TMoo, a=AbrSions, lacerations and bruising can constitute great bodily injury."'" As to Bowser, SoGtber observed her body had bruising present. Asto Martin, shetestified defendants burned her forehead with heated utensils. As to Hughes, hetestified he was struck in the head with a gun butt with sufficient force that hestill had a scar, that defendants also used a chisel and the flat end ofnails pounded with a hammerto inflict such pain that he got dizzy and almost blacked out, and that he was "covered in blood”iin the aftermath oftheir torture. We cannot conclude as a matter of law that a jury could not 51 have foundthe level of physical harm inflicted by defendants satisfied.the requirements for conviction undersection 206. _ DISPOSITION The convictions are reversed and the matter is remanded for a newtrial. McDONALD,J. I CONCUR: AARON,J. { CONCUR IN THE RESULT: NARES,Acting P. J.. OL Y. t o u t G2 H d 9- BH HE IM wu s 52 am % e DECLARATIONOF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Floyd Lavender, et al. No.S20413 COA# D057655 & D057686 I declare: | Tam employedin the Office ofthe Attorney General, whichis the office of a memberoftheCalifornia State Bar, at which member's direction this service is made. I am 18 years of age orolder and nota party to this matter. Iam familiar with the businesspractice at the Office of theAttorney Generalfor collection and processing of correspondence for mailing with the UnitedStates Postal Service. In accordance withthat practice, correspondence placed in the internalmail collection system at the Office ofthe Attorney General is deposited with the United StatesPostal Service that same day in the ordinary courseof business. On April 12, 2013, I served the attached PETITION FOR REVIEW by placing a true copythereof enclosed in a sealed envelope with postagethereon fully prepaid, in the internal mailcollection system at the Office ofthe Attorney General at 110 WestA Street, Suite 1100, P.O.Box 85266, San Diego, CA 921 86-5266, addressed as follows: Rebecca P. Jones Kristine S. Kussman Attorney at Law Court Executive Officer 3549 CaminoDel Rio South, Suite D Imperial County Superior Court San Diego, CA 92108 939 W. Main Street Attorney for Appellant Gaines[2 copies] EI Centro, CA 92243 For delivery to: Honorable DonalB. DonnellyKimberly J. Grove Attorney at Law California Court of Appeal P.O. Box 425 , Clerk of the Court Ligonier, PA 15658 Fourth Appellate District, Division OneAttorney for Appellant Lavender[2 copies] 730 B Street, Suite 300 San Diego, CA 92101 Gilbert G. Otero District Attorney 940 West Main Street, Suite 102 El Centro, CA 92243 and I furthermore declare,I electronically served a copy of the above document from Office ofthe Attorney General's electronic notification address ADIEServiceC@doj.ca.gov on April 12,2013 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal(@Madi-sandiego.com. I declare under penalty of perjury underthe laws ofthe State of California the foregoingis trueand correctand that this declaration was executed on April 12, 2013, at San Diego, California sh “ee oebet onCarole McGraw Laced€.. LLEVACHADeclarant Signature$D2010702150 80755527.doc