PEOPLE v. LAVENDER

Respondent’s Reply Brief on the Merits

Cal.November 18, 2013

In the Supreme Court of the State of California CALIFORNIA, Vv. THE PEOPLE OF THE STATE OF FLOYD LAVENDER,et al., Case No. $209975 SUPREME COURT FILED NOV 18 2013 Plaintiff and Respondent, Defendant and Appellant. Fourth Appellate District, Division One, Case Nos. D057655; D057686 Deputy Imperial County Superior Court, Case Nos. JCF21566; JCF21567 RESPONDENT'S REPLY BRIEF ON THE MERITS Frank A. McGuire Clerk Honorable Donal Donnelly, Judge 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 Supervising 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 Introduction......... A. Conclusion.......... TABLE OF CONTENTS seceeessseesssuesessstsecesensssssssssissssssassesnisststsiseassassesscssssseeeccessee The conflicting juror declarations create a disputed issue of material fact that can only be resolved by remandingthe mattertothetrial court for a Hedgecock hearing......ccccccssescsssccsssessees l No fact is more material than whatthe jurors actually said, and thetrial court’s inquiry would not be barred by Evidence Code section 1150............. 5 Krouse counsels a remandfor an evidentiary hearing wherejuror declarations are inconclusive regardingthe nature and extent of any open discussion or agreement amongthe jurors pertaining to a prohibited topic ......cecssssesssesee 6 Von Villas, Bryant and Perez stand for the proposition that a remand for an evidentiary hearing is appropriate wheneverthe validity of a conviction depends solely on an unresolved or improperly resolved factualissue, in accordance with this Court’s opinion inMOOe.o.ecccccccccccsosececsesse. 9 Appellants fail to distinguish Moore and Johnson from their case; therefore, this Court should reject their forfeiture arguments.........c.c00000. 12 Because respondenthas not madeinconsistent arguments, this Court should also decline to apply the principle ofjudicial estoppel...........ccsecs-.. 15 Remanding the matter for an evidentiary hearing will not prejudice appellants...........ccccccee 15 Prejudice cannot be assessed until thetrial court has resolved the evidentiary conflicts and made its findings offact in the first instance; thus, this court should reject the remaining claims made by appellants...weeesesesaseaseceeseeeseneees 17 seseeseevensenetssessesesetsecssenssseesosessassssscsesssssssessescecesesessesesenscs 20 TABLE OF AUTHORITIES Page CASES Aguilar v. Lerner (2004) 32 Cal.4th 974ooccesescesseeeeeesneresseesnenerseeseessseeeeeesenens 15 Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]... ececeseeesetees 14 Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]...eee 19 In re Carpenter (1995) 9 Cal.4th 634 oeeseesccssseessssssseeessnnesssnsnvessesssnesesssnesses 1, 5, 18, 19 in re Stankewitz (1985) 40 Cal.3d 390essessseecsesessesseresssessssesseeseceesesseeneseeneneees 6 Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129]oe14 Krouse v. Graham | (1977) 19 Cal.3d 59 weesseseaesseceaeeteneneacesecessaeeceteetaseeserees 6, 7, 8, 9 People v. Bryant (2011) 191-CalApp.4th 1457owsaeseneeseensesesaeseeseeeesaeseores 9,11 People v. Hedgecock (1990) 51 Cal.3d 395occesses seessesesssessesesseeseeseseeeeeteenes passim People v. Johnson | (2006) 38 Cal.4th 1096...tesssens snerssssseeesssenseesseeeswae assim People v. Leonard (2007) 40 Cal.4th 1370...eceesesererenesesssenssesersseeseesseseeees 3, 4, 8, 13 People v. Loker (2008) 44 Cal.4th 69] occseseeneeseareresesstsseennsaeencensetersesees 3, 4, 8, 13 il People v. Mattson (1990) 50 Cal.3d 826 u..ccccccescscescsssneesssessessusssusesssessuecervccaesutecesaecseteeee 16 People v. Moore (2006) 39 Cal4th 168 oo.ccsssesseeserensesssesescssseseseseeseteeeenses passim People v..Nessler (1997) 16 Cal4th 561] oocsessssssesesecsesesssssssesssrssscescnesssesnieees 5, 6, 8 People v. Perez (1992) 4 CalApp.4thocccceseccscscessssessseseesaesseteeneneaees 9,11, 12, 16 People v. Sanders (2003) 31 Cal.4th 318ooeccsssssssesssscsssensescssscsssssscsssecsesevseaseseaes 10, 11 People v. Von Villas (1992) 11 CalApp.4thicccscsscccesessssecssscscssevessesestssssectetsseeeten 9,11 STATUTES Evid. Code § 1150...ceeececeeneeneessseeenaceeessecuueeccsessseecessessceeeceresessesssesesssesss 6 ili INTRODUCTION After examining conflicting declarations concerning the nature and scope of the misconduct that was committed by one or morejurorsinthis case, the Court of Appeal choseto credit the defense declarations, reverse the judgment, and remand the matter for a newtrial instead of an evidentiary hearing. By finding a substantial likelihood that one or more jurors were actually biased against appellants in the absenceofa full - hearing, the Court ofAppeal presumed greater misconduct than the evidence showed(see In re Carpenter (1995) 9 Cal.4th 634, 657 (Carpenter)) and skippedan essential step in the inquiry. It also begged the central question that is presented by this record. Thoughit is true that “even one improperly influenced juror is enough to overturn the verdict,” this Court hasalso held that “the exact nature of the misconductis highly relevantto the initial determination of bias[.]” (/bid.) Thatinitial determination is properly madeby thetrial court, which is the only court thatis in a position to take testimony from the jurors, assess their credibility, and makethe crucial historical findings of fact in the first instance. Accordingly, the Court of Appeal erred when it declined to remand the matter so that a limited hearing could be held under People v. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock). - A. The Conflicting Juror Declarations Create A Disputed Issue Of Material Fact That Can Only Be Resolved By Remanding The Matter To The Trial Court For A Hedgecock Hearing Appellant Gaines concedes,“if the question presented on appeal requiresa credibility determination, a remand hearing would be appropriate,” but in the same breath he makesthe claim that his case “does not present any credibility issues.” (GABMatp. 20.) Appellant Lavender similarly asserts that, “There simply was noconflict in the evidence asto whetherthe jurors discussed adverse inferences to be drawn from the defendants’ failure to testify.” (LABMatp. 34.) Appellants’ contentions are belied by the record in this case. In Hedgecock, Jurors Bohensky and Saxton-Calderwood submitted declarations wherein they attributed several remarksto their bailiffs, Allen Burroughs and Holly Murlin. Bohensky averred Burroughshadstated “that sequestration was expensive, that the jurors did not ‘have to be treated as nice as this,’ and that they should reach a quick verdict.” Bohensky also alleged that Burroughstold him to “take notes ‘on what any unreasonable - jurors’ were saying.” Bohensky further alleged that both bailiffs talked to him “about their experiences with other juries and their ability to tell how | the jurors would ultimately vote,” and offered their opinions regarding the relative difficulties that other jurors on the panel would have in reaching a verdict. Finally, Saxton-Calderwood claimed she had overheard Burroughs having a.discussion with another juror about “who was holding up deliberations.” (/d. at pp. 411-412.) Burroughs and Murlin submitted counter-affidavits which generally denied that the purported conversations took place. (/d. at pp. 412-413.) In concluding thatthe trial court had the discretion to conduct an evidentiary hearing in which jurors could be compelledto testify, this Court noted, “The. affidavits presented material factual conflicts; cross- examination could haveassisted thetrial court in resolving the disputed evidence.” Significantly, after further noting that, “The alleged misconduct was ofa serious nature,”this Court observed, “//Bailiff Burroughs did make theremarks that Jurors Bohensky and Saxton-Calderwoodattributed to him, those remarks were presumptively prejudicial [Citation] and of a character ‘likely to have influenced the verdict improperly’ [Citations].” (Hedgecock, supra, 5 1 Cal.3d at p. 419 [emphasis added].) This Court specificallydeclined to do what the Court of Appeal did in this case, which was to assumethat the declarations presented by the defense were accurate and credible. This Court took that course becauseit recognized that, “when compared to the use ofaffidavits, 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.) Seeking to avoid the conclusion dictated by this Court’s opinionin Hedgecock, appellants assert that the evidencein this case is undisputed. (GABMatp. 18 [““Here, the prosecution failed to file any affidavits contradicting the defense claim that at least one juror who discussed the defendants’ failure to testify specifically discussed tying that failure to - inferencesof guilt”]; (LABMat p. 33 [“The Court ofAppeal’s evaluation of the issue was based-upon uncontroverted portions ofthe declarations submitted by the defense establishing that one or more jurors had discussed the defendants’ failure to testify and the adverse inferences to be drawn from this fact”]. They are incorrect. All of the jurors who provided declarations to the prosecution said only that one or more jurors had “mentioned”the fact that appellants did not testify. Those declarations do notrevealthat any juror expressly linked an inference ofguilt to that fact. (4 GCT 899-905.) The only point of agreementin the declarations submitted by the prosecution and the defense wasthat appellants’ decision not to take the stand was mentioned. In People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard), and People v. Loker (2008) 44 Cal.4th 691, 749 (Loker), this Court held that thoughit is misconduct for a juror to commenton a defendant’s failureto testify, it is not prejudicial if the jury thas declined to draw any adverse inferences from thatfact. It is no answerto say that the defense declarations establish that the jurors committed prejudicial misconduct. (GABM 18-19; LABM atp. 33.) If that were the case, this Court had all of the information it needed to resolve the evidentiary dispute in Hedgecock, since the defense declarations attributed statements to Bailiff Burroughsthat not only constituted misconduct but werealso “likely to have influenced the verdict improperly.” (Hedgecock, supra, 51 Cal.3d at p. 419.) Had this Court determined the evidentiary. conflict could be resolved, and the potential prejudice assessed based on an examination of the defense declarations alone, there was no need to remand the matter. Indeed, it would have been an exercise in futility, because a reversal and a newtrial would have been a foregone conclusion in light of the statements the defense declarations contained. In declining to assumethat Bailiff Burroughs madethe alleged remarks (Hedgecock, supra, 51 Cal.3d at p. 419), this Court impliedly — found that the contradictory nature of those declarations created a credibility dispute that could only be resolved by thetrial court, and thatit could not make a determination regarding prejudice until the necessary factual findings had been made. . . Here, only the declarations presented by the defense from Juror No. 4 (4 GCT 851 [“Wediscussed the fact that if the defendant[s] were innocent then they should’ vetestified”]) and from Juror No. 10 (4 GCT 853 [“There was no testimony from the defendants and wediscussedthis fact during the deliberations and openly talked about whythey did nottestify and that this fact made them appearguilty to us’”’]) provided evidence that one or more membersofthe jury may haveexplicitly linked the fact that appellants did not testify to a prohibited inference of their guilt. “If [any jurors] did make the remarksthat Jurors [No. 4] and [No. 10] attributed to [them], those remarks were presumptively prejudicial ... and of a character‘likely to have influenced the verdict improperly[.]’ ” (Hedgecock, supra, 51 Cal.3d at p. 419.) Ifthe juror or jurors in question merely mentioned the fact that appellants did not testify, were immediately admonished, and agreed to follow the court’s instructions, then there was no prejudice. (Leonard, supra, 40 Cal.4th at p. 1425; Loker, supra, 44 Cal.4th at p. 749.) Therefore, what the jurors actually said is the issue upon which the proper disposition of this case turns. They either verbalized a belief that appellants were guilty becausethey failedto testify, or they did not. In light of the fact that the declarations submitted by the prosecution and the defense were in complete disagreementonthatpoint, including the declarations that were submitted by both sides from the same two jurors (3 GCT 849; 4 GCT 851, 899, 901), a reviewing court will not be in a position to makeits assessment of prejudice and conclude whether there was a substantial likelihood that one or more jurors were actually biased against appellants until the trial court has resolved that disputedissue offact by making the necessary credibility determinations. (People v. Nessler (1997) 16 Cal.4th 561, 583 (Nessler) [“We lookto the entire record to resolvethis issue, keeping in mindthatthetrial court has found the relevanthistorical facts and resolved the conflicting evidence, but that the question of prejudice is for our independent determination”]; Carpenter, supra, 9 Cal.4th at p. 659 [“Because there is now a full factual record regarding the misconduct with all conflicts in the evidence resolved and with the relevant historical facts found, little would be gained by a remand”].) B. No Fact IsMore Material Than What The Jurors Actually Said, And The Trial Court’s Inquiry Would Not Be Barred By Evidence Code Section 1150 © Appellant Lavenderalso asserts a remand for an evidentiary hearing would “‘serve no legitimate purpose in this case,” either because “the only factual disputes mentioned by respondent are immaterial to resolution of the question of whether prejudicial jury misconduct occurred” (LABMat p. 35), or because “ ‘whether the juror or jurors who mentioned appellants’ ~ failure to testify drew the prohibited inference at all, by expressly linking appellants’ silence to the question oftheir guilt or innocence,’ ”is “not subject.to proofat an evidentiary hearing in light of the prohibition of inquiry into the thought processes ofjurors.” (LABMatp. 37.) Appellant Gaines also makesthe latter contention, but he confines it to the question of what the jurors “thought aboutthe failure to testify” or whether they “actually consideredthe failure to testify as evidence of guilt.” (GABMat pp. 19, 35.) . Aspreviously discussed, whether one or more jurors actually made an explicit link between the fact that appellants did not testify and the inference they were therefore guilty is the central dispute presented by the evidence. For purposes of determining the proper remedy, no fact could be more material. And while evidence implicating the subjective reasoning processesof any particular juror would be prohibited by Evidence Code section 1150 (See, e.g., Nessler, supra, 16 Cal.4th at p. 584), evidence pertaining to any explicit remarks the jurors might have made touching on appellants’ failure to testify would be admissible, because they would be open to the senses and thus subject to corroboration. (Hedgecock, supra, 51 Cal.3d at p. 419; in re Stankewitz (1985) 40 Cal.3d 391, 398.) C. Krouse Counsels A Remand For An Evidentiary Hearing Where Juror Declarations Are Inconclusive RegardingThe Nature And Extent Of Any Open Discussion Or Agreement Among The Jurors Pertaining To A Prohibited Topic Appellant Gainesalso urges this Court to reject respondent’s interpretation ofKrouse v. Graham (1977) 19 Cal.3d 59 (Krouse), not on the merits, but because the argument that respondent made based upon it is “beyond the scopeof the question presented,” forfeited “becauseit has _ never been raised before,” and “barred because respondenthas previously concededthe record established misconduct.” (GABMat pp. 37-38.) Appellant Gaines adds that, “To the extent respondentis arguing that any of the juror statements actually considered bythetrial court are not ‘overt acts’ rather than evidence of the jurors’ subjective mental processes,it forfeited that argumentby failing to makeit in the Court of Appeal.” (GABMatp.38.) Appellant Lavenderalso declares Krouse “inapposite” on groundsthat“in the present case the declarations were clearly describing statements made by the jurors during deliberations, in Krouse it was unclear whether the declarations were describing what the jurors said or what the jurors thought.” (LABMatp. 38.) Far from being “beyond the scope of the question presented,” this Court’s opinion in Krouse illustrates exactly why the Court of Appeal erred by reaching the question of prejudice before the precise nature of the misconduct could be determined through an evidentiary hearing, and by concluding there wasa substantial likelihood of actual bias based solely on an examination of conflicting declarations. This Court in Krouse found the juror declarations were “inconclusive” and “could be construed as conduct reflecting only the mental processes ofthe declarant jurors, for they assert that certain unnamed jurors ‘commented’on the subject of attorneys’ fees, and that the jurors ‘considered’ the matter in determiningthe‘final compromise award.’ ” (Krouse, supra, 19 Cal.3d at p. 81.) This Court in Krouse concluded that the declarations before it were “inconclusive regarding the nature and extent of any open discussion or agreement betweenthe jurors regarding the subject of attorney’s fees,” but that “taken together” they raised “an issue of sufficient momentthat, in fairness, the declarations should have been admitted and considered by the court in its ruling upon defendant’s motion for newtrial.” (/d. at pp. 81-82.) Notably, this Court in Krouse held, “Rather than set aside the Mladinov verdict, thereby necessitating a new trial, however,it is appropriate simply to vacate the order denying newtrial andto direct the trial court to admit the declarations and, weighing them in conjunction with all other relevant matters, to reconsider the motion.” (Krouse, supra, 19 Cal.3d at p. 82.) Here, the prosecution’s declarations indicated appellants’ failure to take the stand was merely “mentioned” (4 GCT 899, 901, 903) or not mentionedat all. (4 GCT 905.) Whileitis true that those portions of the declarations found admissible by the Court of Appeal indicate the jurors “discussed”the prohibited topic (3 GCT 849; 4 GCT 851, 853), that does not alter the fact that the declarations in this case, like the declarations in Krouse, were “inconclusive regarding the nature and extent of any open discussion or agreement betweenthe jurors regarding the subject of” appellants’ decision not to take the stand and whether they would follow the court’s instructions. (Krouse, supra, 19 Cal.3d at p. 81.) While appellant Gaines is correct (GABM atpp. 37-38) that respondent acknowledged one or more jurors committed misconduct by discussing appellants’ failure to testify (Respondent’s Brief at p. 15), respondent did not concedethat appellants were “prejudiced by the juror comments on [their] failure to testify” (Leonard, supra, 40 Cal.4th at p. 1425), that any. discussion that took place “played [a] role” in the jury’s deliberations (Loker, supra, 44 Cal.4th at p. 749), or that any memberofthe jury rendered a decision on any basis other than a consideration of the evidencepresented attrial. (Nessler, supra, 16 Cal.4th at p. 589.) Those determinations muststill be made bythe finder of fact, followingan evidentiary hearing at which thetrial court may weighthe credibility of the declarants and determine the nature and extent of those discussions. It is then, andonly then, that an appellate court will be in a position to conduct an independent review concerning the question of prejudice. (Krouse, supra, 19 Cal.3d at p. 82; Nessler, supra, 16 Cal.4th at p. 583.) | Appellant Gaines’s contention that this argument is forfeited because it was “never raised before”is inaccurate. Respondentraised that very issue in the Petition for Rehearing that it filed in the Court of Appeal. (Pet. for Rhrg.at pp. 1-5.) In light of the inconclusive nature ofthose conflicting declarations, this Court should also find it appropriate that the matter be remandedfor an evidentiary hearing under Hedgecock, after whichthetrial court may reconsiderits ruling on the newtrial motion. (Krouse, supra, 19 ~ Cal.3d at pp. 81-82.) D. Von Villas, Bryant and Perez Stand For TheProposition That A RemandFor An Evidentiary Hearing Is _ Appropriate Whenever The Validity OfA Conviction DependsSolely On An Unresolved Or Improperly Resolved FactualIssue, In Accordance With This Court’s Opinion In Moore Appellant Gainesalso seeks to distinguish the three cases cited by this Court in its original Ordertransferring the matter to the Court of Appeal for reconsiderationofits decision. He asserts that in contrast to the circumstances presented by People v. Von Villas (1992) 11 Cal.App.4th at p. 175 (Yon Villas), here “the defense submitted declarations signed under penalty of perjury stating that three jurors heard discussions linking the defendants’failure to testify to evidence oftheir guilt, as well as a sworn declaration from a defense investigator impeachinglater statements from twoofthe jurors whotried to explain portions of their defense declarations.” (GABMatp. 22.) Appellant Gaines contendshis case is “different” from People v. Bryant (2011) 191 Cal.App.4th 1457 (Bryant), because “The defense here submitted sworn, admissible declarations establishing misconduct occurred and that the prejudice was not rebutted.” (GABM atp. 23.) Finally, appellant Gaines contrasts his case with People v. Perez (1992) 4 Cal.App.4th at p. 893 (Perez), on groundsthatthere, “the appellate court was faced with serious jury misconductallegations unsupported by sworn affidavits and addressed throughanentirely deficient trial court hearing and without any admissible evidence beforeit.” (GABM at p. 24.) | From those three cases, appellant Gaines distills the rule that remand for an evidentiary hearing is only warranted undercircumstances where “judicial error has thwarted the fact-finding process.” (GABMatpp. 24- 25.) Appellant Gaines concludes that his case escapes application of that rule because, “althoughthetrial court incorrectly excluded from its consideration relevant portions of several declarations, it understoodits role as fact-finder, it understood the law ofjuror misconduct, and it agreed with the prosecutor that the declarations before it did not present any material disputed facts.” (GABM atp. 25.) Appellant Gaines fails to explain how it is that the judicial error in this case did not also thwart the fact-finding process. Therule that appellant Gaines seeks to fashion wasstated more broadly by this Court in People v. Moore (2006) 39 Cal.4th 168 (Moore). Therethe trial court had denied the defendant’s suppression motion, based on its determination that at the time the defendant was subjectto a valid | ~ parole search condition. The defendant’s case proceededto trial and he was convicted. During the pendency of the defendant’s appeal, this Court decided People v. Sanders (2003) 31 Cal.4th 318(Sanders), which held that police officers must know of a defendant’s parole search condition to justify a warrantless search under that exception. The Court of Appeal reversed after noting that the prosecution did not present any evidence during the suppression hearing that police officers knew the defendant was on parole when they searched him,and that it was unable to determine from the facts presented at the hearing whether the defendant had been searched pursuantto a lawfularrest. (Id. at p. 172.) This Court held that the Court of Appeal erred by reversing the matter outright instead of remanding the matter for a further hearing. (/d. at p. 174.) In reaching its conclusion this Court observed, “Because the suppression hearing occurred before we decided [Sanders], the trial court and the parties acted with the understanding that they were not required to present evidence whetherthe officers knew of defendant’s parole search 10 condition. In that situation, where the parties understandably did not present arguments and evidence relating to search issues, a reviewing court should remandtothe trial court to consider anyalternate grounds foror against suppression.” (/bid.) This Court further noted that, “Based on the trial court’s ruling, the prosecution did not present evidence ofthe officers’ knowledge regarding defendant’s search condition, although the prosecution’s opposition to the motion and the police report suggested at least one ofthe officers knew about the condition.”(/d. at p. 176.) In reachingits conclusion this Court observed: “[W]henthevalidity of a conviction dependssolely on an unresolved or improperly resolved factual issue whichis distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgmenthearing andif at such hearing the issue is resolved in favor of the People, the conviction may stand.” [Citation] In other words, “when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may notvitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, andtake further proceedings giving effect to the determination thus made.” (Moore, supra, 39 Cal.4th at pp. 176-177.) Thus, a remandis appropriate whenever “the validity of a conviction dependssolely on an unresolved or improperly resolvedfactual issue.” (Id. at p. 176.) Von Villas, Bryant and Perez are in accord with this same principle, (Von Villas, supra, 11 Cal.App.4".at p. 258 [“‘The concern then, is whether [defendant]’s judgment of conviction should be reversed in toto on this record, or whether the judgment should be vacated and the matter remandedto thetrial judge with instructionsto allow examination of the jurors themselves as to what really occurred during deliberations that might have constituted juror misconduct”); Bryant, supra, 191 Cal.App.4” at p. 1471[“It is difficult to imagine how the presumption ofprejudice could be 11 rebutted in the absenceofevidence as to what definition of reasonable doubt was accessed by the jury during deliberations”]; Perez, supra, 4 Cal.App.4" at p. 909 [On remand we wish to emphasizethetrial court should not assume 12 jurors actually discussed [defendant]’s failure to testify”’].) E. Appellants Fail To Distinguish Moore And Johnson From Their Case; Therefore, ThisCourt Should Reject Their Forfeiture Arguments Appellant Gaines acknowledgesthat, “The fact-finding processin the trial court may be inappropriately skewed whenthe relevant law changes after the trial court rules and new or different facts becomerelevantto the ruling at hand.” (GABMatp. 26.) However, he maintains that unlike the circumstancespresented in Moore, no unanticipated intervening change in ‘the law occurred which might have “prevented the prosecution from presentingall the evidence it could gatherin the trial court in support ofits position.” (GABMatpp. 26-27.) Appellant Lavenderalso alleges that “whatever contradictions exist in the declarations were apparentat the time the new trial motion was heard,” the prosecutor was afforded a fair opportunity to rebut the presumption of prejudice during the original prima facie hearing, and thus the issue respondent seeks to address “in a belated evidentiary hearing” is the same onethat. wasoriginally before the trial court. (LABMatp. 39.) In this case, the Court of Appeal’s intervening ruling hadthe effect of altering both the evidentiary mix andthe legal analysis. Given those | portions of the declarations that the trial court had previously found to be admissible, there was no dispute regarding what the jurors had said during deliberations. At most one or more jurors had mentionedthe fact that appellants had nottestified, the foreman immediately admonished them that they were not to consider that fact, and that was the end of the matter. 12 Though what occurred was misconduct, it would not have been prejudicial underthis Court’s holdings in Leonard and Loker. Based on the evidence that was actually before the parties during the newtrial motion, there was no reason for the prosecutor to argue that a Hedgecock hearing should have been held. Norwasthere any reason for respondent to make that argumentinits briefing for the Court of Appeal. The Court ofAppeal’s subsequent opinion had the effect of admitting the previously excluded portionsofthe juror declarations. Thus,its ruling created an unresolved conflict regarding the nature and extentofthe jurors’ misconduct where nonehad existed before. Sincethe trial court did not consider those portions of the declarations, it did not have the opportunity to resolve a factual dispute whichis central to the validity of the convictions in this case. In Moore, the defendantalso pointed out that he had made“several claims challenging the warrantless search in his suppression motion,” and that since “the prosecution chose to argue only the parole search justification below . . . it was not he ‘wholimited the scope ofthe suppression hearing, it was the People, andit is the People who must bear the consequences of a woefully deficient presentation.’ ” (Moore, supra, 39 Cal.4th at p. 177.) This Court disagreed, adding, “Thetrial court denied defendant’s suppression motion based on defendant’s parole search condition, rendering any additional argumentfrom the prosecution unnecessary.” (Ibid.) | Like the defendant in Moore, appellant Gaines argues that respondent’s contention an evidentiary hearing is the appropriate remedy underthe. circumstances presented here is forfeited because “the prosecution did notjust acquiesce in the trial court’s decision not to hold a hearing — it affirmatively opposed a hearing.” (GABMat p. 29.) Seeking to distinguish this Court’s opinion in People v. Johnson (2006) 38 Cal.4th 13 1096 (Johnson), appellant Lavenderasserts that there, “The question to be addressed on remand.. . had never been addressed in thetrial court[,]” whereasin the instant case, “the prosecution was afforded every opportunity to present evidence relating to the question of prejudice at the time the motion was heard[.]” (LABMat p. 40.) This Court should reject appellants’ contentions for the same reason it rejected the defendant’s claim in Moore. Sincethe trial court denied appellants’ motion to hold a Hedgecock hearing, there was no reason for the prosecutor to argue that it should hold a hearing ratherthan grant appellants a newtrial. The posture of this case does not differ in the least from Johnson, where this Court remanded the matter for a further hearing following the Supreme Court’s opinion in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129], which held that the trial court had applied anerroneousstandard whenit determined that the defendant had failed to establish a prima facie case under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct, 1712, 90 L.Ed.2d 69]. (Johnson, supra, 38 Cal.4th at pp. 1098-1101.) _ As appellants do here, the defendant in Johnson urged that “the prosecutor waivedhis right to state his reasons for exercising the peremptory challenges by failing to do so at trial.” (Johnson, supra, 38 Cal.4th at p. 1102.) The defendant further notedthat after the trial court found the defendanthadfailed to establish a primafacie case,it gave the prosecutor the opportunity to develop the record further, and the prosecutor ‘declined:the trial court’s invitation. (/bid.) This Court noted, “We attach no legal significance to this circumstance.” This Court explained that since the trial court found no primafacie case, the prosecutor was not required to state any.reasons for the peremptory challenges he had made. This Court also observed, “That he did not do soat that time should not deprive him of 14 the opportunity to do so on remand now that we knowthetrial court erred in failingto find a prima facie case.”(Ibid. ) F. Because Respondent Has Not MadeInconsistent Arguments, This Court Should Also Decline To Apply The Principle Of Judicial Estoppel In a related argument, appellant Gaines also asks this Court to find that respondent’s position is foreclosed by principles ofjudicial estoppel. Appellant Gaines summarizeshis claim as follows: “Here, the prosecution took the position below that no hearing was necessary because there was no conflict in the evidence. Now the prosecution claimsthere is an irreconcilable conflict that can only be resolved at a hearing. These two positions, taken during judicial proceedings,are totally inconsistent.” (GABM at p. 32.) As previously discussed, respondenthas not taken inconsistent positions based upon the same facts. The Court of Appeal’s ~ opinion hadthe effect of injecting newly admissible evidence, which in turn created disputed factual issues where none had previously existed. In light of the changed circumstancesit is not inconsistent, much less “totally inconsistent,” for respondentto argue that a remandfor an evidentiary hearingis the appropriate remedy. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) | G. Remanding The Matter For An Evidentiary Hearing Will Not Prejudice Appellants Both appellants also argue that remanding the matter for an evidentiary hearing would prejudice them. Appellant Gaines contendsthat “by opposinga hearing in thetrial court, the prosecution delayed any possible hearing by at least twoyears, substantially reducing thelikelihood that any hearing could be helpfulor reliable.” (GABMatp. 32.) Appellant Lavenderasserts that “granting an evidentiary hearing at this stage of the proceedings would be unfair to appellants,” and to the concerns raised by 15 the Court of Appealin its opinion — including the prospect of fading memories, coloring of memories due to publicity, and the difficulties involved in reassembling the jury — he adds his own concern thathis trial attorney is now deceased. (LABMatp. 41.) The defendant in Moore also complained that a remand would violate his due process rights because, since the search had occurred in 1999,“it would be difficult to locate witnesses who would likely remember events relating to the search.” (Moore, supra, 39 Cal.4th at p. 177.) This Court notedit had “already rej ected such a claim” and added: “Weare not persuadedthat relitigation should have been denied because of delay. Delays that are the product of the normal appellate process do not implicate due process concerns. The difficulty in locating witnesses, and the possibility of fading recollection, are no different with respect to the hearing on the admissibility of [evidence] than with respectto thetrial itself.” (Moore, supra, 39 Cal.4th at pp. 177-178, quoting People v. Mattson (1990) 50 Cal.3d 826, 852.) Finally, in Perez, the Court of Appeal previously determined that remand for an evidentiary hearing was appropriate, notwithstanding the defendant’s assertions that it would be impractical: Although weappreciate a substantial period of time has expired since the jury in this case was discharged and obtaining declarations from someorall of the jurors may bedifficult or impossible, we do not believe the court’s earlier error relieving defense counsel of this burden should result in any other procedure than that required by law. (Perez, supra, 4 Cal.App.4th at p. 909.) Though it is unfortunate thattrial counsel for appellant Lavender has" passed away,that fact poses no greater obstacle than the absenceofthetrial judge from the proceedings, which was one of the grounds on which the defendant in Johnsonalleged that he would be prejudiced by a remandfor an evidentiary hearing. (Johnson, supra, 38 Cal.4th at p. 1102.) 16 H. Prejudice Cannot Be Assessed Until The Trial Court Has Resolved The Evidentiary Conflicts And MadeIts Findings OfFact In TheFirst Instance; Thus, This Court Should Reject The Remaining Claims Made By Appellants Next, appellant Gaines asserts the Court of Appealcorrectly determined no further evidentiary hearing is warranted (1) because the prosecution’s declarations, which were submitted to clarify the declarations that the same jurors had submitted to the defense, “failed to explain the discrepancies between them;”(2) because one or more jurors had expressly linked appellants’ failure to testify to an adverse inference of guilt, and so the foreman’s admonition would be unlikely to “ ‘have any curative effect on a jury that has already evinced a willingness to disregard the court’s instructions;’ ” (3) because giventhestate of the evidence in this case“it would bedifficult for the prosecution to rebut the presumption of prejudice;” and(4) because the defense has already provedthetrial was unfair once andit should not be required to make the same showingagain. — (GABMatpp. 32-33.) After analyzing the evidence ofhis guilt, appellant Gaines concludes: “In sum,the fact that the defendants were convicted based on such flimsy and contradictory evidenceraisesa distinct possibility that at least one juror took their failure to testify-into consideration as substantive evidence ofguilt.” He adds, “The admissible evidence - presentedat the motion for newtrial confirmsthis.” (GABMatp. 35.) Like the Court of Appeal, appellant Gaines assumesthe defense declarations have already provedthetrial was “unfair”and that “one or more jurors hadexpressly linked appellants’ failureto testify to an adverse inference of guilt.” Like the Court ofAppeal, appellant Gaines thereby begsthecentral question posed by his case. Like the Court of Appeal, appellant Gainesalso puts the cart before the horse by declaring the presumption ofprejudice is unrebutted. There is no basis upon which to 17 reach those conclusionsin light of the contradictory declarations that were submitted by the prosecution, andit is premature to reach them before the trial court has determined the nature and scope of the misconductthat occurred. That point-will not have arrived until there is “a full factual record regarding the misconductwith all conflicts in the evidence resolved and with the relevant historical facts found[.]” (Carpenter, supra, 9 Cal.4th at p. 659.) Any assessmentofthe strength of the evidencein this case is outside the scope of this Court’s grant of review. Further, the evidencein this case _ wasnot“flimsy and contradictory,” as appellant Gaines makesit out to be. The witnessesall agreed that both appellants were present at Vereen’s apartment, that they were angry because they believed one or more ofthe witnesses hadstolen checks that belonged to them,that they spent nine hours torturing the witnesses in orderto elicit a confession, and that once Tory accepted responsibility they took her away, never to be seen again. (5 LRT 327-330, 334; 6 LRT 636-637, 649, 702; 7 LRT 809-810; 8 LRT 986- 987, 999-1004, 1027, 1051-1052, 1098-1100; 9 LRT 1149-1 151, 1156- 1157, 1181, 1203-1204, 1207, 1263.) Before appellants left with Tory they had burned her with silverware, slapped her, punchedher, pulled herhair, and shavedherhair,all while saying, “You’re going to die, bitch, you’re going to die.” (6 LRT 652-656, 711; 8 LRT 1003-1004, 1054-1055, 1095- 1096; 9 LRT 1156, 1185-1186, 1197-1198.) Appellant Lavender had rubbed scissors along Tory’s body, and had threatened “to put the scissors up [her].” (9 LRT 1151-1153.) Either Gaines or Lavenderthreatened the girls at somepointthat they would take them out to the desert and “make [them] dig [their] own hole.” (9 LRT 1259-1260.) The following morning, appellant Gainestold Vereen that, “The girl is in the canal with a bag over her head barely breathing.” (5 LRT 348-349, 387.) | 18 In a final series of claims, appellant Gaines alleges that respondent has failed: to acknowledge that a determination whether the prosecution has rebutted the presumption of prejudice “requires an examination ofthe entire recordofthe trial, not just juror declarations and testimony”; to provide this Court “with a proffer of the facts it would attempt to prove at a remand hearing;” to acknowledge that“the presence of even one biased juror on the panel . . . requires a new trial for the defendants;” and to acknowledgethat “the trial prosecutor actually invited the misconduct committed in this case by commenting on the defendants’ failureto testify during closing argument.” (GABMatpp. 36-37.) Asto his first point, appellant Gainesis correct, but again he raises the issue prematurely. Asto his fourth point, assuming appellants’ claim that the prosecutor committed Griffin (Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]) error was not forfeited below (Respondent’s Brief at p. 67), whether the prosecutor committed misconduct is beyondthe scopeofthis Court’s grant of review, which concernsthe issue ofjury misconduct. As to appellant Gaines’s second contention, respondentis not seeking an evidentiary hearingso that it can prove newfacts, but rather to afford the trial court the opportunity to resolve the conflicts in the evidence concerning the nature and the scopeof the jury’s misconduct. Finally, appellant Gaines notesin his third contention that “the presence of even one biased juror on the panel . . . requires a newtrial for the defendants[.]” (GABMat p. 36.) “This is correct once bias is established, but the exact nature of the misconductis highly relevant to the initial determination of bias, which is based on all the surrounding circumstances.” (Carpenter, supra, 9 Cal.4th at p. 657.) The proper disposition of this case turns on the exact nature of the misconduct which was committed by appellants’ jurors. (/bid. [“We will not presume greater 19 misconduct than the evidence shows”].) Since it will be unclear whether a newtrial is warranted until the record is fully developed, this Court should remandthe matter for a further evidentiary hearing. CONCLUSION The decision of the Court of Appeal should be reversed and the matter remandedfor an evidentiary hearing under Hedgecock. Dated: November 14,2013 $D2013805749 70783445.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L, GARLAND Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General Pru A. d>wenoon ERIC A. SWENSON Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent 20 CERTIFICATE OF COMPLIANCE I certify that the attached Respondent’s Reply Brief on the Merits uses a 13 point Times New Romanfont and contains 6,176 words. Dated: November 14, 2013 KAMALAD. HARRIS Attorney General of California Cu A. Ssweneen ERIC A. SWENSON Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Floyd Lavender,etal. No.: §209975 I declare: I am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On November15, 2013, I served the attached RESPONDENT’S REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: District Attorney's Office Kimberly Grove County of Imperial Attorney at Law 940 Main Street P.O. Box 425 EI Centro, CA 92243 Ligonier, PA 15658 Attorneyfor Appellant Lavender (2 copies) The Honorable Donal B. Donnelly kimgrove@yahoo.com c/o Clerk of the Court Imperial County Superior Court Rebecca P. Jones 939 W. MainStreet Attorney at Law El Centro, CA 92243 3549 Caminodel Rio South, Ste D San Diego, CA 92108 Attorney for Appellant Gaines (2 copies) rputnamj@cox.net California Court of Appeal Fourth Appellate Dist., Div. One 750 B Street, Suite 300 . San Diego, CA 92101 and I furthermoredeclare, I electronically served a copy of the above documentfrom Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on November 15, 2013 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on November15, 2913, at San Dieg California. ~ A Cathey Pryor Declarant $D2013805749