NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F01340)
Defendant Phillip Hernandez was found guilty of first degree murder for killing his nine-year-old son M. H. with a hatchet. Defendant asks us to reverse his conviction, arguing the trial court erred by: (1) allowing Juror No. 9 to remain on the jury despite his misconduct and actual bias; and (2) admitting into evidence statements defendant made to police involuntarily and after he invoked his right to remain silent. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant had custody of his two sons, P. H. and M. H., in the fall of 2012. At that time, defendant was working intermittently, living at his grandmother's house, and struggling with substance abuse. Defendant's ex-wife, who lived out of state, tried to get custody of the children at a November 2012 hearing. The judge denied her request. Defendant and his ex-wife had been on good terms before she tried to gain custody of the children, but the custody dispute led to a falling out. Defendant's ex-wife scheduled an ex parte hearing on December 6, 2012, and revealed defendant's substance abuse issues to the judge for the first time. She also contacted Child Protective Services on February 4, 2013, because she was concerned about the children's safety given defendant's substance abuse issues. Child Protective Services contacted defendant and helped him enroll in a drug treatment program, but did not remove the children.
In late February 2013, defendant and his sons still lived with defendant's grandmother. The night of February 26, defendant broke through the sliding glass door in the back of the house and went into the "prayer room" where M. H. was sleeping. The crash from the breaking glass woke defendant's grandmother. She went into the "prayer room" and found defendant standing over M. H. She asked defendant, "What are you going to do?" Defendant responded, "I'm going to do what I have to do" and he struck M. H. on the head several times with a hatchet, killing him. Defendant stated to police that the murder gave his ex-wife a "pyrrhic victory;" i.e., a victory where the cost outweighs or negates the benefit. (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1015 col. 1.)
Defendant left his grandmother's house through the back door and then left the property through the side yard. He walked or jogged around the neighborhood until he encountered two police officers who had been called to the crime scene. The officers walked toward defendant, who put his hands up as the officers approached. The officers handcuffed defendant and placed him in the back of their police car. They took defendant to the police station where he was interrogated. The detective who interviewed defendant advised him of his Miranda rights upon entering the interrogation room. Defendant confirmed he understood his rights and proceeded to answer questions. During the course of the four-hour interrogation, defendant confessed to the murder.
Miranda v. Arizona (1966) 384 U.S. 436 .
At trial, defendant filed a motion in limine to exclude his confession. He argued the Miranda warning he received was inadequate, his statement was involuntary, and he invoked his right to remain silent. The trial court found that the Miranda warning was adequate, defendant's statement was voluntary, and defendant did not unambiguously assert his right to remain silent. Defendant's confession was admitted into evidence except for a short conversation consisting of three lines of transcript about a urine sample that was excluded because of its potential prejudicial effect.
During the trial court's voir dire examination of prospective jurors, a prospective juror told the trial court that he possibly had prior knowledge of defendant's case. The juror had seen a news report about defendant's crime on television two years prior to being called for jury duty. He remembered that the victim was a young child who had been killed with a hatchet. The story made an "emotional impact" because the juror had a young son who was the same age as the victim. The court and both attorneys examined the prospective juror for bias, but neither attorney objected to the juror nor did the court find cause to exclude him from the jury. The court found the juror was as "close to 100 percent sure as he possibly can be that he can rely solely and exclusively upon the evidence presented at trial" and did not dismiss him.
During trial, this same juror (now sworn Juror No. 9) asked for a break from proceedings after listening to the pathologist's testimony about M. H.'s autopsy. During the recess, defense counsel stated that Juror No. 9 "was glaring at me in a very angry manner . . . yesterday." He also thought the juror was too emotional to be fair and impartial, and asked the court to examine the juror for possible bias. The prosecutor confirmed that defense counsel had voiced concerns over Juror No. 9's demeanor the day before, but said defense counsel had been unsure whether Juror No. 9 was glaring at him or the prosecutor.
The court acknowledged that some of the jurors, including Juror No. 9, had become justifiably emotional during the pathologist's testimony, but decided not to ask whether Juror No. 9's emotions affected his impartiality. The court also declined to examine him on whether he had been glaring at defense counsel because the court did not want to "alter what [the juror] otherwise would normally do." The court agreed to ask Juror No. 9 whether he could still be fair, because fairness "is really the only issue we're talking about." The court called Juror No. 9 into the courtroom and asked whether, "in light of the fact" that the juror had seen television coverage of the murder before trial, the juror "could still be fair and impartial to both sides in the case." The juror affirmed he could still be fair and impartial, and both counsel declined to question him when the court provided an opportunity to do so. Defense counsel did not raise any further objections to Juror No. 9's presence on the jury.
The Trial Court Did Not Abuse Its Discretion
By Finding No Good Cause To Excuse Juror No. 9
Defendant raises two claims of error with respect to Juror No. 9. First, defendant argues Juror No. 9's outside knowledge of the case from pretrial media coverage created a presumption of prejudice that was not rebutted because the court performed an inadequate inquiry during pretrial voir dire. Second, he argues this pretrial media exposure and Juror No. 9's emotional reaction to testimony created a presumption of prejudice, if not a showing of actual bias, during trial. According to defendant, this error is reversible because the trial court again failed to adequately examine Juror No. 9 about his potential for bias.
As a threshold matter, we agree with the People that defendant forfeited his first claim of error concerning the trial court's pretrial voir dire because he failed to object to the adequacy of the court's examination or challenge Juror No. 9 for cause. Additionally, defense counsel questioned Juror No. 9 before the jury was empaneled, thus was provided an opportunity to question the juror on topics he thought the court did not adequately cover. Because of this, defendant forfeited his claim of inadequate pretrial voir dire. (People v. Foster (2010) 50 Cal.4th 1301, 1324 [finding defendant's failure to object to questioning during voir dire in light of the questionnaire given to jurors and the unlimited questioning afforded to counsel forfeited the claim on appeal]; see also People v. Romero and Self (2015) 62 Cal.4th 1, 24 [defendant forfeited appellate claim that juror questionnaire allowed jurors to be improperly dismissed based on race by failing to object on those grounds during voir dire]; People v. Contreras (2013) 58 Cal.4th 123, 143-144 [defendant forfeited challenge to adequacy of pretrial voir dire by failing to object to the trial court's ruling that additional questioning was unnecessary and instruction on general principles of law was appropriate].)
Turning to defendant's remaining argument regarding error during trial, the record does not show evidence of juror misconduct. Additionally, we conclude the trial court's examination of Juror No. 9 was adequate and its decision to retain Juror No. 9 was supported by the evidence.
" 'Under both the state and federal Constitutions, a criminal defendant is guaranteed the right to be tried by an impartial jury.' " (People v. Duff (2014) 58 Cal.4th 527, 541.) Penal Code section 1089 gives trial courts authority to discharge a juror and replace him or her with an alternate for good cause shown to the court. The trial court " 'has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.' " (People v Fuiava (2012) 53 Cal.4th 622, 711.) If a trial court learns of juror misconduct during the trial, it must "conduct a hearing sufficient to determine whether [there is] good cause to discharge the juror." (People v. Burgener (1986) 41 Cal.3d 505, 519-520, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.) We review the adequacy of the court's questioning of the jurors for misconduct for abuse of discretion. (Burgener, at pp. 519-520.)
Although the trial court has broad discretion to remove a juror for bias, appellate courts review the decision for a " 'demonstrable reality' " of juror bias instead of applying the more common standard, "substantial evidence" of bias. (People v Fuiava, supra, 53 Cal.4th at p. 711.) The " 'demonstrable reality' " test is " 'a more comprehensive and less deferential review.' " (Id. at p. 712.) The trial court must " 'rely on evidence that, in light of the entire record, supports its conclusion that bias was established.' " (Ibid.)
Juror No. 9's Outside Knowledge Does Not Constitute Misconduct
And Does Not Create A Presumption Of Prejudice
Defendant argues Juror No. 9's knowledge of the crime from a media report combined with his emotional reaction to the pathologist's testimony created a presumption of prejudice. A presumption of juror prejudice arises from evidence of juror misconduct. (In re Carpenter (1995) 9 Cal.4th 634, 647-652.) Defendant does not identify any juror misconduct, so this argument fails.
A juror commits misconduct when he or she considers information about a party or about the case that was not part of the evidence received at trial. (People v. Dykes (2009) 46 Cal.4th 731, 809; People v. San Nicolas (2004) 34 Cal.4th 614, 650.) Carpenter examines several of these types of cases. (In re Carpenter, supra, 9 Cal.4th at p. 644.) For example, in People v. Marshall (1990) 50 Cal.3d 907, 949, the defendant successfully established a presumption of prejudice by showing a juror introduced statements of extraneous law during jury deliberations. The juror in Marshall did not just possess information from outside the trial; he actually introduced it for consideration during deliberations, creating the possibility of prejudice because the verdict could be based on evidence not introduced at trial. (Id. at pp. 949-950.)
Also relevant to this case is People v. Holloway (1990) 50 Cal.3d 1098, where a mistrial was appropriate because a juror, while serving on the jury, read a newspaper article about the case that contained information about the defendant's prior criminal record. The juror did not introduce information from the article into deliberations; his outside knowledge was discovered after the jury returned a verdict. (Id. at p. 1106.) In Holloway, the jurors had been specifically "admonished . . . to refrain from reading newspaper articles or listening to other media reports about the case." (Ibid.) The court also "went to great lengths to ensure that the jurors did not hear any evidence about defendant's prior criminal history." (Ibid.) On review, our Supreme Court found the juror's violation of the trial court's instructions constituted misconduct that warranted reversal. (Id. at p. 1098.)
This case is distinguishable from the two cases discussed above. Here, Juror No. 9 had heard of the case before, but there is no evidence that he introduced his knowledge into jury deliberations. In fact, he revealed his knowledge to the court during pretrial voir dire and repeatedly assured the court that he could set aside this information and consider the case impartially based only on the evidence introduced during trial. (Cf. People v. Rountree (2013) 56 Cal.4th 823, 840-841 [finding no presumption of prejudice despite eight jurors possessing prior knowledge of the case because the jurors asserted they could ignore the prior knowledge and judge the case impartially].)
Additionally, Juror No. 9 did not acquire his outside knowledge by reading media reports in violation of the trial court's admonition. He heard a media report before he was called as a juror. Possessing prior knowledge about a case on which one is called to serve as a juror cannot be misconduct. "The jurors' pretrial exposure to publicity about the case is not itself grounds to impeach the verdict, even when the exposure led them to develop tentative opinions about the defendant's guilt or innocence. 'In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that 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 re Hamilton (1999) 20 Cal.4th 273, 295.) Here, Juror No. 9 said he could put his prior knowledge aside and impartially judge the case on the evidence admitted at trial. Thus, Juror No. 9's pretrial knowledge of defendant's case did not rise to a level of misconduct.
Neither did Juror No. 9's emotional reaction to the pathologist's testimony constitute juror misconduct creating a presumption of prejudice. Although Juror No. 9 requested a break after the pathologist's testimony and appeared to be emotional, the record does not support a reasonable inference Juror No. 9 committed misconduct. As the court noted, many jurors had emotional responses to the pathologist's testimony about M. H.'s traumatic and violent death. Further, "the jury is a 'fundamentally human' institution." (In re Hamilton, supra, 20 Cal.4th at p. 296.) Jurors are human beings and human beings react emotionally to their experiences; the law does not expect jurors to remain unfeeling and unemotional during the presentation of evidence in trials, especially disturbing evidence showing a victim's condition after a traumatic event. An involuntary emotional reaction to testimony does not involve the types of behavior cited in Carpenter -- failure to follow court admonitions or introduction of outside facts into deliberations. In this case, Juror No. 9 assured the court that he could be impartial. Absent evidence showing otherwise, there was no misconduct.
The Trial Court's Examination Of Juror No. 9 Was Adequate And
Did Not Reveal Cause For Excluding The Juror For Actual Bias
Defendant argues the trial court erred by allowing Juror No. 9 to continue serving as a juror after being alerted to the juror's emotional response because it failed to adequately examine him about his emotional reaction to testimony and his attitude toward defense counsel. Defendant also argues Juror No. 9 was actually biased, thus denying him a fair trial. We disagree.
Defendant relies heavily on People v. Williams (1981) 29 Cal.3d 392 (Williams I), for his argument that the trial court failed to hold an adequate inquiry into Juror No. 9's possible bias. Williams I holds that "counsel should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges." (Williams I, at p. 407, italics added.) Defendant's reliance on Williams I is misplaced since peremptory challenges are not involved here.
Williams I has since been superseded by Code of Civil Procedure section 223, which provided at the time of defendant's trial, "[e]xamination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." (Stats. 2000, ch. 192, § 1.) The most recent amendment, effective on January 1, 2018, now provides in relevant part, "[d]uring any examination conducted by counsel for the parties, the trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case or the parties before the court." (Code Civ. Proc., § 223, subd. (b)(1).)
Defense counsel was permitted to question Juror No. 9 about his pretrial media exposure before the jury was empaneled and when a peremptory challenge could have been used. Because defense counsel was permitted to ask questions so he could make informed challenges, Williams I is also inapposite to defendant's forfeited claim that the court inadequately inquired into Juror No. 9's bias before he was empaneled.
Regardless, the court did not abuse its discretion by deciding not to ask Juror No. 9 about his emotional reaction to testimony or his attitude toward defense counsel. " '[N]ot every incident involving a juror's conduct requires or warrants further investigation. "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct -- like the ultimate decision to retain or discharge a juror -- rests within the sound discretion of the trial court." ' [Citations.] ' "[A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." ' " (People v. Martinez (2010) 47 Cal.4th 911, 942.)
As the court acknowledged, emotional reactions to the pathologist's testimony were "not unexpected"; multiple jurors reacted emotionally to the testimony. During the recess, Juror No. 9 said he was feeling better and just "felt a little warm." The trial court asked him whether "in light of the fact that you . . . had seen some [television] coverage" he still felt he could be fair and impartial. The juror affirmed his prior knowledge of the case was not affecting his ability to objectively and impartially evaluate the evidence presented at trial. The record shows through Juror No. 9's responses that he was in control of his emotions and capable of making decisions based solely on the evidence. The trial court did not abuse its discretion by declining to inquire further about Juror No. 9's response to the pathologist's testimony.
Neither did defense counsel's statements to the trial court that Juror No. 9 was possibly glaring at him obligate the court to examine Juror No. 9 for potential bias. At trial, defense counsel told the prosecutor that he was unsure whether Juror No. 9 had been glaring at the prosecutor or defense counsel. Defendant's appellate counsel's argument that Juror No. 9 glared at defense counsel is pure speculation. Speculation is insufficient to trigger the court's obligation to inquire into potential juror bias. (See People v. Fuiava, supra, 53 Cal.4th at p. 703 [a trial court is not required to "conduct an inquiry whenever it becomes aware of any indication of a possibility that there might be good cause to remove a juror"].)
Defendant further argues that, despite the court's "inadequate inquiry", the record affirmatively shows Juror No. 9 was actually biased based on the combination of the outside news report he saw prior to the trial and his emotional reaction to the pathologist's testimony. We disagree for the reasons stated, ante, regarding the outside news report and the alleged glaring.
The Trial Court Did Not Err By Denying Defendant's Suppression Motion
Defendant argues his waiver of his Miranda rights was involuntary, he invoked his Miranda rights three separate times during the interrogation, and his confession was coerced by promises of leniency. We reject each argument.
Defendant first attacks his Miranda waiver as involuntarily given. We disagree. There is a presumption against waiver of Miranda rights, and the prosecution has the "heavy burden" of proving a defendant waived his rights. (Miranda v. Arizona, supra, 384 U.S. at p. 475 .) Waiver must be knowing and voluntary, and the prosecution must prove waiver by a preponderance of the evidence. (Berghuis v. Thompkins (2010) 560 U.S. 370, 382-384 [176 L.Ed.2d 1098, 1111-1112].) "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis, at p. 384 .) If a defendant waives his Miranda rights, any subsequent invocation of those rights must be clear and unambiguous. (Berghuis, at pp. 381-382 .) When the interrogation is recorded, as was the case here, the facts are deemed undisputed and we review the Miranda claim independently. (People v. Duff, supra, 58 Cal.4th at p. 551.)
A Sacramento police detective interviewed defendant on the morning of February 27, 2013. Upon entering the interrogation room, the detective informed defendant of his Miranda rights. Defendant confirmed he understood his rights. After reading defendant his rights, the detective proceeded with the interrogation. Defendant answered questions about his name, date of birth, phone number, and address voluntarily; thus he impliedly waived his Miranda rights.
Defendant first argues he invoked his right to remain silent shortly after the interview began. After waiving his Miranda rights by answering questions about his name, birthday, address, and phone number, the detective asked defendant about his girlfriends and children. The parties dispute what defendant actually said at this point. The transcript provides that defendant responded, "I don't wanna talk. I'm - I just (unintelligible). I'm sorry." The detective responded, "It's okay" while defendant said, "I came up, talk to you." In the video of the interview, defendant is seen mumbling with his head down, and it is not clear that he said he came up to talk to the detective. It is clear, however, that defendant said "I don't wanna talk. I just need to breathe." When looking at this exchange, and including the statement that defendant needed to breathe, it is clear defendant was not invoking his right to remain silent but was asking for some time to gather his thoughts.
In fact, the detective honored defendant's request. In response to defendant's statement that he did not want to talk and needed to breathe, the detective says, "take your time, man. Take your time." Approximately two minutes of silence then follows before the detective says to defendant, "I'll tell you right now, I'm coming in the situation late. . . . Um, and my job is here to understand you, okay? I'm not - I'm not your enemy." Defendant replies "I know," and continues talking with the detective about his mental health history.
During this interaction, defendant responds slowly in a quiet voice with his head down, and rocks back and forth slightly. Given defendant's demeanor and his mumbled statements following "I don't wanna talk," including the statement "I just need to breathe," a reasonable officer under the circumstances would assume defendant wanted to avoid thinking or talking about his actions at that moment, not that defendant was trying to invoke his right to silence. (Cf. People v. Nelson (2012) 53 Cal.4th 367 383 [finding defendant's statements that he wanted to " 'be alone' " did not indicate "clearly or otherwise, . . . that he was asserting his right to remain silent"].) Having already waived his Miranda rights by answering the detective's questions, defendant faced the rather "heavy burden" of clearly and unambiguously asserting his right to remain silent in the face of further questioning, which he did not. (Miranda v. Arizona, supra, 384 U.S. at p. 475 ; see Berghuis v. Thompkins, supra, 560 U.S. at pp. 411-412, fn. 9 [176 L.Ed.2d at p. 1129, fn. 9] (dis. opn. Sotomayor, J.).)
Defendant argues his statements following this back and forth should also be suppressed because they were involuntarily coerced by the detective's promise that they would be used to establish a mental health defense. After allowing defendant time to gather his thoughts, the detective said, "[W]hat I really wanna do is - is try and understand you and try and help others understand you, okay?" Defendant responded, "Um, so, it's - I wish I was sick. I - I don't know what's wrong with me." A couple of minutes later, the detective said, "So - well, like I said, or - or one thing we can do is you can help me understand you. And I'm gonna have to relay that to others so that other people can have some kinda understanding of, like you said, you know, you -- you must be sick, or there's something wrong, okay?"
The People argue defendant has forfeited this claim because he relies on a different argument than he relied on at trial. The People cite Williams, which states in dicta that a "defendant ordinarily forfeits elements of a voluntariness claim that were not raised below." (People v. Williams (2010) 49 Cal.4th 405, 435 (Williams II).) However, our Supreme Court reached the issue of voluntariness without deciding whether the issue was preserved for appeal because the trial court "went beyond the defense argument, responding to the prosecution's effort to [establish voluntariness]." (Id. at pp. 435-436.) We likewise address defendant's appellate argument because the trial court reasoned there was no evidence of incapacity in addition to a lack of "any of the other coercive factors which might be applied to conclude that the statement was involuntary."
A statement is involuntary when " 'it was elicited by any promise of benefit or leniency whether express or implied.' " (People v. Tully (2012) 54 Cal.4th 952, 993.) According to defendant, "the reasonable inference from the detective's repeated pleas for information was his representation that [defendant's] statement could help minimize his culpability by helping others find that there was indeed 'something wrong' with him." Defendant's interpretation of the detective's statements is not supported by the record. The detective interviewing defendant made no representation that defendant's conduct would be excused depending on his explanation. The detective said defendant could help the detective and others understand the defendant, not that creating understanding would lead to leniency. At no time did the detective imply leniency would result if defendant helped the detective and others understand him. Defendant's statements were therefore voluntary.
Following this and a 34-minute discussion of defendant's mental health and life's philosophy, the detective broached the subject of defendant's actions immediately before the murder. The detective said, "So you go to your uncle's. And then he takes you home. Can you take me through what happened from the time he dropped you off?" Defendant replies by saying, "I just gotta leave it at that" and "I don't wanna go there." When saying this, defendant appears weepy and upset and also said he wished he could take back his actions. These statements are simply too ambiguous to invoke defendant's right to remain silent and foreclose questioning. The statements are just as likely to be expressions of frustration with the interrogation or shame concerning certain topics as they are assertions that he did not want to talk. (Cf. People v. Silva (1988) 45 Cal.3d 604, 629-630 [finding defendant's statement " 'I don't know. I really don't want to talk about that.' " did not show defendant wanted to terminate the interrogation]; Williams II, supra, 49 Cal.4th at p. 434 ["I don't want to talk about it" merely indicated frustration with the interrogation].) Because these statements were ambiguous, a reasonable officer would not assume defendant was invoking his right to remain silent.
Defendant then told the detective he was feeling "[p]ain, pure pain" the night of the murder and then admitted to using a hatchet to hit M. H. in the head two or three times. The detective then asked defendant about the reasons he (defendant) was required to undergo urine testing and whether he used drug-free urine from other people to pass the tests. When the detective asked defendant if he had used M. H.'s urine to pass his drug test, defendant replied, "Mm, no, I [plead] the fifth, uh, uh." The detective then stopped questioning defendant about this incident. At this point, one hour into the interrogation, defendant appears more relaxed than when he was discussing the murder. He is leaning back and clearly states, "I plead the fifth."
The transcript reads "pleased," but like the trial court, we reviewed the video of the interrogation and find that defendant actually said "plead." --------
As the People concede, defendant invoked his right to remain silent to some extent here. However, the People's argument about the limited scope of defendant's invocation is persuasive. Defendant makes this statement in response to a particularly narrow question concerning the source of drug-free urine he used to pass drug tests. A reasonable officer in these circumstances would assume defendant did not want to talk to police about this subject. In fact, the detective immediately stopped asking defendant about his source of drug-free urine and moved on to other subjects. Like the defendant in Silva, who refused only to talk about the circumstances of the homicide (People v. Silva, supra, 45 Cal.3d at p. 629), defendant here is refusing to talk only about obtaining a urine sample from M. H. Accordingly, defendant did not unequivocally assert his right to remain silent, so the detective was not required to end the interrogation at this point either. Defendant's motion to suppress was properly denied.
The judgment is affirmed.
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________