People
v.
Johnson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTSep 5, 2018
F073002 (Cal. Ct. App. Sep. 5, 2018)

F073002

09-05-2018

THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLIS JOHNSON, Defendant and Appellant.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF134515A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2013, a jury found appellant James Willis Johnson not guilty of first degree murder for the death of his infant son (the baby), but convicted him of the lesser-included charge of second degree murder (Pen. Code, § 187, subd. (a); count 1). It also found him guilty of (1) assault on a child under age eight with force likely to produce great bodily injury and resulting in death (§ 273ab; count 2); (2) willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering, under circumstances likely to produce great bodily injury or death (§ 273a, subd. (a); count 3); and (3) misdemeanor resisting arrest (§ 148, subd. (a)(1); count 4). However, in count 3, the jury found not true the allegation that appellant personally inflicted great bodily injury on the baby (§ 12022.7, subd. (d)).

All future statutory references are to the Penal Code unless otherwise noted.

Appellant was sentenced to prison for 25 years to life for the assault resulting in death (count 2) with a consecutive term of six years for willfully causing or permitting the baby to suffer (count 3). For the murder (count 1), the trial court imposed a sentence of 15 years to life, which was stayed pursuant to section 654. A concurrent term of 30 days was imposed for resisting arrest (count 4).

In our prior unpublished opinion, People v. Johnson (Mar. 17, 2015, F067359), we determined the trial court had abused its discretion when it denied appellant's postverdict petition to obtain juror identifying information. The petition had presented a prima facie showing that jurors had allegedly discussed appellant's failure to testify. We conditionally affirmed the judgment but remanded the matter with directions for the court to conduct further proceedings regarding the petition.

On remand, the trial court conducted further proceedings, which resulted in the defense filing a motion for new trial based on alleged juror misconduct. The motion was supported by the declarations of two jurors. An evidentiary hearing was held and the two jurors testified. In a written ruling, the court found that misconduct had occurred because jurors had discussed appellant's failure to testify. The court, however, determined there was no substantial likelihood appellant suffered actual harm. The court denied a new trial.

In the present appeal, appellant claims the trial court abused its discretion in denying his motion for new trial. He alleges the following: (1) there was a substantial likelihood at least one juror was improperly influenced by his failure to testify; (2) the court used an incorrect standard in denying the motion; (3) the court failed to question a third juror about the misconduct when this juror happened to be in the courthouse during these posttrial proceedings; and (4) the court refused to subpoena all 12 jurors to be questioned. We reject these arguments and affirm the judgment.

BACKGROUND

I. The Relevant Facts.

Appellant was charged in this matter along with Denise Belmonte, the baby's mother. Prior to trial, Belmonte entered into a plea agreement for a 15-year prison term and she testified against appellant. She was the prosecution's primary witness.

The facts surrounding the baby's death are disturbing. We provide a relevant summary taken from our prior opinion in People v. Johnson, supra, F067359.

A. The trial facts surrounding the baby's death.

On the morning of November 10, 2010, emergency personnel responded to a 911 call from appellant's residence. A paramedic found Belmonte attempting to perform CPR on the unresponsive baby, who was just over a month old. No one else was in the room. The paramedic observed rigor mortis in the baby's jaw. The baby was taken to a hospital, where he was declared dead. An emergency room doctor believed the baby had died the previous night. An autopsy found the cause of death to be multiple blunt force injuries; both arms, both legs, and two ribs were broken; the liver was lacerated and bleeding, and the brain was swollen and bleeding. The baby also had third-degree burns covering his buttocks, genitalia, and lower abdomen. The burns predated the other injuries; they had become infected and had turned green.

At trial, Belmonte denied that she hurt the baby or did anything to assault him physically. She blamed appellant for the baby's burns, broken bones, and death. She told the jury that appellant was physically abusive to her throughout their relationship. A neighbor told the jury that, at some point, she had heard appellant and Belmonte arguing. Appellant was heard saying, "Be the mother and get your [ass] in here and take care of him before I beat the hell out of him."

According to Belmonte's trial testimony, appellant burned the baby a week before his death. He did this by accident with hot tap water while changing the baby's diaper. She wanted to take the baby to the doctor, but appellant hit her and threatened to kill her. He was concerned that the baby and their other children would be taken away and he would go to jail. No medical care was ever obtained for the burns. Appellant and Belmonte, however, purchased ointment, which they applied to the baby over the next few days. The baby cried when anything touched the burns. The burns turned brown and then green.

The jury learned that the baby's burns were caused by contact with a liquid at a temperature of 140 degrees or more for no more than 45 seconds. According to a police officer, the temperature of the hot running water in appellant's kitchen and bathroom reached 148 degrees within two minutes. The hot water heater was set on high.

According to Belmonte, on the night of the baby's death, she and appellant argued; he then beat and choked her into unconsciousness. When she regained consciousness, appellant was holding the baby by one leg. When she tried to take him, appellant swung him back and threw him. The baby hit a couch and landed on a bed. Appellant picked up the baby and punched him in the chest because he was crying. Appellant attacked Belmonte again. At some point, the baby became quiet. After arguing for a while, appellant and Belmonte went to sleep sometime after midnight. During that night, Belmonte checked on the baby, offering him a bottle, but he did not wake up. She took the baby's temperature, which was 93.1 degrees. Belmonte thought that was normal. In the morning, the baby was unresponsive and they argued whether the baby was breathing. Belmonte called 911. She administered CPR until the ambulance arrived. Appellant went into a bedroom and did not come out while emergency personnel were present.

During cross-examination, the defense impeached both Belmonte's character and the veracity of her testimony. She had a juvenile adjudication for petty theft. She had been convicted for using stolen credit cards and writing checks with insufficient funds. She had lied several times with child welfare officials. At trial, she admitted making false statements to police about the apparent severity of the baby's burns and what she did in response to the burns.

With law enforcement, Belmonte initially denied living in appellant's residence, and she initially failed to say that appellant threw or punched the baby. She did not admit that appellant was present when the baby was injured until a later interview. Almost two years after the baby's death, Belmonte failed to tell an investigator that appellant threw or punched the baby, and she did not mention any argument or fight with appellant. When shown x-rays of the baby's broken bones, Belmonte then said appellant threw and punched the baby.

The prosecution offered expert testimony on battered women's syndrome to explain why abused people often lie.

Appellant did not testify at trial.

B. The closing arguments.

In her closing argument, the prosecutor urged the jury to convict appellant of first degree murder by finding that he threw and punched the baby with the premeditated intention of killing him. She also presented several other theories under which the jury could find appellant guilty of all or some of the charges. These included that Belmonte inflicted all the injuries, but appellant failed to protect the baby with conscious disregard for his life. In the alternative, appellant was guilty because he aided and abetted Belmonte.

In contrast, defense counsel argued that Belmonte inflicted all the injuries and appellant was asleep while she administered the beating that caused the baby's death. He urged the jury to find appellant guilty only on count 3 because he had failed to get medical treatment for the burns.

C. The posttrial concerns about jury misconduct.

The jury began deliberations on April 3, 2013. They deliberated again on April 4, 5, 8 and 9, 2013, returning guilty verdicts in the early afternoon on the 9th. Over those five days, the jury sent at least six questions and one readback request to the judge. After the verdicts, defense counsel spoke with a juror who had remained in the courthouse. Subsequently, counsel filed a petition for disclosure of juror identifying information for a possible motion for a new trial based on jury misconduct. The petition asserted the jury violated the court's instructions and appellant's rights by discussing appellant's failure to testify.

In our prior opinion, we determined that counsel's declaration filed in support of the motion established good cause for the release of juror information. We conditionally affirmed the judgment but remanded the matter. The trial court was directed to conduct further proceedings regarding the release of juror identifying information.

On remand, the trial court sent letters to all 12 jurors giving them a choice between granting and denying the court permission to provide counsel with means of contacting them. Ten jurors denied permission and two granted it. The two who granted permission were juror No. 3187409 (the foreperson) and juror No. 3012301 (juror 301). Defense counsel contacted these two jurors and obtained declarations from them. Counsel filed a new trial motion supported by the declarations, and an evidentiary hearing was held on December 18, 2015. The two jurors testified.

D. The evidence from the two jurors.

After reviewing the jurors' declarations, the court excluded portions that purported to state the jurors' thought processes in violation of Evidence Code section 1150, subdivision (a). The testimony and admitted evidence from the two jurors' declarations are summarized below.

Pursuant to Evidence Code section 1150, subdivision (a), no evidence is admissible in challenging the validity of a verdict if it shows the effect of a statement or event on a deliberating juror or the mental processes by which the verdict was determined. (See People v. Cissna (2010) 182 Cal.App.4th 1105, 1116 [a juror's subjective reasoning is inadmissible to challenge a verdict].) We note that portions of the jurors' testimony elicited at the evidentiary hearing also violated this statute but neither party objected to the jurors' testimony on this basis.

1. The evidence from the foreperson.

a. The foreperson's declaration.

From the foreperson's declaration, the court relied on the following statements contained in paragraphs 2-B and 2-C:

"Toward the beginning of deliberations I shared with other jurors that I would have liked to have heard from [appellant]."

"A couple other jurors also stated that they would like to have heard from [appellant], and the rest of the jurors nodded in agreement with the statement."

b. The foreperson's testimony.

At the evidentiary hearing, the foreperson testified that, early in the deliberation process, he commented on appellant's failure to testify. The foreperson expressed the "wish that we could have heard what [appellant] said. What -- you know, his side of the story from him personally." Some of the other jurors nodded in agreement after this comment was made.

During his testimony, the foreperson initially stated he could not recall who made this comment but he eventually conceded it likely came from him. He could not recall if he made this comment before or after his selection as foreperson.

The foreperson knew from the jury instructions that they could not consider a defendant's failure to testify during deliberations. He described his comment as "venting" and said it was an offhand remark. He never told the jury that appellant's failure to testify was something they should consider.

According to the foreperson, the jurors did not dwell on this topic, which was discussed for about a minute. The jurors discussed the evidence, and no one ever said they should consider appellant's failure to testify. The foreperson could not recall any other discussions in the approximate four or five days of deliberation regarding appellant's failure to testify.

On cross-examination, the foreperson clarified this topic came up "probably" on the first day of deliberations and he did not think it occurred towards the end of deliberations. He said it "wasn't something we thought about." He "might have heard" another juror ask, "[W]hy would [appellant] not testify if he didn't have anything to hide?" He believed this comment was made closer to the beginning of deliberations. He was not certain if anyone responded to this comment or whether someone said, "[M]aybe that's why he didn't testify." The foreperson did not recall two jurors expressing concern on the last day of deliberations that they had not heard from appellant or that they could not decide the case without having heard from him.

2. Evidence from juror 301.

a. The declaration from juror 301.

From juror 301's declaration, the court relied on the following statements contained in paragraphs 2-G, 2-H, 2-J, and 2-M:

"I asked the other jurors[,] '[W]hy would [appellant] not testify, if he did not have anything to hide?' One of the other jurors responded[,] '[Y]ea, that's a good point.' Another juror responded[,] '[M]aybe that's why he did not testify.'"

"Several jurors mentioned wanting to hear [appellant's] side of the story, so that they could know his timeline of events."

"[An older, female juror asked,] '[H]ow come he did not testify? I would have wanted to hear from him.'"

"On the last day of deliberations, there was a male and female juror who said they could not make a decision without having heard from [appellant]."

b. The testimony from juror 301.

At the evidentiary hearing, juror 301 testified that the jurors discussed appellant's failure to testify for about five minutes. This occurred at the very beginning of deliberations. He admitted saying that if appellant "didn't have anything to hide, why did he not testify?" Others expressed agreement. Other than this five-minute conversation at the start of deliberations, no other discussions took place regarding appellant's failure to testify. The jurors then discussed the evidence and the law.

On cross-examination, juror 301 could not recall two jurors saying on the last day of deliberations that they could not reach a verdict without hearing appellant's testimony. He did recall that an older female asked about appellant's failure to testify, saying she wanted to hear from him. However, he did not recall that juror making "other comments regarding not having heard from [appellant] to the effect of if he was not guilty, he would have testified[.]"

When asked what he recalled about this issue, juror 301 stated: "Like I said, just at the very beginning it was just a discussion about everyone would like to hear from [appellant] and that was it. It just lasted a couple of minutes." Juror 301 agreed that he had reviewed his declaration and it was accurate.

Juror 301 recalled the foreperson bringing up this issue right after he was elected, saying it would have been nice to have heard from appellant. Other jurors made comments like, "yeah, you know, if he if he didn't have anything to hide, maybe that's the reason why he didn't testify."

On redirect examination, juror 301 confirmed that no one said they should find appellant guilty because he did not testify.

E. The trial court's determinations.

After the evidentiary hearing, the trial court took the matter under submission and issued a written ruling. The trial court noted that, according to the declarations, misconduct occurred both at the start and at the end of deliberations. The issue was whether the misconduct was prejudicial, which the trial court called "a difficult question." The jurors' testimony established that the misconduct happened early on the first day of deliberations, lasted anywhere from one to five minutes, and then did not come up again. The discussion was brief and it was not dwelled upon. According to the foreperson, the jury did not consider appellant's failure to testify in their deliberations.

The trial court noted a "credibility determination" was required because of juror 301's statement in the declaration (paragraph 2-M). That statement had read: "On the last day of deliberations, there was a male and female juror who said they could not make a decision without having heard from [appellant]." The court found that the live testimony, subject to direct and cross-examination from two experienced trial lawyers, was more credible than the declaration. The court noted that both jurors testified the misconduct took place early on the first day of deliberations and there was no mention of anything afterwards.

In rendering its ruling, the trial court cited People v. Hord (1993) 15 Cal.App.4th 711 (Hord) and People v. Leonard (2007) 40 Cal.4th 1370 (Leonard). Regarding the jurors' speculation about why appellant did not testify, the court reasoned these were "transitory comments of wonderment and curiosity" and the jurors' comments did not go beyond that. The court concluded as follows: "There is no evidence to support a finding that there was a substantial likelihood that [appellant] suffered actual harm in this case. There is no evidence to suggest that any juror was impermissibly influenced by the statements regarding [appellant's] failure to testify, or expressed any desire to convict him because he did not testify." The court denied the motion for a new trial and this appeal followed.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion In Denying The Motion.

Appellant argues the trial court abused its discretion in denying his motion for new trial. He contends his judgment must be reversed.

A. Standard of review.

A trial court has broad discretion in ruling on a motion for a new trial, and that ruling will be reversed only for a clear abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 308.) When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)

Although the trial court's ultimate ruling on a motion for new trial is reviewed for abuse of discretion, "the question whether prejudice from juror misconduct has been rebutted" is subject to independent review. (People v. Lavender (2014) 60 Cal.4th 679, 687, quoting Leonard, supra, 40 Cal.4th at p. 1425.)

B. Analysis.

Appellant asserts the misconduct colored all subsequent jury discussions because it occurred at the start of deliberations. He contends the jurors' comments went well beyond natural curiosity and mere wonderment. He argues the jurors inferred he had something to hide, and adverse inferences were drawn against him. He notes that no juror, let alone the foreperson, ever admonished the jury to stop the inappropriate discussions.

1. The trial court's credibility determination.

As an initial matter, appellant claims the trial court should not have performed a credibility determination. He contends no evidentiary conflict existed. He asserts that the jurors' live testimony only established a failure to recall whether two jurors on the last day of deliberations said they could not decide the matter without having heard from appellant. He argues this incident on the last day was established by competent evidence from the declarations, and it was error for the court to ignore it. We disagree with these assertions.

If substantial evidence exists, a reviewing court is to accept a trial court's credibility determination and findings on questions of historical fact. (People v. Verdugo, supra, 50 Cal.4th at p. 308.) When there is conflicting testimony, the trial court's findings of fact should be regarded as conclusive to the extent it involves an evaluation of credibility. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.) A trial court may reject the testimony of a witness even if uncontradicted so long as the decision is not arbitrary and rational grounds exist for the decision. If the trial court rejects a witness's testimony, that evidence cannot be credited on appeal unless the entire record establishes the evidence is clear, positive, and cannot rationally be disbelieved. (Id. at pp. 1463-1464.)

The jury entered its verdicts on April 9, 2013. The two jurors executed their respective affidavits in September 2015, well over two years after deliberations ended. The jurors testified at the evidentiary hearing on December 18, 2015, about three months after executing their declarations. When testifying, neither juror could recall any incident where two jurors expressed concern that they could not decide the matter without having heard from appellant. However, on cross-examination, juror 301 agreed he had reviewed his declaration and it was accurate.

Discrepancies existed between the declarations and the live testimony, which called into question the veracity of the sworn affidavits. During the extensive questioning in court, both jurors testified that the inappropriate discussions took place on the first day of deliberations, it lasted between one to five minutes, and no one ever said appellant should be found guilty because he did not testify. According to juror 301, other than the jury's five-minute conversation at the start of deliberations, no other discussions took place regarding appellant's failure to testify.

Contrary to appellant's assertion, the trial court was not obligated to accept the declarations as true. (See People v. Hamlin, supra, 170 Cal.App.4th at p. 1463 [a trial court may reject the testimony of a witness even if uncontradicted so long as the decision is not arbitrary and rational grounds exist for the decision].) It was up to the court to determine the weight and credibility afforded to the declarations and testimony in support of appellant's motion for a new trial. (People v. Hill (1969) 70 Cal.2d 678, 699.)

The trial court explained why it did not find portions of the affidavits credible. In judging witness credibility, the judge was entitled to consider many factors, including the jurors' demeanors, their ability to recollect, and any previous consistent or inconsistent statements. (Evid. Code, § 780, subds. (a)-(k).) The court determined that misconduct took place early on the first day of deliberations but not later as suggested in the declarations. "'Where there is conflicting testimony, reviewing courts recognize that the trier of the facts has the better opportunity to judge the credibility of witnesses. In such a case the trial court's findings of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as conclusive on appeal.' [Citation.]" (People v. Hamlin, supra, 170 Cal.App.4th at p. 1463.)

Based on the live testimony, which was subject to cross-examination, the court had substantial evidence to make its findings. Because substantial evidence supports the court's findings, we accept its credibility determination. (See People v. Verdugo, supra, 50 Cal.4th at p. 308 [if substantial evidence exists, a reviewing court is to accept a trial court's credibility determination and findings on questions of historical fact].) We reject appellant's claim that the trial court erred in this regard.

The dissent does not assert that the trial court's evidentiary rulings and credibility determinations were incorrect. (Dis. opn., post, at p. 8.)

2. The trial court did not abuse its discretion.

A criminal defendant has a constitutional right to have 12 impartial and unprejudiced jurors decide the case. If even a single juror has been improperly influenced, a conviction cannot stand. (People v. Weatherton (2014) 59 Cal.4th 589, 598 (Weatherton).) An impartial jury is one in which "'every member is "'capable and willing to decide the case solely on the evidence before it'" [citations].' [Citation.]" (People v. Hensley (2014) 59 Cal.4th 788, 824.)

A jury commits misconduct when it discusses a defendant's failure to testify in violation of the trial court's instructions to the contrary. (Leonard, supra, 40 Cal.4th at p. 1425.) This misconduct gives rise to a presumption of prejudice. (Ibid.) The People must rebut the presumption by demonstrating "'there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment' [Citations]." (People v. Gamache (2010) 48 Cal.4th 347, 397.) The presumption may be rebutted either with an affirmative evidentiary showing of no actual bias or by examining the entire record to determine there is no substantial likelihood of actual harm to the defendant. (People v. Brooks (2017) 3 Cal.5th 1, 93; accord In re Carpenter (1995) 9 Cal.4th 634, 657.) If a substantial likelihood exists that a jury was biased, the verdict must be set aside even if a reviewing court believes an unbiased jury would have reached the same verdict. "Regardless of how weighty the evidence may be, a defendant is entitled to 12, not 11, impartial jurors. [Citation.]" (People v. Hensley, supra, 59 Cal.4th at p. 824.)

Our Supreme Court has used the term "no reasonable probability of prejudice" when analyzing whether there was "no substantial likelihood" that one or more jurors were biased against the defendant. (People v. Grimes (2015) 60 Cal.4th 729, 785.)

In this matter, it is undisputed that misconduct occurred when the jurors discussed appellant's failure to testify. The issue before us is whether the resulting presumption of prejudice was rebutted. Appellant asserts that the People failed to do so. He contends there is a substantial likelihood that at least one juror was improperly influenced. We disagree.

The trial court had instructed the jury it could not discuss appellant's failure to testify nor permit that issue to enter the deliberations in any way.

We review the two opinions which the trial court cited, Hord, supra, 15 Cal.App.4th 711 and Leonard, supra, 40 Cal.4th 1370.

a. Hord , supra , 15 Cal.App.4th 711.

In Hord, the defendant was convicted of sex crimes against a minor. It was subsequently discovered that, during deliberations, multiple jurors had discussed both the defendant's failure to testify and his possible sentence. (Hord, supra, 15 Cal.App.4th at pp. 721-722.) At some point, the foreperson interrupted the jurors and admonished them that this was inappropriate, and the discussions ceased. (Id. at p. 722.) This court reviewed the matter and determined that, while misconduct had occurred, it was not prejudicial. (Id. at p. 725.) Hord stated that the jurors' comments were different from other forms of misconduct, such as conducting experiments, or bringing new law or facts into deliberations. (Id. at p. 727.) These comments "did not interject any new material into deliberations that was not already known by the jury from the trial itself. Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion." (Id. at pp. 727-728.) The chance of prejudice, however, increases when comments "go beyond natural curiosity" and dwell on "forbidden areas," such as saying a defendant is guilty because he did not testify. (Id. at p. 728.) Such a comment suggests an inappropriate inference and is more likely to influence the jurors. (Ibid.)

In Hord, we provided examples of comments that go beyond natural curiosity. "For example, if a juror were to say, 'The defendant didn't testify so he is guilty,' or 'we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished,' the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas which are off limits. Such comments are more likely to influence that juror and other jurors." (Hord, supra, 15 Cal.App.4th at p. 728.)

Hord focused on one statement that appeared in a juror's declaration filed in support of the defendant's motion for a new trial. According to the declaration, another juror had made an "oblique remark" during deliberations "about a party not saying anything to protect himself." (Hord, supra, 15 Cal.App.4th at p. 728.) While this comment "may have carried a greater potential for prejudice than a mere statement of curiosity," reversal was not required because it did not appear that the jurors engaged in "lengthy discussion" about the inappropriate topics and there was no "movement to disobey the court's instructions. The comments did not involve extra record material but were regarding matters already obvious to the jurors. More importantly, the foreperson admonished his fellow jurors and reminded them they could not consider defendant's not testifying during deliberations." (Ibid.)

b. Leonard , supra , 40 Cal.4th 1370.

In Leonard, supra, 40 Cal.4th 1370, a jury convicted the defendant of various charges, including six counts of murder. It found true three special circumstance allegations. The jury returned a verdict of death. (Id. at p. 1376.) On appeal, the defendant raised numerous issues directed at both the guilt and penalty phases of trial. Relevant to our discussion, the Supreme Court addressed alleged jury misconduct during the penalty phase. According to two juror affidavits presented by the defendant in support of a new trial motion, the jury discussed during its deliberations the defendant's failure to testify. (Id. at p. 1424.)

One juror declared that he and several jurors wished the defendant had testified during the penalty phase so they could better understand why he killed six people and whether he was truly remorseful. (Leonard, supra, 40 Cal.4th at p. 1424.) The other juror, the foreperson, declared that he and other jurors discussed wanting to have heard the defendant testify so they could better know him and understand the extent of his impairment. "'We discussed the fact that we would have liked to have heard [defendant's] reasons for committing the crimes as we felt this was not satisfactorily answered through the testimony of defense expert witnesses.'" (Ibid.)

Leonard found misconduct. However, based on the entire record, the presumption of prejudice was rebutted. (Leonard, supra, 40 Cal.4th at p. 1425.) According to the high court, "the purpose of the rule prohibiting jury discussion of a defendant's failure to testify is to prevent the jury from drawing adverse inferences against the defendant, in violation of the constitutional right not to incriminate oneself." (Ibid.) The jurors' comments on the defendant's failure to testify "merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better." (Ibid.) Quoting comments from the trial court, Leonard stated it is "'natural'" for jurors to want to hear from defendants. Although courts try to deter jurors from speculating and drawing negative inferences, merely wishing a defendant had testified is not the same as punishing the defendant for not taking the witness stand. "'It is not the same as drawing negative inferences from the absence of testimony.'" The high court found no substantial likelihood the defendant was prejudiced by the jury's brief discussion of his failure to testify at the penalty phase. (Ibid.)

c. Hord and Leonard support the trial court's ruling.

Hord and Leonard establish that the trial court did not abuse its discretion. Although the presumption of prejudice was not rebutted with an affirmative evidentiary showing of no actual bias, the entire record demonstrates there is no substantial likelihood of actual harm to appellant. The juror's improper discussion occurred at the very beginning of deliberations, it lasted between one to five minutes, and no one ever said appellant should be found guilty because he did not testify. The foreperson never told the jury that appellant's failure to testify was something they should consider. Juror 301 stated the jurors had a discussion "at the very beginning" that "everyone would like to hear from [appellant] and that was it. It just lasted a couple of minutes." Other than the jury's five-minute conversation at the start of deliberations, no other discussions took place regarding appellant's failure to testify.

We disagree with the dissent's characterization that the jurors "openly speculated to one another" that appellant might have remained silent to conceal incriminating facts. (Dis. opn., post, at p. 9.) This is not an accurate reflection of the record. To the contrary, and as the dissent acknowledges, juror 301 merely posed a rhetorical question. (Dis. opn., post, at p. 8.) Although some jurors expressed agreement with that remark, this cannot be characterized as anything more than what occurred. Importantly, following this brief exchange, the jurors did not revisit this issue.

Although Hord is factually distinguishable (at some point its foreperson admonished the jury to stop the inappropriate discussions), this court's previous language from Hord is relevant and meaningful. As in Hord, the jurors' isolated comments were transitory, and merely expressed their natural curiosity. Although this was misconduct, it was "innocuous" because it stood alone without any further discussion. (Hord, supra, 15 Cal.App.4th at pp. 727-728.) Although juror 301 wondered whether appellant had anything to hide, and other jurors agreed with that sentiment, reversal is not required because this brief exchange occurred early in the lengthy deliberative process and was not revisited. The jurors did not engage in "lengthy discussion" about the inappropriate topic. Although this comment may have carried a greater potential for prejudice, there was no "movement to disobey the court's instructions." (Id. at p. 728.)

The dissent argues that juror 301's rhetorical question was more than natural curiosity because it was "a suggestion that perhaps" appellant was hiding something. (Dis. opn., post, at p. 8, emphasis added.) The dissent then speculates, in the absence of anything in the record for support, that this one-time remark "could easily have influenced" the jury over five days of deliberations. (Ibid.) The dissent fails to overcome the simple fact that the jurors' brief exchange stood alone without further discussion.

The dissent asserts it was "untenable" for the trial court to view the jurors' comments as mere expressions of curiosity and wonder. (Dis. opn., post, at p. 8.) The dissent is mistaken. Juror 301 posed a rhetorical question at the beginning of deliberations. Although some jurors expressed agreement with that brief remark, the jurors never stated that they could or should infer guilt because appellant exercised his right to remain silent. Moreover, no juror stated or suggested that appellant's failure to testify should be held against him. The jurors' brief statements did not go beyond mere natural wonderment and curiosity.

As discussed in Leonard, it was natural for the jurors to want to hear from appellant. (Leonard, supra, 40 Cal.4th at p. 1425.) However, merely expressing that wish was not the same as punishing appellant for a failure to testify. (Ibid.) Following their brief discussion, the jurors engaged in lengthy deliberations which focused on the facts and the law.

The dissent claims that the timing of the jury's misconduct and its subsequent lengthy deliberations cannot rebut the presumption of prejudice. The dissent also asserts that the jurors did not forget about "these remarks over the five days of their deliberations." (Dis. opn., post, at pp. 10, 11.) The dissent misses the point. Following the brief remarks, the jury never returned to this topic over a five-day period. At the end of deliberations, the jury made findings favorable to appellant. It is the totality of the record that rebuts the presumption of prejudice.

As appellant notes, Belmonte testified under a plea agreement, she had a motive to lie, and both her character and the veracity of her testimony were impeached on numerous occasions. It was possible that Belmonte was responsible for some or all of the baby's injuries. However, although it was disputed who injured the baby, it was undisputed that either appellant and/or Belmonte were responsible. The prosecution argued that, even if the jury believed Belmonte caused the injuries, appellant was nevertheless liable because he either failed to act in conscious disregard for the baby's life and/or he aided and abetted Belmonte. After engaging in lengthy deliberations, the jury found appellant not guilty in count 1 of first degree murder. In count 3, the jury found not true the allegation that appellant inflicted great bodily injury. Although misconduct occurred, nothing reasonably suggests the jury drew adverse inferences against appellant in violation of his constitutional right not to incriminate himself. (Leonard, supra, 40 Cal.4th at p. 1425.)

In count 3, the jury found appellant guilty of willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering, under circumstances likely to produce great bodily injury or death (§ 273a, subd. (a)).

We likewise find unpersuasive appellant's claim that the lengthy deliberations support a finding of prejudice. The prosecution presented compelling evidence establishing appellant's guilt. Either he was the direct perpetrator of the baby's injuries and/or he failed to act in conscious disregard for the baby's life and/or he aided and abetted Belmonte. Given the state of the trial evidence, the complexity of the legal theories presented, and questions about Belmonte's credibility, the length of the deliberations reasonably suggest the jury conscientiously performed its civic duty. (See People v. Walker (1995) 31 Cal.App.4th 432, 439.) Given the overall strength of the case against appellant, a jury would not be expected to prolong its deliberations if it harbored a bias for conviction. (See People v. Manson (1976) 61 Cal.App.3d 102, 188 [rejecting argument that protracted deliberations indicated the presence of prejudice.) The fact the jury voted to acquit appellant of first degree murder (count 1) and found not true that he inflicted great bodily injury (count 3), tends to show the jurors carefully examined Belmonte's credibility. These findings also suggest the jurors felt free to express their differences and to hold on to their views. Over the five days of deliberations, the jury sent at least six questions and one readback request to the judge. Under these circumstances, the lengthy deliberations strongly suggest the jury decided the case on the evidence rather than holding appellant's failure to testify against him and presuming he was guilty. For these reasons, we likewise reject appellant's claim that the jury ignored the presumption of innocence.

We note that, in an extraneous-information case, our Supreme Court has approved looking at, among other factors, the strength of the trial evidence against the defendant as logically bearing on a circumstantial finding of likely bias. "For example, the stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict. An example is provided in Hasson v. Ford Motor Co. [(1982) 32 Cal.3d 388, 417], where we found the presumption of prejudice had been rebutted, in part because '[t]here was overwhelming proof' in support of the verdict." (In re Carpenter, supra, 9 Cal.4th at p. 654.)

The dissent concedes that the jury made "some findings" in appellant's favor. (Dis. opn., post, at p. 11.) However, the dissent speculates that some jurors could have remained biased against appellant and the misconduct "could" have tipped the balance against appellant. (Dis. opn., post, at p. 12.) The dissent offers no concrete explanation or evidence to support its conclusory position.

Our Supreme Court has noted it is natural for jurors to wonder about a defendant's failure to testify. (People v. Manibusan (2013) 58 Cal.4th 40, 59.) All lawyers and "'indeed anyone with common sense, knows that . . . individual jurors do wonder why a presumably innocent defendant does not testify.'" (Ibid., quoting People v. DeShannon (1970) 11 Cal.App.3d 982, 988.) Our high court has also emphasized that the likelihood of bias must be "substantial" before a unanimous verdict is set aside. (In re Carpenter, supra, 9 Cal.4th at p. 654.) We must undertake both an objective and pragmatic inquiry that considers the daily realities of courtroom life "'and of society's strong competing interest in the stability of criminal verdicts [citations].' [Citation.]" (People v. Lavender, supra, 60 Cal.4th at p. 688.)

Based on the entire record, the presumption of prejudice which arose from this misconduct was rebutted. There is no substantial likelihood at least one juror was improperly influenced by the jury's brief discussion of his failure to testify. (See Leonard, supra, 40 Cal.4th at p. 1425.) As such, in denying the motion for new trial, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. Accordingly, the trial court did not abuse its discretion and this claim fails.

According to the dissent, if jurors speak to each other about why a defendant did not testify, "there must be a showing that there is no reasonable probability that even one of the 12 jurors was biased by it, or else the verdict cannot stand." (Dis. opn., post, at p. 12, emphasis added.) This does not accurately reflect the law. Our Supreme Court makes clear that when jurors discuss a defendant's failure to testify, the presumption of prejudice may be rebutted "'by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.' [Citations.]" (Leonard, supra, 40 Cal.4th at p. 1425.) The dissent's insistence on an evidentiary showing is inconsistent with Leonard.

II. The Trial Court Did Not Apply An Incorrect Standard.

In denying the motion for new trial, the court stated: "There is no evidence to support a finding that there was a substantial likelihood that [appellant] suffered actual harm in this case. There is no evidence to suggest that any juror was impermissibly influenced by the statements regarding [appellant's] failure to testify, or expressed any desire to convict him because he did not testify."

According to appellant, the trial court applied the wrong standard and relied on a lack of evidence rather than affirmative evidence to rebut the presumption. He relies primarily on Weatherton, supra, 59 Cal.4th 589 to establish error. He further argues nothing in the court's written order reflects a specific finding that the People met its burden. We find these contentions and appellant's reliance on Weatherton unpersuasive.

In Weatherton, it was undisputed that a juror, P.P., repeatedly talked about the case outside deliberations in defiance of the trial court's repeated admonitions. Long before the prosecution rested its case, P.P. conveyed a belief in the defendant's guilt. "He also told jurors, both before and during deliberations, that defendant deserved the death penalty, indicating that his mind was made up regarding guilt." (Weatherton, supra, 59 Cal.4th at p. 599.) The trial court found that P.P. had engaged in serious misconduct, but concluded there was "no evidence" of actual bias and the misconduct did not rise to a level showing a substantial likelihood of bias. (Id. at p. 600.) On appeal, the Supreme Court determined that the trial court had applied the wrong standard. "Once a court determines a juror has engaged in misconduct, a defendant is presumed to have suffered prejudice. [Citation.] It is for the prosecutor to rebut the presumption by establishing there is 'no substantial likelihood that one or more jurors were actually biased against the defendant.' [Citation.]" (Ibid.) According to the high court, an independent review was required to determine whether the misconduct was prejudicial. Based on the nature, scope, and frequency of P.P.'s misconduct, along with his repeated and admitted untruthfulness on a variety of topics, the People did not discharge their burden. The Supreme Court set aside the verdict. (Ibid.)

Weatherton is distinguishable. The misconduct in this matter was neither prolonged nor repeated. Our independent review establishes that the misconduct was not prejudicial. Further, a fair reading of the trial court's ruling establishes that the court found no substantial likelihood of prejudice after focusing on the length and scope of the misconduct. We disagree with appellant's claim that the trial court's determination was based on a lack of evidence. Weatherton does not dictate reversal.

We likewise reject appellant's claim that nothing in the court's written ruling reflects a finding that the People overcame the presumption. To the contrary, and as appellant concedes, the ruling acknowledged the presumption of prejudice that arose from the misconduct. The court noted that the issue of prejudice was "a difficult question." The court summarized the evidence along with a discussion of relevant case law. The cases which the court cited, Hord and Leonard, both state the presumption of prejudice may be rebutted, in part, by a reviewing court examining the entire record and determining there is no substantial likelihood the defendant suffered actual harm. (Leonard, supra, 40 Cal.4th at p. 1425; Hord, supra, 15 Cal.App.4th at p. 725.) Although the court's final paragraph did not expressly state that the People had rebutted the presumption of prejudice, the court's overall ruling made such a finding. We presume that the trial court knew and applied the correct law. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 403.) Nothing in this record reasonably suggests we should deviate from that presumption.

Finally, the presumption of prejudice "merely excuses the defendant from affirmatively proving prejudice when that cannot be done. The presumption prevails '"unless the contrary appears."' [Citation.]" (In re Carpenter, supra, 9 Cal.4th at p. 657.) It is not dispositive that the respondent below failed to present affirmative evidence showing there was no prejudice. (Ibid.) Our high court permits a presumption of prejudice to be rebutted even if "no affirmative evidentiary showing" is made. (Brooks, supra, 3 Cal.5th at p. 93.)

Based on the totality of the trial court's ruling, we reject appellant's claim that the court applied the wrong standard. In any event, our independent review of the record affirms the trial court's determination that there was no substantial likelihood appellant suffered actual harm. (See Leonard, supra, 40 Cal.4th at p. 1425.) As such, the trial court did not err and we reject this claim.

III. The Trial Court Did Not Abuse Its Discretion In Refusing To Question A Third Juror.

After this matter was remanded to the trial court for further proceedings, the court sent letters to all 12 jurors. The letter indicated a hearing date (August 11, 2015) set to resolve appellant's motion to obtain the jurors' contact information pursuant to Code of Civil Procedure section 237. In the letters, the jurors were given certain options, including an opportunity to decline any contact with counsel. Prior to the August 2015 hearing date, nine jurors responded and declined contact. Three jurors failed to respond prior to the day set for the hearing. One of those jurors, however, appeared at the courthouse on the day of the scheduled hearing. This juror, number 3136430, gave the court deputy her written response, which declined contact with counsel. Juror 3136430 was outside the courtroom on August 11, 2015, when the parties appeared on the record to discuss disclosure of the jurors' contact information.

Because this juror was physically present in the courthouse, defense counsel requested that she be brought into the courtroom so that both attorneys could question her. The prosecutor objected, contending the juror showed up to turn in the written response. The trial court denied defense counsel's request because the juror had declined to speak with counsel. "Perhaps after speaking to the other two jurors, if you develop some information at that point, then we might have the opportunity to call jurors in. But at this point I'm going to [deny] your motion."

Appellant claims the trial court abused its discretion. He seeks a new hearing in the trial court regarding his motion for new trial. He requests that juror 3136430 be subpoenaed to testify.

A. Standard of review.

A deferential abuse of discretion standard is used when a trial court restricts counsel's ability to contact jurors or the court fails to conduct an evidentiary hearing following allegations of misconduct. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096 [restricting contact with jurors]; People v. Hayes (1999) 21 Cal.4th 1211, 1256 [failure to conduct evidentiary hearing]; see also People v. Santos (2007) 147 Cal.App.4th 965, 978 [abuse standard used when court denies a petition for juror contact information pursuant to Code of Civil Procedure section 237].) Under the abuse of discretion standard, we will not disturb the trial court's decision on appeal unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; see People v. Williams, supra, 17 Cal.4th at p. 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)

B. Analysis.

Appellant contends it was "reasonably necessary" to question juror 3136430 when she appeared at the courthouse. He notes that defense counsel neither requested this juror's personal contact information nor wanted to interview her in a private setting. He maintains her testimony would not have intruded on privacy rights, and the court, as opposed to counsel, could have asked the questions about misconduct. Appellant argues that, balancing the competing interests, the court should have invited the juror into the courtroom for further inquiry or compelled her testimony if she was unwilling. He relies primarily on People v. Tuggles (2009) 179 Cal.App.4th 339 (Tuggles) to establish error. We find appellant's arguments and his reliance on Tuggles unconvincing.

When possible juror misconduct is discovered, a trial court must make whatever inquiry is "'"reasonably necessary"'" to resolve the issue. (People v. Hayes, supra, 21 Cal.4th at p. 1255.) When allegations of juror misconduct raise a presumption of prejudice, the court may conduct an evidentiary hearing and take testimony from jurors to determine whether a new trial motion should be granted. Such a hearing may occur if the court concludes it is necessary to resolve material, disputed issues of fact. (Ibid.)

Strong public policies protect discharged jurors from improperly intrusive conduct. (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1092.) Under Code of Civil Procedure section 206, juror consent is required before the parties may contact a juror after trial. (Code Civ. Proc., § 206, subd. (b).) The disclosure of a juror's personal identifying information is controlled by Code of Civil Procedure section 237, which requires a petition supported by a declaration establishing good cause. (Code Civ. Proc., § 237, subd. (b).) Protection of a juror's privacy, however, must be balanced with the equally important policy that criminal verdicts are free from jury misconduct. (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1092.)

In appellant's cited authority, Tuggles, supra, 179 Cal.App.4th 339, the trial court refused to disclose the contact information of certain jurors after the defense filed a petition and these jurors objected to disclosure. In making this denial, however, the trial court concluded it lacked independent discretion to order the jurors to appear at a posttrial hearing. (Id. at p. 379.) According to the appellate court, although it was proper to not disclose the jurors' contact information to counsel, the trial court erred in concluding it lacked independent discretion to order the jurors to appear. (Id. at p. 376.) The regulations under Code of Civil Procedure sections 206 and 237 do not apply to a trial judge. (Tuggles, supra, at p. 386.) A trial court has both inherent and statutory discretion to control proceedings. When a trial court is presented with a credible claim of serious misconduct, "the trial court may order jurors to appear at a hearing and to answer questions about whether misconduct occurred." (Id. at pp. 385-386.) "Under Code of Civil Procedure section 206, it is the trial judge who acts as the gatekeeper of jurors' personal information to prevent unwanted intrusion by the parties, counsel, and their representatives. However, the statute imposes no constraint on the trial court to investigate misconduct." (Tuggles, supra, at p. 386.) "The trial court has discretion to subpoena even reluctant jurors when necessary to determine whether the factfinding process went awry. [Citation.]" (Id. at p. 387.) "The duty to protect jurors from overzealous attorneys and investigators does not require an abdication of the court's obligation to ensure that the jury trial process is free from misconduct." (Ibid.)

Although error had occurred in Tuggles, the appellate court held it was harmless beyond a reasonable doubt. (Tuggles, supra, 179 Cal.App.4th at p. 387.) The alleged juror misconduct lacked credibility. (Id. at pp. 387-388.) The appellate court determined that remand would serve no legitimate purpose. (Id. at p. 388.)

Here, unlike in Tuggles, the trial court never indicated it lacked discretion to order juror 3136430 to attend a posttrial hearing. Instead, the court indicated it was willing "to call jurors in" later if required. Nothing reasonably suggests the trial court abdicated its obligation to investigate the jury misconduct. To the contrary, the court's willingness to call this juror when needed shows it balanced the competing interests. Tuggles is distinguishable and does not warrant reversal.

Based on this record, we will not disturb the trial court's decision. The court upheld this juror's request to avoid contact with counsel. (See Townsel v. Superior Court, supra, 20 Cal.4th at p. 1095.) The trial court properly acted as a "gatekeeper" and protected this juror's wishes. (Id. at pp. 1095-1096.) The court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) This ruling did not fall outside the bounds of reason under applicable law and relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) As such, an abuse of discretion is not present and this claim fails.

IV. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Request To Subpoena The Remaining Jurors To Testify.

Appellant contends the trial court abused its discretion by denying a defense request for all 12 jurors to be subpoenaed to testify at the evidentiary hearing. If he is not entitled to a new trial, he asserts this case "should be remanded with directions for the trial court to conduct a full inquiry involving all jurors."

A. Background.

In September 2015, prior to the evidentiary hearing, appellant asked the trial court to subpoena the 10 jurors who refused to consent to release of their contact information. At the conclusion of the December 2015 evidentiary hearing, defense counsel asked the court to open the investigation to obtain more information.

In its written ruling, the trial court addressed this issue: "In light of the testimony provided at the hearing by [the two jurors], [appellant] has orally renewed his motion to examine the remaining 10 jurors. As counsel is aware, those 10 jurors specifically declined to be interviewed. While this Court does have the authority to have such jurors [subpoenaed] and examined, it finds it unnecessary and declines to do so. Two jurors, including the foreman, were subject to direct and cross-examination regarding the issues at bar. The Court is satisfied that sufficient evidence was presented for the purposes of making an informed decision."

B. Analysis.

According to appellant, the trial court was aware of its discretion to subpoena the "reluctant jurors" but it "refused to do so." He contends that was an abuse of discretion. He argues the court conducted an insufficient investigation. He claims the remaining jurors should have been called to resolve the dispute about whether two jurors on the last day of deliberations said they could not decide without having heard from appellant. He maintains the court unreasonably relied on witnesses who claimed faulty recollection throughout the evidentiary hearing. We reject these contentions.

The foreperson and juror 301 were questioned fully at the evidentiary hearing. The facts were explored surrounding when and how this misconduct occurred. The defense did not allege, and the evidence did not establish, instances of misconduct beyond the concerns raised in the two affidavits filed in support of the motion for new trial. "We will not presume greater misconduct than the evidence shows." (In re Carpenter, supra, 9 Cal.4th at p. 657.)

Moreover, as we analyzed earlier, it was up to the trial court to determine the weight and credibility afforded to the declarations and testimony in support of appellant's motion for a new trial. (People v. Hill, supra, 70 Cal.2d at p. 699.) The court was not obligated to accept the affidavits as true. (See People v. Hamlin, supra, 170 Cal.App.4th at p. 1463.) Discrepancies existed in the evidence beyond mere "limited recollection" as appellant contends. The trial court explained why it did not find portions of the affidavits credible. In judging witness credibility, the judge was entitled to consider many factors, including the jurors' demeanors, their ability to recollect, and any previous consistent or inconsistent statements. (Evid. Code, § 780, subds. (a)-(k).) Substantial evidence supports the trial court's credibility and factual determinations, which we will not reweigh. (See People v. Verdugo, supra, 50 Cal.4th at p. 308 [if substantial evidence exists, a reviewing court is to accept a trial court's credibility determination and findings on questions of historical fact].)

Based on this record, we disagree that the trial court was required to call the remaining 10 jurors to testify. The court undertook an inquiry that was "'"'reasonably necessary'"'" to resolve the matter under the circumstances. (See People v. Hayes, supra, 21 Cal.4th at p. 1255.) The trial court's ruling was neither arbitrary, capricious nor patently absurd resulting in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The court's decision did not fall outside the bounds of reason under the applicable law and the relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Accordingly, the trial court did not abuse its discretion and this claim fails.

DISPOSITION

The judgment is affirmed.

/s/_________


LEVY, Acting P.J. I CONCUR: /s/_________
PEÑA, J.

—ooOoo—

SMITH, J.-Dissenting.

Johnson is entitled to a new trial because the record fails to rebut the presumption of prejudice arising from the two jurors' admitted misconduct and the misconduct of other jurors as described by them. The uncontroverted evidence proved jurors speculated aloud that Johnson might have exercised his Fifth Amendment right not to testify for the purpose of hiding his guilt, and no juror responded by reminding them that they could not consider this. Nothing in the record—neither specific items of evidence nor the record as a whole—establishes that, in spite of these facts, there is no reasonable likelihood any juror was biased. The law mandates granting a new trial under these circumstances.

The majority opinion never satisfactorily comes to grips with the two key facts just mentioned: jurors engaged in overt discussion of the possibility that Johnson did not testify because testifying would reveal his guilt, and no one interjected at any point an observation that this was a forbidden consideration. This fact pattern is the salient distinction between this case and the cases on which the majority opinion relies. It is a fact pattern our Supreme Court has singled out, explaining that if jurors go beyond merely discussing a defendant's failure to testify and cross over into talk about this failure as an indicator of guilt, then either an admonition by a juror not to consider this or some other kind of "stronger affirmative evidence" is often needed to rebut the presumption of prejudice. (People v. Lavender (2014) 60 Cal.4th 679, 690.) Neither was presented here.

If there were room to doubt that the presumption of prejudice went unrebutted, it would still be necessary, at the very least, to remand the matter to the trial court with directions to subpoena the remaining 10 jurors and conduct a further hearing to resolve the doubt. Therefore, I respectfully dissent.

*

In his declaration, juror 301 described what happened in this way:

"2. My recollection of the case includes the following:

"a. The mother took a deal and testified against Mr. Johnson. The mother did not get emotional on the stand and it did not seem like she cared about what happened with her baby.
"b. The mother seemed dishonest and her timeline of events did not match up. Her story was weird and I recall a portion of her testimony when she thought the baby's temperature was normal when it measured 94.1 degrees. This is a radio station and I could not believe she thought this was a normal reading.
"c. At one point during the mother's testimony she got into an argument with one of the attorneys and asked to go back to her cell.
"d. The mother and Mr. Johnson had rented a video game and drove around like everything was normal while the baby was burned.
"e. Regarding jury deliberations, jurors were instructed not to discuss the case at all before deliberations and jurors abided by the instruction.
"f. On the first day of deliberations, jurors took an anonymous vote shortly after entering the jury room. I do not recall the exact number but the count was approximately half for guilty and half for not guilty.
"g. After the first vote, jurors started to discuss the case. Jurors discussed whether or not Mr. Johnson knew about the baby's burns and broken bones. I asked the other jurors 'why would he (Johnson) not testify, if he did not have anything to hide?' One of the other jurors responded, 'yea, that's a good point.' Another juror responded 'maybe that's why he did not testify.'
"h. Jurors wanted to know his (Johnson's) side of the story. All jurors knew about Mr. Johnson is what everyone else told them. The mother claimed that Mr. Johnson threw the baby

during a fight the night before. A large part of the defense seemed to involve the position that Mr. Johnson was unaware of the baby's injuries. Several jurors mentioned wanting to hear Mr. Johnson's side of the story, so that they could know his timeline of events.
"i. The People had to prove their case beyond a reasonable doubt and it would have been helpful to the defense if Mr. Johnson told his side of the story.
"j. Regarding other jurors' comments, an older, female juror asked 'how come he did not testify? I would have wanted to hear from him.'
"k. Jurors took another vote on the second day and the count was approximately 8 for guilty and 4 for not guilty. It was a frustrating process trying to get other jurors to see the case from another's perspective. The main subject jurors discussed in the jury room was whether or not Mr. Johnson knew about the baby's injuries.
"l. Jurors discussed a video taken from a Rite Aid of Mr. Johnson and the mother buying burn cream. The video demonstrated that Mr. Johnson knew about the baby's burns.
"m. On the last day of deliberations, there was a male and female juror who said they could not make a decision without having heard from Mr. Johnson. Although the People did not prove that [he] was aware of the baby's injuries, the defense did not prove he was not aware.
"n. Two jurors wanted to send a note back to the judge stating they could not come to a decision. Eventually, the two jurors were persuaded Mr. Johnson was guilty by association since he did not do anything to stop what happened to the baby."


At the hearing, the court ruled that only the following portions of this declaration were admissible under Evidence Code section 1150, subdivision (a): paragraph 2.g., starting with the third sentence; paragraph 2.h., starting with the fifth sentence; paragraph 2.j.; and the first sentence of paragraph 2.m.

"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, of such a character as is likely to have influenced the verdict improperly. No evidence is 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 verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).)

The court actually stated it was admitting only the portion of paragraph 2.j. beginning with the quotation ("how come he did not ..."), but this does not make sense. What is admissible is the fact that the other juror made this statement, and we assume that is what the trial court meant to say.

In his testimony, juror 301 confirmed that, during deliberations, he asked: If Johnson "didn't have anything to hide, why did he not testify?" The other jurors "were just kind of in agreeance a little bit." Some nodded and others said they agreed. Some "made comments to the effect of ... if he didn't have anything to hide, maybe that's the reason why he didn't testify." An older female juror said "how come he didn't testify? I would have wanted to hear from him." Juror 301 also remembered the foreman saying it would have been nice to hear from Johnson. This discussion took about five minutes at the beginning of deliberations and the subject did not come up again. No one ever said Johnson should be found guilty because he did not testify.

Juror 301 gave contradictory testimony about the statement in paragraph 2.m. of his declaration that on the last day of deliberations, a male and female juror said they could not make a decision without hearing Johnson testify. Juror 301 testified that he did not remember hearing that, but he also testified that his declaration was accurate.

The jury foreman's declaration stated:

"2. My recollection of the case includes the following:

"a. I served as foreperson of the jury[.]
"b. Toward the beginning of deliberations I shared with other jurors that I would have liked to have heard from Mr. Johnson.

"c. A couple other jurors also stated that they would like to have heard from Mr. Johnson, and the rest of the jurors nodded in agreement with the statement.
"d. Mr. Johnson's failure to testify left an empty spot in the defense case.
"e. Defendant's failure to testify was significant to me."

This sentence was altered by means of a somewhat confusing interlineation. The version presented here appears to be what was intended. --------

The court ruled that only items 2.b. and 2.c., and the fact that this juror was the foreman, were admissible under Evidence Code section 1150, subdivision (a).

The foreman testified at the hearing that on the first day of deliberations, either before or after he was elected foreman, he expressed to the other jurors a "wish" that he could have heard Johnson's "side of the story from him personally." Some of the other jurors nodded their heads when he said this. Under direct examination by the prosecutor, the foreman equivocated about whether it actually was he who said it, but on cross-examination by defense counsel, he confirmed that it was. His remark and the nodding occupied less than a minute of the jury's time.

The foreman explained that he made this remark at a time when he was experiencing relief from the pressure of having not been allowed to discuss the case. "I was, I guess, venting in a sense. Where it was, like, I was finally able to talk to other people about it kind of a thing. And I think that's just kind of it. It was an off remark." He said he was aware at the time that the jury instructions prohibited consideration of the fact that Johnson did not testify. Although other jurors nodded, "it wasn't something we dwelled upon." When the jury was discussing the evidence and the law, no one said they should consider Johnson's failure to testify. No one stated that it would be improper to consider it either, however.

The foreman confirmed that he "might have heard" another juror saying "why would he not testify if he didn't have anything to hide?" He was not sure on what day this might have happened, but thought it was toward the beginning of deliberations. He did not recall anyone saying "[y]eah, that's a good point," or "maybe that's why he didn't testify." He also did not remember any juror saying he or she could not decide without hearing from Johnson. This might have happened, but he did not remember.

In its written ruling, the trial court found the evidence showed that, during deliberations, some jurors discussed Johnson's failure to testify. This was a violation of the jury instructions and constituted misconduct. The court recited the rule that such misconduct gives rise to a presumption of prejudice.

The court formulated the standard for determining whether the presumption has been overcome as follows: "[The presumption of prejudice] may be rebutted by an affirmative evidentiary showing that prejudice does not exist, or by an examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct."

Turning to the record, the court observed that the foreman and juror 301 were in agreement that there was discussion at the beginning of deliberations that lasted no more than a few minutes, during which they and other jurors indicated to one another that they would have liked to hear Johnson's testimony. The foreman said the jury did not dwell on the point. The court also averred that the foreman said the jurors did not consider Johnson's failure to testify in their deliberations. This appears to be a characterization of the foreman's testimony that no one said they should consider it.

Regarding the statement in juror 301's declaration that, toward the end of deliberations, two jurors said they could not reach a verdict without hearing testimony from Johnson, the court pointed out that juror 301 did not remember this by the time he testified. The court further pointed out that, at the hearing, both jurors said there was no discussion of the matter after the first day of deliberations. The court found that this amounted to a conflict in the evidence and required a credibility determination. It found the live testimony "carr[ied] more weight" than the statement in juror 301's declaration.

Citing paragraph 2.g. of juror 301's declaration—the statements that juror 301 suggested Johnson would have testified if he had nothing to hide, and that other jurors echoed this sentiment—the court concluded that these statements evidenced no more than "transitory comments of wonderment and curiosity" and therefore did not show prejudice.

Having described the evidence in this way, the court observed that a mere wish that a defendant had testified, or a mere expression of curiosity about the lack of testimony, was not the same as drawing negative inferences from the lack of testimony. It concluded:

"There is no evidence to support a finding that there was a substantial likelihood that the defendant suffered actual harm in this case. There is no evidence to suggest that any juror was impermissibly influenced by the statements regarding the defendant's failure to testify, or expressed any desire to convict him because he did not testify."


On this basis, the new trial motion was denied.

*

To rebut the presumption of prejudice arising from a finding of juror misconduct, "the prosecution must ... demonstrat[e] 'there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment.'" (People v. Gamache (2010) 48 Cal.4th 347, 397.) Whether this demonstration has been made is a mixed question of law and fact, which we review de novo, except that we accept the trial court's credibility determinations and findings on questions of historical fact, if supported by substantial evidence. (People v. Danks (2004) 32 Cal.4th 269, 303.)

A "substantial likelihood" is the same as a "reasonable probability," and a reasonable probability means not "more likely that not," but only "a reasonable chance," or "more than an abstract possibility." (In re Cowan (2018) 5 Cal.5th 235, 248; Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) If there is a substantial likelihood that even a single juror was actually biased as a result of the misconduct, then we must reverse the trial court's ruling, even if we are convinced that an unbiased jury would have reached the same verdict. (People v. Hensley (2014) 59 Cal.4th 788, 824.)

In this case, even assuming the trial court's evidentiary rulings and credibility determination were correct, the record does not rebut the presumption of prejudice. Juror 301 asked rhetorically why Johnson would not testify unless he was hiding something. This amounted to a suggestion that perhaps he was hiding something. This "something," of course, could not have meant just anything; the point of the remark, under the circumstances, could only have been that Johnson might be hiding facts tending to show his guilt. Several other jurors indicated their agreement in words or gestures. (The foreman had some recollection of juror 301's remark, but was unsure when it was said or who said it. He did not remember other jurors making similar statements, but did not deny they were made.)

The trial court viewed these remarks as mere expressions of curiosity and wonder, but that interpretation is untenable. Juror 301 and the jurors who agreed with him did not merely wonder why Johnson did not testify. In reality, they speculated aloud that he might have avoided testifying to hide evidence of his guilt. This is precisely the sort of inference jurors are forbidden to make from a defendant's exercise of his Fifth Amendment privilege against self-incrimination.

The fact that the matter did not come up again after the first day of deliberations—if it is a fact—does not show that it did not influence the jury. To the contrary, it could easily have influenced all their subsequent deliberations, given that no one ever pointed out that this was an improper matter to consider. The fact that the discussion took a short time also does not show it was not prejudicial.

In sum: The evidence that the foreman, juror 301 and several other jurors all discussed Johnson's failure to testify showed misconduct. The uncontroverted evidence that juror 301 and several other jurors spoke of the possibility that his failure to testify indicated concealment of guilt strongly reinforced the likelihood of prejudice because it went directly to the heart of the privilege's purpose. None of the other facts, including the briefness of the discussion on the first day of deliberation and its failure to reoccur, suffice to rebut the presumption. There is no evidence that any juror interjected that Johnson's failure to testify could not be considered. Neither any affirmative evidence nor the record considered as a whole can reasonably be found to have rebutted the presumption of prejudice.

The trial court, the People, and the majority opinion all rely on People v. Hord (1993) 15 Cal.App.4th 711, 727-728, in which the presumption of prejudice was raised and rebutted. In that case, jurors made remarks to one another during deliberations about the defendant's failure to testify. One said, "[Y]ou don't say anything to protect yourself." Another said "maybe things would have been different" if the defendant had testified, and later stated in a declaration his "opinion that if a man did not do what he was accused of he should say so." (Id. at pp. 721-722.) These remarks are similar to those made in Johnson's case, but there is a crucial difference: In Hord, the foreman interrupted the jurors' conversation and said the defendant's lack of testimony had no bearing on his guilt or innocence and could not be considered. (Id. at p. 722.) An admonition like this is the sort of evidence that can rebut the presumption of prejudice. There was no such admonition in this case. Instead, the foreman was one of those who discussed Johnson's failure to testify, despite his awareness that this violated the court's instructions.

The People and the majority opinion cite other cases in which jurors committed misconduct by discussing a defendant's failure to testify, and in which the presumption of prejudice was held to have been rebutted. In none of these cases, however, did the admissible evidence establish both of the two crucial factors that, in this case, support a substantial likelihood that at least one juror was biased by the notion that innocent defendants testify: (1) the jurors openly speculated to one another that the defendant might have refrained from testifying in order to conceal incriminating facts; and (2) no juror at any stage admonished the others that this was not permitted. (See People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425 [jurors said they felt they would have understood defendant better had he testified in penalty phase of capital murder trial, but they did not draw negative inferences]; People v. Manibusan (2013) 58 Cal.4th 40, 58-60 [three jurors said jury discussed defendant's failure to testify; one also said jury reached consensus that defendant would have been damaged by prosecutor's questions had he testified, but this was inadmissible because it described no actual statement and pertained to jurors' subjective reasoning process]; People v. Avila (2009) 46 Cal.4th 680, 725-726 [several jurors said during deliberations that they wondered why defendant did not testify or that if it had been them they would have testified, but other jurors responded that this was a matter they were forbidden to consider].)

The only concrete argument the majority opinion makes about why those two factors are not key is that the uncontroverted portion of the evidence showed only that multiple jurors made unchallenged remarks on the incriminating nature of Johnson's silence at the beginning of deliberations; the evidence that they did so again at the end was in conflict and was rejected by the trial court. But this is not sufficient to rebut the presumption of prejudice. There is no reason to suppose improper conduct that itself gives rise to the presumption also simultaneously rebuts it just because of when in the deliberations it took place. The jurors obviously did not forget about these remarks over the five days of their deliberations. Those who testified still remembered years later when asked about them at the hearing.

At one point, the majority opinion appears to forget entirely about the direct, uncontroverted testimony that jurors spoke to one another of the possibility that Johnson did not testify because he was hiding something: "Although misconduct occurred, nothing reasonably suggests the jury drew adverse inferences against [Johnson] in violation of his constitutional right not to incriminate himself." (Ante at p. 20, italics added.) This characterization of the evidence is simply mistaken. The inference that Johnson was hiding something was an adverse inference in violation of his constitutional right not to incriminate himself, and the testimony—referring directly to the possibility that he did not testify because he was hiding something—reasonably suggests jurors drew that inference.

Effectively conceding that there was no affirmative evidence to rebut the presumption of prejudice in this case, the majority opinion relies on the rule that the record as a whole can rebut the presumption even when it is not possible to point specifically to any such affirmative evidence. But the majority opinion contains no persuasive explanation of how the record as a whole rebuts the presumption of prejudice raised by the jurors' discussion of Johnson's possibly guilty silence. It cannot be that the misconduct itself was trivial ("merely expressing [a] wish," as the majority opinion puts it, for instance (ante at p. 19)), for the jurors' clear spoken implication that Johnson might have testified had he not been guilty struck at the core of the Fifth Amendment privilege against self-incrimination.

It cannot be that the jurors also discussed the evidence and the law, as the majority repeatedly points out: The constitutional bar is not so low that the presumption of prejudice is dispelled as long as the jury was not utterly derelict in its duty, as it would be had it not discussed the evidence and the law.

It cannot be, as the majority opinion contends at length, that the jury labored over its verdict and made some findings in Johnson's favor. A swift verdict in which all decisions go against the defendant is not the only kind of outcome that is consistent with bias. For one thing, it must be remembered that a reasonable chance that a single juror was actually biased mandates a new trial; and one biased juror would not speed up the deliberations of the other 11. Furthermore, the jury's apparent struggle tends to show only that the case was, in some respects, close: Each parent pointed the finger at the other, and either or both could have been primarily responsible for the child's death. Defense counsel urged the jury to find Johnson guilty only of count 3 (willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering, under circumstance likely to produce great bodily injury or death), on the theory that the mother inflicted all the injuries, Johnson was asleep while she was administering the beating that caused the baby's death, and he was responsible only for failing to get medical treatment for the accidentally-inflicted burns. Consequently, much depended on which account the jury found more convincing, under circumstances where both accounts were suspect. That fact pattern is consistent with slow deliberations even by a jury including some members biased by the defendant's silence. It also is a fact pattern in which the ultimate result is apt to be highly sensitive to bias arising from the constitutionally disallowed notion that an accused should speak up for himself, and could be motivated by a wish to hide his guilt if he does not. That notion could tip the balance against a nontestifying defendant. The jurors' remarks in this case indicated that they were exposed to this kind of influence.

Nor can the explanation for the majority's conclusion be that all the above factors put together overcome the presumption of prejudice. None of them has any significant tendency in reason to show every juror was free of a reasonable chance of bias.

*

A verdict cannot be overturned just because jurors might think a defendant did not testify because he is guilty. That would be demanding too much of human nature. But the law draws the line at jurors speaking to each other about this explanation for a defendant's silence. If it is established that they did, there must be a showing that there is no reasonable probability that even one of the 12 jurors was biased by it, or else the verdict cannot stand. The California Supreme Court has remarked that the courts' analyses of such attempted showings cannot be formalistic or mechanical—they must be "'pragmatic'" and go beyond being "only ... objective." (Lavender, supra, 60 Cal.4th at p. 688.) This does not suggest we should find misconduct harmless when the record shows overt jury discussion of a connection between a defendant's silence and his guilt and contains nothing of substance that would show an absence of bias arising from this. In the very same case—as I mentioned above—our Supreme Court also stated: "It may often be the case, though, that juror comments that go beyond mere wonderment and curiosity [and extend into an inference of guilt from a defendant's decision not to testify] may need stronger affirmative evidence—such as a reminder of the court's instructions not to consider the forbidden topic—to show that prejudice does not exist." (Id. at p. 690.) This is indeed such a case. There was no such reminder and no other "stronger affirmative evidence."

In my view, for the above reasons, the record—as a whole and in each of its parts—is consistent with, and so does not rebut, the presumption of prejudice. Johnson's new trial motion thus was denied in error.

*

The underlying facts are grisly and disturbing and no one should minimize them. Nonetheless, they have nothing to do with the undisputed juror misconduct. The record before us is consistent only with reversal of the trial court's denial of Johnson's new trial motion. If there were doubt as to the impact of the misconduct, the proper disposition would be a remand with directions to subpoena the remaining 10 jurors, hold another hearing, and permit Johnson to file another new trial motion. If there was not enough evidence to warrant granting the present new trial motion outright, surely there was more than enough to require additional inquiry. In addition to holding that the present motion ought to have been granted, I also would hold that, given its denial, the trial court abused its discretion in declining Johnson's request to bring the other 10 jurors in for a further hearing.

/s/_________


SMITH, J.