Lead Opinion
Opinion
In People v. Nesler (1997)
The Court of Appeal majority determined that, in such circumstances, the trial court’s order is reviewed for abuse of discretion, with deference to its assessment of prejudice. Applying that standard, the Court of Appeal affirmed the order granting a new trial. The standard of review adopted by the Court of Appeal comports with the long-standing principle that an order granting, as opposed to denying, a new trial is reviewed liberally, particularly with regard to the trial сourt’s finding that an error or irregularity in the original trial was prejudicial. We find no compelling reason to depart from this principle where the error or irregularity is conceded, and prejudice is the only disputed issue, even if the assessment of prejudice involves a mixed question of law and fact.
We therefore confirm that when a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it constituted an abuse of discretion.
FACTS AND PROCEDURAL BACKGROUND
An information charged defendant with 13 counts of sexual misconduct involving three girls. Counts 1 through 10 alleged defendant had committed lewd and lascivious acts against Stephanie C. (Stephanie), a child under 14, between January 1998 and October 2000. (Pen. Code, § 288, subd. (a).)
Count 6 charged a vaginal touching in a swimming pool. Count 7 alleged that defendant kissed Stephanie while they were in her bedroom. Counts 8 through 10 related that defendant touched Stephanie’s vagina, and twice had her touch his penis, while they were at the beach.
At trial, Stephanie testified concerning each of counts 1 through 10. As to counts 4 and 5—the only ones that resulted in convictions—her testimony was as follows; On September 14, 2000, her brother’s birthday, while her parents were in Europe, defendant picked her up after school, took her to his apartment, and showed her paint balls. Then he brought her into the bedroom, lay on her, kissed her, and asked her to undress. He left the room while she removed her clothing and slipped under the covers. He returned, again lay on her and kissed her, and told her she could put a pillow over her face if she was embarrassed. She did so. Defendant told her he had put his finger in her vagina and said he liked it when she got wet. He asked her not to tell or he would go to jail. He also had her touch his penis. After she dressed, she sat on his lap while he showed her pornographic pictures on his computer,
Stephanie explained that she thought of defendant, a 35-year-old man, as her boyfriend, but felt guilty and embarrassed about the molestations. They came to light after she had a fight with her “grammy,” who was caring for her while her parents were in Europe. These problems led to Stephanie staying with a teacher and family friend, Kym T. (Kym). Kym asked Stephanie if defendant kissed her. Stephanie first said no, but after Kym related her own molestation experience, Stephanie admitted some of the conduct with which defendant was later charged. Kym testified that she confronted defendant, who neither denied the molestations nor called Stephanie a liar. Stephanie admitted at trial that the day before she talked to Kym, she was angry with defendant because he failed to give her a ride home from school.
Stephanie’s preliminary hearing testimony omitted reference to several significant incidents and details, which she remembered only a few days before trial. There was evidence that her embarrassment, and her developmental disabilities, including an expressive language disorder, may have hindered her in disclosing the molestations sooner.
At the close of the prosecution’s case, the court granted defendant’s motion for acquittal (§ 1118.1) as to counts 6 and 7. At the same time, the court acquitted defendant of one of the counts involving the other alleged victims.
Defendant testified in his defense, denying each incident of molestation. He insisted he firmly denied to Kym that he had molested Stephanie. There was evidence that the alleged molestations prior to the baseball game could not have occurred at the time of year when Stephanie said they did. Several witnesses testified that at hеr brother’s September 14, 2000, birthday party, which allegedly took place just after the incidents charged in counts 4 and 5, Stephanie’s behavior and demeanor were entirely normal. Though defendant admitted he had pornographic images on his computer, an expert testified he found no evidence these images were accessed between 1:00 p.m. and 7:00 p.m. on September 14, 2000.
The jury convicted defendant on counts 4 and 5,
In ruling on defendant’s juror misconduct claim, the trial court first found that misconduct had occurred, as follows: “Juror [No. 2] spoke to an outside source (her manicurist) about the trial while [it] was still pending [,] [and] she received outside information from that source about how a molested child may act normally after the molest. Then she used this information to influence the other jurors during deliberations when they were discussing thе victim’s credibility.” These actions violated the oft-repeated admonitions not to discuss the case with nonjurors, or to consult outside sources of information, and not to share information gained from such sources with other jurors during deliberations. “The totality of these events amounts to juror misconduct.”
The trial court then analyzed the issue of prejudice. The court invoked the test recited in Nesler, supra,
Applying this test, the trial court reasoned that the issue was whether “Juror [No. 2’s] statements about child molestation, judged objectively, amount[ed] to such inherent prejudice that it would have influenced the jury[.] [f] Objectively, Juror [No. 2’s] statements were meant to influence the other jurors. She made them at a time when the credibility of the witness was being discussed[,] and she made [them] for the sole purpose to lend more credibility to the victim’s testimony. Therefore[,] under the first prong of the test, Juror [No. 2’s] statements amount to substantial prejudice. [Citation.]” Accordingly, the court granted the new trial motion.
Applying this standard, the Court of Appeal noted three instances of misconduct: First, Juror No. 2 discussed the case with a nonjuror. Second, she shared with other jurors the information obtained in this conversation, in order to cut off a new juror (the alternate) who tried to rеopen discussion of Stephanie’s credibility, and who expressed doubts on that issue based on Stephanie’s demeanor. Third, as a result, the jury apparently curtailed discussion of credibility concerns, contrary to their instruction to begin deliberations anew after the alternate was impaneled.
Furthermore, the Court of Appeal noted, “[w]e cannot say,” in light of the entire record, that “this is a case where there was no substantial likelihood of prejudice to [defendant].” The Court of Appeal stressed that the case was close, and that defendant was acquitted of eight of the 10 counts involving Stephanie. Moreover, the court pointed out, Stephanie’s demeanor was particularly important with respect to the September 2000 incident that led to the convictions on counts 4 and 5, because she apparently behaved normally at her brother’s birthday party shortly after the alleged lewd and lascivious conduct occurred. The Court of Appeal further observed thаt “the trial court . . . personally witnessed Stephanie’s testimony, and therefore was in a far better position than we are to assess the damaging effect of the manicurist’s story on the issue of Stephanie’s credibility . . . .” The trial court’s prejudice determination, said the Court of Appeal, “[was], at least in part, credibility-based, i.e., based on the trial court’s personal observations of demeanor and the evidence. We believe that such a finding is entitled to at least some deference in assessing whether the presumed prejudicial impact of the jury misconduct was rebutted.”
The dissent argued that whether a new trial was granted or denied for juror misconduct, an appellate court may give deference to the trial court’s factual findings, but must independently assess prejudice, a mixed question of law and fact. Applying that standard, the dissent found no substantial likelihood of actual bias.
The People sought review on the following issues: (1) “What is the appellate standard of review on the question of prejudice when the People seek review from the grant of a new trial motion based on juror misconduct?”
Accordingly, after we granted review, we issued a separate order specifying that “[t]he issue to be briefed and argued is limited to the following: What is the proper standard of review when the People appeal an order granting a motion for a new trial due to juror misconduct?” In addressing that issue, we confine our analysis to the prejudice component of the trial court’s ruling.
DISCUSSION
A criminal defendant may move for a new trial on specified grounds. (§ 1181.) Among these are trial or instructional error, or prosecutorial misconduct (id., subd. 5), a verdict contrary to the law or facts (id., subds. 6, 7), newly discovered evidence (id., subd. 8), and juror misconduct (id., subds. 3, 4), including the jury’s “recei[pt] [of] any evidence out of court” (id., subd. 2). The defendant’s right to seek a new trial in a criminal case parallels that of the losing party in a civil matter to seek a new trial on specified grounds affecting the fairness of the prior proceedings. (See Code Civ. Proc., § 657.)
Innumerable cases, both civil and criminal, have said that the trial court has broad discretion in ruling on a new trial motion, and that the ruling will be disturbed only for clear abuse of that discretion. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 123-124, pp. 153-155, and cases cited; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 143, p. 644, and cases cited.) But refinements to this general rule have developed.
A series of decisions, both civil and criminal, have distinguished sharply between orders granting, and orders denying, a new trial. These cases state the relevant distinction in two ways. Some hold that the deferential abuse-of-discretion standard is particularly applicable to an order granting a new trial, as opposed to one denying such relief.
Courts have given several reasons for the distinction. The deference due orders granting new trials is commonly justified on grounds that “[t]he trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. . . . The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial .... Review is limited to the inquiry whether there was any support for the trial judge’s ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion. [Citаtions.]” (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 143, p. 644; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 412, p. 463.) Moreover, we emphasized in Malkasian, supra,
Different considerations apply, it is said, when a trial court denies a new trial. Such an order is not independently appealable (§ 1237; Code Civ. Proc., § 904; see, e.g., People v. Henderson (1977)
Courts have stressed the particular need for independent review of the trial court’s reasons for denying a new trial motion in juror bias cases. This is because the reviewing court must protect the complaining party’s right to a fully impartial jury as an “ ‘inseparable and inalienable part’ of the [fundamental] right to jury trial [(U.S. Const., amend. VI; Cal. Const., art. I, § 16)]. [Citations.]” (Andrews, supra,
Of course, the discretion to grant a new trial, while broad, is not unlimited. Before ordering a case retried, the trial court must make its independent determination, under article VI, section 13 of the California Constitution, both that error occurred, and that the error prevented the complaining party from receiving a fair trial. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 412, p. 463, and authorities cited.) Thus, it has been said that the trial court has “no discretion” to award a new trial where no
Nonetheless, the weight of modem California authority is that the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if the reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. (E.g., Jiminez, supra, 4 Cal.3d 379, 387; Malkasian, supra,
In Nesler, supra,
The Court of Appeal affirmed. However, this court reversed, holding that the trial court had erred in concluding there was no substantial likelihood the offending juror’s misconduct demonstrated her “actual bias.” As part of its analysis, the lead opinion statеd the standard of review of the ruling on the motion for new trial as follows; “We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” (Nesler, supra,
In an explanatory footnote, the Nesler lead opinion deemed it well established that “appellate courts . . . conduct an independent review of whether a defendant was prejudiced by juror misconduct.” (Nesler, supra,
The People now urge that an identical standard should apply on their appeal from an order granting a new criminal trial on grounds of prejudicial juror misconduct. While the trial court’s findings of fact constituting misconduct may be entitled to deference if substantially supported, the People insist, its determination that the misconduct was prejudicial—a mixed question of law and fact—requires independent review. We are not persuaded.
The People first insist that under the “modem approach” to standard-of-review issues, appellate courts, regardless of the context, uniformly give independent review to mixed questions of law and fact, or at least those mixed questions that are “predominantly legal.” (See generally People v. Louis (1986)
We need not belabor whether prejudice from juror misconduct is a “predominantly legal” mixed law and fact question. We so identified it in Nesler, supra,
Nonetheless, we conclude that for purposes of this case, we need not depart from the long-established principle of broad deference to trial court orders granting new trials. In our view, the rule of independent appellate review need not apply to a trial court determination that conceded juror misconduct was prejudicial, thus warranting a new trial, even if the prejudice issue is a mixed question of law and fact. Our decision flows from several considerations.
In the first place, as the Peoрle concede, the proper review standard is influenced in part by the importance of the legal rights or interests at stake. (E.g., Cromer, supra,
As was explained in Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998)
Thus, independent appellate review of a mixed law and fact question is crucial when an excessively deferential appellate affirmance risks error in the final determination of a party’s rights, eithеr as to the entire case, or on a significant issue in the litigation. Thus, if a trial court’s determination that juror misconduct was harmless were not reviewed de novo, the risk would arise, in a close case, that the complaining party’s rights had been finally resolved by an unfair trial in which the party was denied the fundamental constitutional guarantee of an impartial jury. By according deference to the trial court on this mixed law and fact issue of constitutional significance, the appellate court would abrogate its own constitutional role (see Cal. Const, art. VI, § 13) to protect the complaining party’s fair-trial rights. (See Nesler, supra,
By contrast, affirmance of a trial court order granting a new trial on grounds that established juror misconduct was prejudicial simply endorses the trial court’s effort to fulfill its responsibility to protect the right to an impartial jury. Even if the trial court has erred on the side of caution in a close case, appellate deference to the court’s determination produces no final victory for either party, but simply allows the matter to be retried before a new jury. For this critical reason, the dеtermination of Nesler, supra,
The People point out that appellate courts independently review mixed law and fact questions, particularly those with constitutional significance, in furtherance of their responsibility to enforce the requisite constitutional standards and to maintain consistency in precedent. (See, e.g., Cromer, supra,
Though assessments of prejudice may, and often do, involve the application of law to facts, they depend heavily on the unique circumstances of the particular case, and usually are “so factually idiosyncratic and highly individualized as to lack any [significant] precedential value.” (Cromer, supra,
Moreover, it is the trial court that has a “first-person vantage” (Thompson, supra,
A trial court’s finding of prejudice is based, to a significant extent, on “ ‘first-hand observations made in open court,’ ” which that court itself is best positioned to interpret. (Cromer, supra,
The People note that in In re Carpenter (1995)
While all intendments traditionally favor a new trial order, habeas corpus is a separate, collateral proceeding that attacks a presumptively valid judgment. “For purposes of collateral attack, all presumptions favor the truth, accuracy and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands .... [Citations.]” (People v. Gonzalez (1990)
However, we have rejected the nоtion that “the [Pjeople’s right to due process of law must be the exact equivalent to a criminal defendant’s right to due process.” (Miller v. Superior Court (1999)
As we have explained, when a trial court denies a criminal defendant a new trial because it concludes that no prejudice arose from juror misconduct, one of the most important reasons why an aрpellate court applies independent review to this mixed law and fact question is to ensure that the defendant’s conviction was not obtained in violation of the fundamental right to trial by an impartial jury. The People suffer no equivalent harm to their fundamental rights merely because they are forced to retry criminal charges after the court in which the original trial occurred has plausibly determined that juror misconduct gave rise to a substantial likelihood of actual bias against the defendant.
Certainly the People, and society at large, have a significant interest in preserving fair convictions. The trial court’s discretion to award a new trial must be exercised with due regard to this important interest. Nonetheless, the People fail to persuade us that they have a due process right—equivalent to the defendant’s right to be free of conviction by a biased jury—to avoid retrying criminal charges before a new jury unless an appellate court comes to an independent conclusion that the trial court’s determination of prejudice from juror misconduct was correct. We therefore conclude that
The People also point to article VI, section 13 of the California Constitution, which provides that “[n]o judgment shall be set aside, or new trial granted,” for trial errors unless “the court,” after examining the entire record, finds a miscarriage of justice. (Italics added.) This provision, the People suggest, requires an appellate court to exercise independent review for prejudice whenever a new trial was granted below. We see no such necessary inference in the constitutional language.
In this case, “the court” that granted a new trial, pursuant to section 1181, is the trial court. Under article VI, section 13 of the state Constitution, that court could not award such relief unless it was satisfied, from an examination of the entire record, that Juror No. 2’s misconduct gave rise to a substantial likelihood of actual bias. (See, e.g., People v. Superior Court (Zamudio) (2000)
But the trial court did not fail in this obligation. The court took evidence, rendered detailed factual findings leading to its determination that misconduct had occurred, and carefully analyzed the issue of prejudice. There is no doubt that, before it ordered a new trial, the court below independently found a substantial likelihood of actual bias arising from Juror No. 2’s misconduct.
The trial court’s constitutional obligation, upon a motion for new trial, to examine the record independently for prejudicial error “changes the approach to [prejudicial] error on appeal, after it has been successfully urged in the trial court.” (9 Witkin, Cal. Procedure, supra, Appeal, § 412, p. 463.) In such circumstances, all presumptions favor the trial court’s order, and prejudice, at least, need not be independently redetermined.
We realize that article VI, section 13 expresses a constitutional policy against unnecessary and wasteful retrials. (See, e.g., People v. Cahill (1993)
On the other hand, trial courts have a strong incentive not to crowd their dockets and squander limited judicial resources by ordering unnecessarily that cases over which they presided, and which have already been taken to verdict, be retried. We are confident that motions for such relief are examined with considerable care.
CONCLUSION
The Court of Appeal majority concluded that the trial court did not abuse its discretion by granting a new trial on grounds of prejudicial juror misconduct. The majority therefore affirmed the order. We agrеe that the majority correctly examined the trial court’s order for abuse of discretion, and was not required to determine de novo whether prejudice arose. That being the sole issue presented for our review, we affirm the judgment of the Court of Appeal.
George, C. J., Kennard, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
All further unlabeled statutory references are to the Penal Code.
The jury found, as the complaint alleged, that count 4 involved substantial sexual conduct with the victim (§ 1203.066, subds. (a)(8), (b)), thus rendering defendant ineligible for probation on that count.
(E.g., Jiminez v. Sears, Roebuck & Co. (1971)
(E.g., Hasson v. Ford Motor Co. (1982)
Article VI, section 13 provides in pertinent part that “[n]o judgment shall be set aside, or new trial granted, ... on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
(E.g., Hasson, supra,
Despite these considerations, the modem authorities are by no means uniform that an order denying a motion for new trial is subject to independent review. A number of our own recent criminal decisions have recited that such an order is reviewed under a “deferential abuse-of-discretion standard” (People v. Navarette (2003)
As the People observe, California and federal cases have deemed the independent review standard appropriate for a diverse array of mixed law and fact questions, often on the ground, among others, that such questions were constitutionally significant and/or “predominantly legal.” (See, e.g., Lilly, supra,
We have emphasized that the existence of misconduct is essentially undisputed in this case, and that the People’s only complaint on appeal is with the trial court’s determination of resulting prejudice. Where an error or irregularity is established, and the only issue is whether the trial court correctly found prejudice, the consequence of a deferential affirmance is only that the party who opposed the new trial motion will have to retry the matter under correct rules of law. In the case before us, the only result is that the People must re-present their evidence before a new jury. Accordingly, we need not and do not consider whether a more stringent standard of review might apply to a trial court’s determination of error leading to its decision to grant a new trial, where the claim of error involved a mixed law and fact issue.
In Aguilar v. Atlantic Richfield Co. (2001)
We realize that, at the time we rendered our opinion denying habeas corpus relief in Carpenter, supra, 9 Cal.4th 634, the conviction and sentence at issue in that case were not yet final on appeal. (See People v. Carpenter (1999)
Of course, when we issue an order to show cause in a habeas corpus matter involving juror misconduct, and appoint a judicial officer to act as our referee to take evidence and make recommendations of fact and law as directed by us, it is well settled that the referee’s report is subject to our independent review. (E.g., In re Hamilton (1999)
As the Court of Appeal dissent suggested, the trial court’s mode of analysis, and particularly its use of terms, did not precisely adhere to the two-pronged test we set forth in Nesler, supra,
As one Court of Appeal recently observed: “A trial court serves as a ‘gatekeeper’ on a motion for new trial. It opens the gate only rarely, a testament to the fact that the vast majority
Two Court of Appeal decisions, while articulating the abuse of discretion standard of review, have emphasized that under article VI, section 13 of the California Constitution, trial courts have no discretion to order new trials unless prejudicial error occurred; the trial courts having apparently failed to consider the issue of prejudice before ordering those cases retried, the appellate courts simply found that no prejudice had arisen and reversed the new trial orders. (Mosesian, supra,
More recently, a single Court of Appeal decision, Romo v. Ford Motor Co. (2002)
Dissenting Opinion
I am not persuaded that the standard of review for prejudice resulting from juror misconduct should be different when the
Let us review the circumstances under which the majority opinion does not apply. It does not apply to a defendant, only to the People. (Maj. opn., ante, at pp. 1255-1256.) It does not apрly to error, as opposed to prejudice resulting from that error. (Id. at p. 1267, fn. 9 [“we need not and do not consider whether a more stringent standard of review might apply to a trial court’s determination of error leading to its decision to grant a new trial, where the claim of error involved a mixed law and fact issue”].) It does not apply to a People’s appeal of an order vacating a judgment on habeas corpus on the ground of juror misconduct. (Id. at p. 1268.) Rather, in apparently all of these situations, independent review will routinely apply.
Suppose the question here involved a defendant’s confession, and the trial court granted a new trial on the ground the confession was involuntary and its admission prejudicial. The People appeal the order granting the new trial motion. Under the majority’s analysis, we would apply independent review to the question of whether the confession was voluntary. However, once the confession was deemed involuntary, because the People, not the defendant aрpealed, we would then consider whether admission of the involuntary confession was prejudicial by applying an abuse of discretion standard. If, however, the trial judge had vacated the judgment on habeas corpus, or if the new trial motion had been denied and the defendant appealed the underlying judgment, we would continue to apply an independent review standard. Little commends such an inconsistent practice.
Rather, as Justice Benke noted in her dissent in the Court of Appeal, according independent review to mixed questions of law and fact is based “on the sound principle that where a constitutional issue is involved, the law requires uniformity, [and] clarity of precedent.” Thus, both People v. Nesler (1997)
The majority attempts to distinguish Carpenter on the ground it involved a habeas corpus proceeding, stating, “While all intendments traditionally favor a new trial order, habeas corpus is a separate, collateral proceeding that attacks a presumptively valid judgment. . . . This presumption against the validity of a collateral attack on a conviction and sentence weighs strongly
Moreover, the majority relies on the fact that “[a] trial court’s finding of prejudice is based, to a significant extent, on ‘ “first-hand observations made in open court” ’ which that court itself is bеst positioned to interpret.” (Maj. opn., ante, at p. 1267.) That is true, however, whether the trial court does or does not find prejudice, and yet the majority does not dispute that when a new trial is denied we exercise independent review on appeal.
In addition, the majority deems critical its view that “[e]ven if the trial court has erred on the side of caution in a close case, appellate deference to the court’s determination produces no final victory for either party, but simply allows the matter to be retried before a new jury.” (Maj. opn., ante, at p. 1266; id. at p. 1267, fn. 9 [“In the case before us, the only result is that the People must re-present their evidence before a new jury”].) Such statements minimize the inherent costs of retrial, i.e., that the pain and trauma to a victim or the family in having to endure a retrial can be substantial, and that neither witnesses nor other persons associated with a criminal prosecution are static. Here, for example, the case involves a teenager, аdopted at the age of five from Russia, who testified against a former family friend regarding a series of alleged molestations. (Maj. opn., ante, at p. 1256.) As a result of the majority’s decision, this young woman will be forced to once again confront the person who violated a position of trust, and relive these experiences, an ordeal that can hardly be characterized as a “simpl[e]” retrial. As the People observe, “Certainly the criminal justice system is equally flawed whether a conviction is improperly set aside for nonprejudicial jury misconduct or whether a conviction is improperly allowed to stand despite prejudicial jury misconduct.”