Opinion
The right to a trial by jury is guaranteed by the state and federal Constitutions and is a cornerstone of our legal system. We entrust to 12 jurors the solemn task of judging the credibility of witnesses, evaluating the significance of the evidence, and ultimately determining whether a defendant in a criminal trial is guilty.
Here, a juror ignored these admonitions and violated his sworn duties by speaking on a daily basis about the merits of the case with his nonjuror Mend. After defendant was found guilty, he learned of this juror misconduct and moved for a new Mal. The prosecutor agreed the juror’s conduct constituted misconduct and created a presumption of prejudice, but argued the presumption of prejudice had been rebutted. The court ruled the presumption of prejudice had been rebutted and denied the new Mai motion. On appeal, defendant challenges this and several other rulings.
We conclude the Mai court erred in denying the new Mai motion. Because the conversations with the nonjuror were pervasive, focused on deliberative matters concerning the merits of the case, and included discussions of defendant’s decision not to testify, the misconduct was prejudicial. The conversations interfered with the deliberative process and the right to have the case decided by 12 impartial jurors. When even one juror lacks impartiality, the defendant has not received a fair Mal. The juror misconduct in this case requires that the judgment be reversed.
For guidance upon reMal, we reject defendant’s contention that the Mai court was required to give a unanimity instruction for the continuous-course-of-conduct offense defined in Penal Code
FACTUAL AND PROCEDURAL BACKGROUND
S., the victim in this case, is defendant’s granddaughter.
S. testified that during these incidents, defendant typically rubbed her vagina with his hand, and she rubbed his penis with her hand. On sоme occasions defendant also performed oral sex on her vagina. The molestations occurred virtually every night when defendant was visiting at her residence or she was visiting at his residence. S. recalled that on one visit to her grandparents’ home when she was about nine or 10 years old, defendant came into the room when she was writing in a journal about the visit. Defendant told her “to make sure that [she] never wrote anything down or told anyone because it was [their] little secret.”
S. and her mother recounted two specific incidents that occurred at S.’s house. On one occasion when S. was about eight, she asked her mother if it was “okay” if defendant did not come to her room that evening to say goodnight. S.’s mother, who knew nothing about defendant’s conduct, resрonded that it was important for her grandfather to have his “special time” with her. Defendant then came to her room as usual and molested her. On another occasion when S. was about nine years old, her mother entered her bedroom and unknowingly interrupted the molestation. According to S., defendant was standing by her bed and she was rubbing his penis with “his boxers . . . pulled aside.” S. saw “the light of the door opening,” and defendant sat down on the bed “really fast.” Her mother entered the room, stated it was getting late and S. had to go to bed, and then walked back out. Defendant commented “that was close,” and left the room.
During this second incident, S.’s mother recalled that she had been downstairs talking with her husband and mother. Because it seemed that her father had been upstairs for an extended period of time and she wanted S. to go to sleep, she went upstairs and noticed that S.’s bedroom door was closed, which was unusual. When she opened the bedroom door, S. was lying on her bed on her back with no blankets on and defendant was seated on the side of the bed with his head “pointing down at the floor.” Defendant did not look at her or initially respond; when she walked over to him and put her hand on his shoulder and stated S. needed to go to bed, he mumbled, “just a minute.”
About two years later, in 2005 and early 2006, S. (now aged 14) told two of her friends about the molestation. She also kept a diary during this time period, and on April 23, 2006, wrote: “Therе is something I really want to say. But I don’t know. I’ve told people. But I’ve never put it down in writing. But I reall[]y . . . want to get it off my chest. My poppy [defendant] raped me. He started when I was about 9. I don’t remember how. He never had intercourse & he never kissed me. But we did everything in between. He scarred me for life. I’m not afraid to admit it. But I’m really afraid I’ll end up telling the wrong person & they will tell my mom. Because if she ever finds out, I think it would scar her too. But I think it[’]s important for her to know. But not now. but when? how? Life sucks. What can you do?”
In May 2006, S.’s mother read the April 23 entry without S.’s knowledge. Shortly thereafter, she informed S.’s father about this, and the two spoke with S. S. confirmed that the molestation had happened. She told her parents that she had intended to tell them about the molestation after defendant died because she did not want to upset the family.
In addition to testimony from S. and her mother, the prosecution presented testimony from a number of other witnesses, including S.’s father, the friends in whom S. had confided about the molestation, an investigating detective, an expert witness who explained delayed disclosure and other matters, and (in rebuttal) witnesses who attested to S.’s honest character.
In defense, several family members and friends, as well as an expert witness, testified on defendant’s behalf to support that he did not have the character to molest S. and there were no indications that he had molested S. or any other child. Three of defendant’s other grandchildren (a teenage granddaughter, an adult granddaughter, and an adult grandson), who had all spent the night at defendant’s home, testifiеd that defendant never touched them inappropriately and they never saw anything suggesting he touched any child inappropriately.
Jury Verdict
Defendant was charged with eight sexual offense counts. Count 1 alleged continuous sexual abuse of a child under age 14 from August 20, 1998, to June 30, 2001. (§ 288.5, subd. (a) [three or more acts over a period of not less
DISCUSSION
I. Juror Misconduct
A. Background
After the jury rendered its guilty verdict, defendant moved for a new trial contending that the conviction must be set aside because of juror misconduct arising from Juror D.’s daily discussions about the case with his friend, G.
Defendant submitted declarations from Juror D. and from G. Juror D. and G. declared that they talked “each day at lunch about the case starting the first day of testimony.” Further, every evening (or most evenings) during the trial G. called Juror D. and they talked about the case.
Juror D. described the content of their discussions as follows. After three to four days of testimony he told G. that he thought defendant “was on a sinking ship.” Toward the end of the prosecution’s case, G. told Juror D.: “ ‘[W]e’re looking for a motive [for S. to falsely accuse defendant], and we can’t find a motive yet’ . . . .” The two men discussed different motives S. might have, such as the possibility that defendant was rich and was “cutting . . . off’ S.’s part of the family or that another granddaughter “maybe [was] getting everything and [S.] was not.” During the defense case, Juror D. commented to G. that he did not think defendant was going to testify. In response, G. told Juror D. to consider “OJ” and another high-profile defendant who did not testify and who “ ‘got off the hook’ ” even though they were guilty. Regarding S.’s testimony, Juror D. told G. that a portion of her presentation appeared “staged” and that she was looking down during her testimony.
G.’s declaration essentially corroborated Juror D.’s description of their discussions, and included some additional information. G. declared that he told Juror D. that defendant was guilty if S. did not have a motive for falsely accusing him. Further, he told Juror D. that “guilty people do not testify, and
At the new trial motion proceedings, the prosecution conceded, and the court found, that Juror D. had engaged in misconduct by discussing the case with his friend. However, the court concluded the record showed Juror D. was not biased against defendant because of the misconduct. The court reasoned that Juror D.’s statement that defendant was on “a sinking ship” did not reflect his final conclusion that he was guilty; the consideration of whethеr the victim had a motive to lie was not an improper consideration; it was a normal human reaction to wrestle with the question of why defendant did not testify; ultimately the friend rendered an opinion not to convict based on the insufficiency of the evidence; and the friend’s opinion did not sway Juror D. Accordingly, the court denied the new trial motion.
B. Legal Principles
A defendant has a constitutional right to a trial by an impartial jury. (In re Hamilton (1999)
Further, to preserve impartiality the jury’s deliberative process is shielded from all outside influences. As stated in People v. Bradford (2007)
When the record shows there was juror misconduct, the defendant is afforded the benefit of a rebuttable presumption of prejudice. (People v. Pierce (1979)
Juror bias does not require that a juror bear animosity towards the defendant. Rather, juror bias exists if there is a substantial likelihood that a juror’s verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the defendant. (In re Hamilton, supra,
The question of what constitutes juror bias varies according to the circumstances of the case. (See People v. Nesler (1997)
Ultimately, the test for determining whethеr juror misconduct likely resulted in actual bias is “different from, and indeed less tolerant than,” normal harmless error analysis. (People v. Marshall (1990)
On appeal from a ruling denying a new trial motion based on juror misconduct, we defer to the trial court’s factual findings if supported by substantial evidence, and exercise our independent judgment on the issue of whether prejudice arose from the misconduct (i.e., whether there is a substantial likelihood of inherent and/or circumstantial juror bias). (People v. Nesler, supra,
C. Analysis
The Attorney General concedes the juror’s conversations with the nоnjuror constituted misconduct, and thus a presumption of prejudice arose. Accordingly, the issue before us is whether the presumption of prejudice has been rebutted.
Preliminarily, we note that contrary to the Attorney General’s assertion that we must defer to the trial court’s factual finding that Juror D. was not biased against defendant if supported by substantial evidence, a trial court’s finding
Here, there were no conflicts in the descriptions of juror misconduct that were resolved by the trial court. (Cf. In re Carpenter, supra, 9 Cal.4th at p. 646; People v. Loker, supra,
The juror misconduct at issue here was both pervasive (occurring every single day of thе trial) and substantive (involving deliberative-type discussions about the merits of the case). The discussions between Juror D. and his friend not only violated Juror D.’s sworn obligation to follow the court’s instructions not to discuss the case before deliberations and not to discuss the case at all with a nonjuror (Code Civ. Proc., § 232; Pen. Code, § 1122), but also contravened defendant’s right to 12 jurors free from outside influence (see People v. Pierce, supra,
First, Juror D.’s failure to comply with repeated admonitions not to discuss the case casts serious doubts on his willingness to follow the court’s other instructions. (See In re Hitchings (1993)
This is not a case where a juror inadvertently or briefly mentioned something about the case to an outsider. (See, e.g., People v. Danks, supra, 32 Cal.4th at pp. 307, 310 [no prejudice from brief conversations between jurors and pastors]; People v. Zapien (1993)
Second, the ongoing and improper communications between the juror and nonjuror about the merits of the case fundamentally compromised the integrity of the jury’s deliberative process and undermined the requirement that the jury alone determinе whether a defendant is guilty. The conversations between Juror D. and his friend included discussions about whether the victim had a motive to falsely accuse defendant; the implications to be drawn from the fact that defendant would not likely be testifying; their respective views
Unbeknownst to the prosecutor, defense counsel, and the court, G. was, in effect, a 13th juror who had not undergone the voir dire process to uncover bias. As recognized in People v. Wilson, supra,
The misconduct arising from these daily, deliberative-type discussions improperly interjected the views of a nonjuror—who had not been vetted through voir dire, had not been sworn to follow the law, and had not heard all the evidence—into Juror D.’s consideration of the case. Although Juror D. did not advise his fellow jurors of his communications with his friend, the fact that one juror was improperly influenced deprived defendant of his constitutional right to be tried by 12 impartial jurors. (See People v. Nesler, supra,
Third, the fact that Juror D. and G. discussed the import of defendant’s decision not to tеstify demonstrates that this outside influence was directed to a critical issue and one that was potentially highly detrimental to the defense.
Unlike the situations in Hord, Leonard and Loker, the circumstances of this case show the discussion of defendant’s decision not to testify carried a high potential of prejudice to the defense. In the absence of physical evidence, sexual molestation cases inevitably turn largely on the jury’s evaluation of the victim’s credibility. A defendant is entitled to have all 12 jurors make this evaluation without considering whethеr the defendant took the stand to deny the accusations. The defendant’s silence should not be a factor adding to any inferences that the victim is telling the truth. The fact that Juror D. discussed defendant’s silence with G. reflects that Juror D. considered this factor. Further, the fact that Juror D. repeatedly ignored clear instructions not to discuss the case supports that he equally ignored the court’s instruction not to factor in defendant’s silence when deciding the case. This improper influence obviated defendant’s constitutional right not to have his silence play any role in his conviction.
Juror D. and G. also had discussions concerning whether the victim had a motive to falsely accuse defendant. G. declared that he told Juror D. that unless S. had a motive to make a false accusation, defendant was guilty. Assuming Juror D. heard this statement, this raises further concerns that G.
We are not persuaded that the presumption of prejudice was rebutted merely because G. ultimately opined to Juror D. that he thought there was insufficient evidence to support a guilty verdict. Regardless of G.’s eventual expression of an opinion fаvorable to the defense, the fact remains that during their conversations G. encouraged Juror D. to consider matters that were improper and detrimental to the defense, including the import of defendant’s decision not to testify and that defendant was guilty unless the victim had a motive to make a false accusation.
Contrary to the People’s assertion, the circumstances of this case are not comparable to those in People v. Barton, supra,
We conclude the record shows a substantial likelihood of juror bias. The content and frequency of the communications between Juror D. and his friend strongly suggest an outside influence detrimental to defendant that was tantamount to inherent bias. Even if the misconduct does not rise to the level of inherent bias, the totality of the circumstances show a substantial likelihood of actual bias. Juror bias exists if a juror is incapable or unwilling to decide the case solely on the evidence before him or her. (See In re Hamilton, supra,
Our Supreme Court has made clear that a guilty verdict based on the vote of even one biased juror cannot be sustained, regardless of whether an unbiased jury would havе reached the same result. (In re Carpenter, supra, 9 Cal.4th at p. 654.) “A defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” [Citations.]’ ” (People v. Nesler, supra,
II. Additional Issues upon Retrial
For guidance upon retrial, we address two other issues raised by defendant on appeal.
A. Defense Request to Examine the Victim’s Diary
B. No Constitutional Requirement of Unanimity for Acts Constituting Continuous Sexual Abuse
Defendant contends the trial сourt violated his constitutional rights by failing to give a unanimity instruction for the count 1 offense of continuous sexual abuse of a child under age 14. (§ 288.5.) Section 288.5, subdivision (a) defines the offense as committed when the defendant engages in three or more acts of substantial sexual conduct or lewd acts with the child over at least a three-month period. Section 288.5, subdivision (b) dispenses with the need for the jury to unanimously agree on the same three acts, stating: “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.” Challenging this provision,
As recognized by defendant, in People v. Gear (1993)
To suppоrt his constitutional challenge to section 288.5, defendant cites People v. Jones (1990)
Because Jones does not concern thе continuous-course-of-conduct offense defined by the Legislature in section 288.5, its directive that the jury must unanimously agree that the defendant committed all the acts described by the victim does not apply to this section.
We are likewise unpersuaded by defendant’s contention that the United States Supreme Court’s holding in Richardson v. United States (1999)
To the extent defendant suggests the continuous-course-of-conduct exception runs afoul of the Apprendi
III. Remaining Issues
The judgment is reversed.
McConnell, P. J., and Irion, J., concurred.
A petition for a rehearing was denied March 25, 2010, and the opinion was modified to read as printed above.
Notes
Subsequent unspecified statutory references are to the Penal Code.
To preserve privacy, we refer to various persons involved in this case by their first initials.
Trial testimony was presented over a period of about four and one-half days, and the jury deliberated for about two days.
In Carpenter, the Supreme Court clarified that the strength of the prosecution’s evidence may be exаmined to determine the likelihood of juror bias, but once actual bias has been found the judgment must be reversed regardless of the strength of the evidence. (In re Carpenter, supra,
In contrast, when a trial court grants a new trial based on a finding of prejudice from juror misconduct, the ruling granting a new trial is subject to deference on appeal with no independent review. (People v. Ault, supra,
For example, the court variously stated: “For the time that you’re jurors, you have an obligation not to talk about this case or anything related to this case. It’s part of the process of trying to keep a fair jury.” “I’ve discussed—and will discuss again and again and again—that you can’t talk about the case, you can’t form or express opinions about it.” “Throughout the course of this trial, we have to keep a glass wall around you.” “I’m just going over this to belabоr again—and I will do that regularly each day—how important it is for you not to talk about the case. . .. [<J[] . . . They’re key ingredients of your being fair .. . .” “So folks are going to be curious about what you’re doing. They’ll be asking questions one way or the other expressly, silently. You’re going to feel the instinct—I guarantee—to talk about it, and I’m reminding you that you must not.” “[T]he opportunities for you to talk about this case, you must not accept.”
G.’s declaration states that he told Juror D. that guilty people do not testify, whereas Juror D.’s declaration merely refers to his (Juror D.’s) statement that he did not think defendant would testify and G.’s response that certain high-profile defendants who did not testify were acquitted even though they were guilty. Regardless of the precise nature of their discussion, it is clear they discussed defendant’s decision not to testify.
In the language of CALCRIM No. 355, the jury was instructed: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” (Italics added.)
Juror D.’s declaration refers to a discussion of S.’s possible motives to lie, but does not refer to a precise statement by G. that defendant was guilty unless S. had a motive to lie.
See footnote, ante, page 1105.
The Jones court acknowledged that the Legislature had recently enacted section 288.5, and merely noted that the section could face a due process challenge if the appellate court decisions (disapproved in Jones) were valid. (People v. Jones, supra, 51 Cal.3d at pp. 310-311.)
Apprendi v. New Jersey (2000)
See footnote, ante, page 1105.