Defendant moved the trial court for a new trial due to alleged juror misconduct. (§ 1181.) The trial court denied defendant's motion. The court sentenced defendant to prison for a determinate term of two years six months, and an indeterminate term of 50 years to life.
Defendant raises four issues on appeal. First, defendant contends the trial court erred by denying his motion for a new trial. Second, defendant contends the prosecutor erred by arguing the intent required for premeditated first degree murder is akin to choosing a beverage or a meal. Third, in the alternative, defendant asserts his trial counsel was ineffective for failing to object to the prosecutor's argument about intent. Fourth, defendant asserts the trial court erred when it concluded the assault sentence must be served consecutive to the murder sentence. We reverse the judgment.
A. PROSECUTION'S CASE
Donald Allen Woodward, Sr., was defendant's mother's boyfriend. Woodward had a construction business-he performed stucco work. On one occasion, Woodward worked as a subcontractor for defendant's construction company. Woodward and defendant agreed Woodward would perform stucco work on a house in Barstow for $2,200. Woodward expected to be paid approximately one week after he completed his work, but he was not paid.
Woodward called defendant once or twice per week to ask about the payment. On one occasion, defendant's wife called Woodward and asked for receipts for material and labor expenses. Approximately three weeks after the stucco work was completed, defendant paid Woodward $1,000.
At Thanksgiving, Woodward spoke to defendant in person. Defendant told Woodward that defendant was paid $1,600 for the stucco work. Defendant was unsure if or when Woodward would receive the remaining $1,200. Woodward offered to work out a payment plan with defendant. The conversation ended in a friendly manner.
After the Thanksgiving conversation, Woodward continued calling defendant approximately once per week to collect the $1,200. On December 3,
After the conversation ended, when Woodward was on his way home, he saw his friend, Andrew Battaglia, who lived on the same street as Woodward. Battaglia was in front of his (Battaglia's) house. Battaglia also performed construction work. Woodward stopped to speak with Battaglia. While Woodward was at Battaglia's home, defendant called Woodward. Woodward spoke to defendant on speakerphone, and Battaglia was nearby.
Defendant was "ranting and raving" about Woodward contacting the Barstow homeowner and son directly. Defendant said Woodward "violat[ed defendant's] job site." Woodward explained he contacted the homeowner to find out why the bill had not been paid in full. During the phone call, defendant faulted Woodward for not giving him an invoice for the stucco work.
Defendant told Woodward to meet him at Hesperia Lake. Defendant told Woodward to come alone. Woodward refused because it was dark outside. Woodward suggested the two meet at a well-lit public place because "[n]obody is going to do nothing stupid there." Defendant continued to demand Woodward meet him by himself at Hesperia Lake. Ultimately, defendant, who was angry, told Woodward to come to defendant's house. Woodward agreed to meet defendant at defendant's house. Woodward believed he was meeting defendant in order to give defendant an invoice.
Battaglia had an invoice book in his truck. Battaglia retrieved a blank invoice for Woodward. Woodward completed the invoice. Eric Brabant arrived at Battaglia's house for the purpose of having dinner with Battaglia. Woodward, Battaglia, and Brabant left Battaglia's house. The three stopped and picked up Lee Keohi, who was Battaglia's friend.
The four men stopped at a liquor store where Woodward purchased an 18-pack of beer. The men then continued to defendant's
Woodward did not believe defendant would shoot anyone. Woodward continued walking toward defendant in order to give defendant the invoice. Defendant struck Woodward with the gun. Woodward fell to the ground. When Woodward fell, Battaglia exited the vehicle and ran toward Woodward. Brabant and Keohi remained in the vehicle. When Battaglia reached Woodward, he squatted, grabbed Woodward's shirt, and attempted to move Woodward away from defendant.
"[A]ll of a sudden," after Battaglia crouched down, defendant shot Battaglia. Battaglia stood up, then fell to the ground. "Seconds" passed between Battaglia squatting down and defendant shooting Battaglia. Defendant went inside his apartment. Battaglia died due to the gunshot. The bullet entered Battaglia's chest, near his shoulder, and traveled in a downward trajectory in Battaglia's body. Such a trajectory was possible if the shooter was standing and the victim was crouching down at the shooter's knees and bending forward at the waist. There was no gunpowder on Battaglia's shirt, which indicated Battaglia was more than three feet away from defendant when defendant shot him.
B. DEFENDANT'S CASE
Defendant testified at his trial. Defendant spoke to Woodward on December 4 at 6:08 p.m. Woodward was angry during the phone call. Woodward told defendant "he was going to get his money one way or another, even if he had to kill [defendant]." Defendant suggested Woodward meet him at Hesperia Lake in order for Woodward to give defendant an invoice. Defendant planned to go to Big Bear with his family on the evening of December 4 followed by fishing at Hesperia Lake, in order to celebrate defendant's birthday, thus defendant and his family would be at the lake if Woodward stopped by.
Woodward declined meeting at Hesperia Lake. Woodward suggested meeting at a local restaurant. Defendant declined. Defendant suggested meeting at the sheriff's station, but Woodward declined. Defendant suggested meeting at defendant's house. No time was scheduled for the meeting. Defendant did not recall telling Woodward to come to the meeting alone.
Defendant stayed home on December 4; he did not go to Big Bear or Hesperia Lake due to the situation with Woodward. After Woodward and
Defendant exited his house, and walked toward Woodward. Woodward grabbed the back of defendant's shirt and said, "Let's do this, mother fucker." Defendant struck Woodward with his hand-defendant was not holding the gun. Woodward fell to the ground. A third person then punched defendant's face. Multiple people surrounded defendant and proceeded to punch and kick defendant. Defendant was punched and kicked all over his body.
Defendant could hear his daughter screaming. Defendant feared for his life and the lives of his wife and children. Defendant removed the gun from his pocket, and in the process of moving it, the gun fired. Defendant was not aiming the gun when it fired and he did not intend to shoot anyone when it fired. After the gun fired, everyone dispersed. Defendant went inside his apartment. Defendant bled "pretty good" from his nose, mouth, and lips as a result of the beating. Defendant did not wash his face prior to law enforcement arriving at his house. A photograph of defendant did not show any blood from a nose injury. Defendant had blood on his boot.
C. PEOPLE'S REBUTTAL
San Bernardino County Sheriff's Sergeant Johnson spoke with defendant at the sheriff's station on December 4. Defendant was asked about injuries he sustained. Defendant complained of a bloody nose, bloody lip, and sore wrist. Sergeant Johnson noticed "one small dot or mark on [defendant's] upper lip." During the booking process, defendant lifted his shirt to reveal his tattoos. At that time, Sergeant Johnson did not see any bruises, scratches, or redness on defendant's arms, back, torso, or face. After defendant was transported to jail, Sergeant Johnson observed defendant change clothes. Defendant did not have any bruises, scratches, or marks on his legs.
A. MOTION FOR NEW TRIAL
1. PROCEDURAL HISTORY
a) Motion
Defendant filed a motion for new trial. In the motion, defendant asserted the jury committed misconduct by considering extraneous information about punishment when deciding whether the killing constituted first or second degree murder.
A declaration by Juror-12
b) Opposition
The People opposed defendant's motion. The People asserted Juror-12's declaration lacked information about what occurred between Juror-3's statement and fellow jurors changing their votes. The People noted that on the second day of deliberations, the jury asked for testimony to be read back, viewed an exhibit, and continued deliberating throughout the day and into a third day. The People contended Juror-12 was speculating that Juror-3's statement caused the jurors to change their votes.
c) Hearing
The trial court held a hearing in which all 12 jurors testified.
Juror-10 said the jury discussed punishment during their deliberations. Juror-10 believed a fellow juror may have estimated the length of the prison terms for first degree murder and second degree murder. The juror who spoke about prison terms said a second degree murder conviction could cause defendant to have "a short sentence compared to first degree." Juror-10 recalled that another juror said the jury was not to consider information that came from outside the court.
Juror-11 heard a fellow juror, during deliberations, say defendant may not be sufficiently punished if defendant were convicted of second degree murder. Juror-11, who was the jury foreperson, immediately responded that the jury should not consider information from outside the court.
Juror-12 heard a fellow juror, during deliberations, say defendant may not be sufficiently punished if defendant were convicted of second degree murder. Juror-12 did not hear another juror say such information should not be considered.
The trial court said it believed, based upon the evidence, "there was some discussion" during the jury's deliberations-implying the court found the jury did discuss the length of possible prison terms. The court said the next issue is "what does that mean?" The court suggested the attorneys submit supplemental points and authorities.
d) Supplement to Defendant's Motion
Defendant submitted a supplement to his motion. A declaration by defendant's wife (Wife) was included in the supplement. Wife declared that she was sitting in the courthouse hallway when the jurors were being examined. Wife saw one of the jurors, one of the first to be examined,
e) Supplement to Opposition
The prosecutor submitted a supplement to the opposition. The prosecutor asserted any misconduct was not prejudicial. The prosecutor asserted "only a few jurors" recalled hearing a comment about punishment, and both Juror-11 and Juror-12 said they told their fellow jurors such outside information should not be considered. The prosecutor asserted that under these facts prejudice was not shown.
f) Hearing
The trial court held a hearing on defendant's motion. Defense counsel asserted the juror who told the other jurors to respond "no" to the court's questions was the same juror who stated defendant would not serve prison time if convicted of second degree murder. The prosecutor asserted there was nothing sufficiently identifying the juror(s) who made the complained-of remarks. The trial court found defendant received a fair trial and denied defendant's motion. The trial court did not state its reasons for concluding defendant received a fair trial.
2. ANALYSIS
a) Contention
Defendant asserts the trial court correctly found the jurors discussed the length of defendant's possible prison terms, but the trial court erred by concluding the trial was fair. The People concede juror misconduct occurred, but assert the presumption of prejudice was successfully rebutted.
It is unclear whether the trial court found misconduct occurred. The trial court found a discussion about sentencing took place amongst the jurors and the court concluded defendant's trial was fair. It is possible the court found the discussion did not rise to the level of misconduct. It is also possible the court found the discussion constituted non-prejudicial misconduct. Because the People concede misconduct occurred, we will focus our analysis on the issue of prejudice.
b) Law
The law concerning prejudice lacks clarity. In some cases, there is a focus on the presumption of prejudice that arises when misconduct is found. In
Yet, in other cases, the focus is on the need for a showing of substantial prejudice and whether it has been shown the prejudice was sufficiently substantial. (
Our understanding of the law is as follows: Juror misconduct raises a presumption of prejudice. The People may rebut the presumption by showing no prejudice actually resulted from the misconduct. ( Hitchings , supra ,
The prejudice analysis raises mixed questions of law and fact. The trial court's factual findings are accepted if they are supported by substantial evidence. The trial court's ultimate finding concerning prejudice is reviewed de novo. ( Ramos , supra ,
c) Rebuttal of the Presumption
The "presumption of prejudice ' "may be rebutted by an affirmative evidentiary showing that prejudice does not exist." ' " ( Hitchings , supra ,
In Dykes , during death penalty deliberations, the jurors commented on instances they had heard of where people had been sentenced to life without the possibility of parole, but were ultimately released from prison. Some jurors " 'said that if they gave [the defendant] the death penalty, it was possible that he would never get executed, but it would certainly be harder for him to get out of jail and certainly a harder punishment." ( Dykes , supra ,
Moving toward the middle of the scale are cases where the discussion of extraneous information constituted misconduct,
Moving to the far/other end of the scale there are cases where the misconduct has been found to be prejudicial. ( Stankewitz , supra ,
Our review of the foregoing cases leads us to the following understanding. The gravity of the misconduct correlates with the amount of proof necessary to rebut the presumption of prejudice. The seriousness of the misconduct can be evaluated by looking at (1) whether the jury was discussing an issue within the scope of their duties, e.g., discussing sentence information during penalty deliberations or during guilt deliberations; (2) whether the extraneous information appeared to come from a person with authority, e.g., a police officer; (3) whether it was an abstract discussion or if the defendant was discussed directly, e.g., an abstract discussion about the cost of imprisonment versus a discussion about imprisoning the defendant; and (4) the length of the discussion concerning the extraneous information.
First, in the instant case, extraneous information about sentencing was discussed during the guilt phase of the proceedings. In the context of this case, that factor raises the seriousness level of the misconduct because at least one juror was using irrelevant sentencing information to determine guilt. Second, the extraneous information was presented by a person who appeared to have some authority on the subject. The juror claimed her knowledge was derived from experience working in a prison.
Third, the discussion was personal to defendant. The juror said "[Defendant] could 'walk tomorrow' with time served," if he were convicted of a crime less than first
The People contend they successfully rebutted the presumption of prejudice. The People assert the jury was instructed to base its verdict only on the evidence received at trial, and that when the comment about punishment was
The problem with the People's evidence is that Juror-1 heard the statement about punishment, but did not hear anyone say such information should not be considered. Given the seriousness of the misconduct, the People need to provide more evidence to affirmatively show no prejudice occurred. Reliance on an admonition that was not heard by all the jurors is insufficient.
The People also rely on the instruction given by the trial court informing the jurors that they are not to consider punishment. The People's reliance on this instruction is problematic. The People have conceded misconduct occurred. Thus, the People have conceded the jurors violated this instruction. Pointing to the instruction that was violated as proof that prejudice did not arise from the violation is unpersuasive because, since the People concede there was misconduct, the jurors did not follow the instruction.
The People rely on People v. Leonard (2007)
The instant case is distinguishable from Leonard . In Leonard , the jury was discussing sentencing during penalty deliberations. In the instant case, the jury was using sentencing information to decide issues of guilt. In Leonard , the jury had an abstract discussion about the cost of life imprisonment versus the death penalty. In the instant case, the jury discussed how defendant, in particular, would not serve a prison term if he were convicted of anything less than first degree murder. Also, in the present case, the information about sentencing came from a person who claimed to have knowledge of the subject based upon experience working in a prison.
The seriousness of the misconduct in the present case is greater than in Leonard . As a result, an admonition by the foreperson is not sufficient to rebut the prejudice in this case, especially when the admonition was not heard by all the jurors who heard the statement about punishment.
d) Substantial Prejudice
We now examine whether the prejudice is substantial. There are two methods for measuring prejudice: (1) inherent prejudice, and (2) actual bias. If either test shows substantial prejudice, then the judgment must be reversed. ( Danks , supra ,
i) Inherent Prejudice
The first test concerns inherent prejudice. It examines whether " 'the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment.' " ( Danks , supra ,
"In a criminal case, improper reference to penalty or punishment is generally held reversible because such references are irrelevant, the jury is likely to be misled in determining the issue of guilt or innocence upon the basis of such improper considerations, and, if permitted, it would lead to involvement in collateral matters the probative value of which, if any, would be far outweighed by the prejudicial effect thereof." ( People v. Allen (1973)
If, during trial, it had been said that only a conviction for first degree murder would result in a prison sentence of any significance, admission of the statement would be error because the statement would cause the jury to consider the irrelevant issue of punishment when determining guilt or innocence. In other words, the evidence would be prejudicial because it risks the jury confusing its task of fact-finding with the court's task of sentencing defendant. The evidence would have no probative value because the jury is not tasked with sentencing defendant. Accordingly, it would have been error to admit such a statement.
The prosecutor argued defendant premeditated the killing of Battaglia by arming himself with a gun, taking the gun from his pocket, pointing the gun at Battaglia, and firing the gun. The prosecutor did not argue transferred intent, i.e., it was not argued that defendant premeditated the murder of Woodward and accidentally shot Battaglia. (See People v. Shabazz (2006)
The theory of premeditation as it relates to Battaglia is weak. " 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.' " ( People v. Casares (2016)
There is no evidence indicating defendant knew Battaglia would be coming to defendant's house, such that defendant was preparing to kill Battaglia or reflecting on killing Battaglia prior to Battaglia's arrival at the house; the theory of premeditation is that it occurred in the moment.
The most favorable evidence for premeditation and deliberation is Keohi's testimony that from the time Battaglia exited the car, until the time that defendant shot Battaglia, "a couple of minutes" passed. In interpreting the evidence in a manner favorable to finding premeditation and deliberation, one can infer that as Battaglia was running toward Woodward, defendant continued to strike or attempted to strike Woodward; when Battaglia arrived to Woodward's side, Battaglia pushed defendant away; Battaglia crouched down, and defendant shot Battaglia. Brabant estimated that seconds passed between Battaglia crouching down and defendant shooting Battaglia.
The statement about punishment, if it had been introduced at trial, would have necessitated reversal of the judgment. As a result, the misconduct is inherently prejudicial.
ii) Actual Bias
As explained ante , there are two methods for measuring prejudice. If either test results in a finding of substantial prejudice, then the judgment must be reversed. ( Danks , supra ,
A juror, possibly Juror-3, said during deliberations that she worked in a prison and therefore knew that if defendant were convicted of a crime less than first degree murder then he "could 'walk tomorrow' with time served," but if defendant were convicted of first degree murder then he "would be far less likely to get time served." Another juror, possibly Juror-2, immediately said, " 'I don't want that.' " In the next round of voting, the juror who said, " 'I don't want that' " changed his vote to first degree murder.
If the juror who made the statement about punishment were not influenced by her experience working in a prison, then she would not have shared the
The record reflects a substantial likelihood that the juror who made the statement about punishment was actually influenced by her experience of working in a prison, which caused her to be unable to render a verdict based solely upon the evidence received at trial, given that she shared the sentencing information with other jurors. The juror wanted to ensure defendant received the greatest possible sentence, which required a conviction for first degree murder, regardless of the evidence. (See People v. Nesler, supra ,
e) Summary
The People concede there was juror misconduct. The People failed to rebut the
B. REMAINING CONTENTIONS
Defendant asserts (1) the prosecutor committed misconduct; (2) if the prosecutorial misconduct issue was forfeited, then his trial counsel was ineffective; and (3) the trial court made a sentencing error. We have concluded ante that the judgment must be reversed. As a result, we can provide defendant no further relief by examining the remaining issues. The remaining issues are moot. ( People v. Travis (2006)
The judgment is reversed.
We concur:
McKINSTER, Acting P.J.
SLOUGH, J.
Notes
All subsequent statutory references will be to the Penal Code unless otherwise provided.
The foregoing verdicts were rendered during defendant's second trial. At defendant's first trial, the jury deadlocked on the murder and assault charges and the trial court declared a mistrial.
In the record, jurors are identified by both their juror numbers and their seat numbers. In this opinion, we use the jurors' seat numbers when identifying the jurors.
We exclude from our presentation of the facts statements that relate solely to the mental processes of the jurors because such information cannot be considered. (People v. Danks (2004)
During voir dire, Juror-3 said she had worked at the Victor Valley Medium Correctional Facility. Juror-3 explained that the facility is a level-3/level-4 private prison in Adelanto.