*1 Third Dist. 1992.] Jan. [No. C004755. PEOPLE,
THE Plaintiff and Respondent, HILL, SR.,
THARON Defendant and BOB Appellant.
Counsel Thomas, Ross under appointment by the Court of Appeal, for Defendant and Appellant.
John General, K. Van de and Daniel Kamp E. Lungren, Attorneys Richard B. *6 Williamson, and Iglehart General, George Chief Assistant Attorneys Arnold Anderson, O. Overoye General, and Robert R. Assistant Attorneys W. Scott General, and Thorpe Janet G. Bangle, Deputy for Plaintiff Attorneys and Respondent.
Opinion PUGLIA, P. jury convicted defendant of to J. —A commit first conspiracy murder degree Code, 189; by explosive. (Pen. 182, further statutory §§ references to sections of an undesignated Code.) code are to the Penal On to (1) in failing the trial erred: adequately defendant contends court
appeal, instruction, (2) in his denying deal for further jury’s with request considering new trial motion which was based on misconduct alla, affirm, inter holding, issue deliberations. We shall of penalty during (a), which evidence of the section excludes Evidence Code subdivision verdict, has not been to their jurors’ subjective reasoning processes impeach of the California Truth in Evidence” abrogated provision to “Right I, 28, (d)). (art. Constitution subd. § wife, live his estranged came to near early defendant to Chico that, to have failing to with or
Vicky Vicky Hill. Defendant wanted reconcile 20, 1987, violent argument. her On and defendant had a April Vicky killed. thereafter, six seven sticks of dyna- Dalton Moss sold defendant or Shortly mite, and fuse Defendant planned dynamite several cord. blasting caps recom- daughter, Lopes, truck or trailer Defendant’s Shanna Vicky’s home. his In early May Keefe defendant out carry plan. mended John $1,000 dynamite Keefe defendant to paid by for sum of to be agreed some Defendant Keefe Vicky’s Vicky gave trailer home while was inside. not to fuse Keefe decided blasting Subsequently, cord. dynamite, caps home, her dynamite he would trailer but told defendant Vicky’s blow up $1,000 near threw dynamite truck the same fee. On Keefe May truck, where it Vicky’s unoccupied exploded. more still killed. Dalton Moss delivered four Vicky
Defendant wanted for Mike Hoski- Lopes arranged sticks of for defendant. dynamite Lopes 25,1987, On shot son to trailer home truck. June Vicky or dynamite Vicky’s her home. light just as he outside trailer dynamite Hoskison attempted He he died soon ran off short distance where collapsed. Hoskison thereafter.1 denied June 25 May bombing
Defendant involvement Defendant denied an with Keefe to bombing attempt. specifically agreement kill her. dynamite Vicky’s trailer home order to *7 charged jury 1Count 2 of the information with the defendant murder of Hoskison. The acquitted charge. defendant on this person The with another charged “conspire[d] information defendant Explosive.” theory to commit the crime of First Murder Degree by [sic] Keefe, Moss, of the and of whom testified for was that all prosecution Lopes under of were prosecution immunity, coconspirators. grants murder, of first convicting degree defendant to commit conspiracy found two overt and cord acts: defendant obtained fuse dynamite from in supplied Dalton Moss or 1987 and defendant April May of dynamite and fuse cord John Keefe in ofMay to 1987.
I Defendant contends the trial court committed error reversible by failing adequately to to the with respond jury’s apparent difficulty definitions of and “overt act.” the second of “conspiracy” During day deliberations, foreman sent the to the “At note trial court: following what time point of does a frame of mind person’s hold them responsible [szc] for the act of to commit At conspiracy murder first Example: conspirators [?] murder[,] planned to commit then act actually they committed before their changed agreed minds and to just do damage property please —And & help clarify pages 43A (Italics the CALJIC.” [] [No. 6.10] original.)2 those, 2The provided written instructions deliberating jury. were One of CALJIC No. 6.10, read: conspiracy agreement “A is an entered into or with persons between two more specific agree intent to public degree commit offense of first by explosives murder and specific with the further intent to commit such an offense followed overt act committed this state or parties one more of the for the purpose accomplishing] object of this agreement. Conspiracy is a crime. In order find a guilty defendant conspiracy, H] proof addition to the agreement of the specific unlawful intent there must proof [be] the commission of at least one of the alleged overt acts in the information. is not It [J] necessary guilt he, himself, committed any particular defendant that act if overt he conspirators was one committed. when such act was The term overt means act [[J] any step taken or act by one committed or more the conspirators goes beyond which mere
planning agreement or public commit offense and act step which is done or in furtherance of the accomplishment act, object of the conspiracy. step To be overt taken an [¶] or crime, the act commit crime, committed need not in itself even constitute crime, attempt to commit the which is the object ultimate the conspiracy, is it nor [of] required step that such or act of itself be criminal or an unlawful act.” *8 next note, counsel to the appear the the trial court ordered receiving Upon At the the jury’s question. an to response to discuss morning appropriate conference, the that under the trial court instruct suggested defense counsel no conspiracy there would be jury’s example circumstances presented not be need agreed jurors first murder. Defense counsel degree to commit The prosecutor to the court. reminded submit additional they questions could upon jury’s impinge would argued suggested the defendant’s instruction attention upon The decided to refocus jury’s role as fact finder. trial court 6.24, instructions, and directed through CALJIC Nos. 6.10 the conspiracy them in the of all light to consider to reread those instructions and jurors the other instructions. law “on any point desires to be informed deliberating jury
When case,” returned court and “the information in the must be arising (§ 1138.) must required given.” be was the jury’s inquiry response
Defendant asserts trial court’s upon explanation or enlarging because instead of clarifying inadequate, 6.10, simply the trial court “overt act” CALJIC No. “conspiracy” and they which presumably had the reread the instructions jurors conspiracy had read. already this that defendant waived
We contention reject People’s first (See People Kageler Cal.App.3d v. object. issue failing 235]; Cal.App.3d People Chagolla Cal.Rptr. he did not 432-433 defense counsel stated Although addi reminded could submit to the court jurors they want specifically he did trial court’s instruction “tacitly tional questions, approve” all instruc to reread CALJIC Nos. the other light 6.10-6.24 Defense that the jury’s tions. counsel specifically requested inquiry The objection answered trial court refused that No directly. request. (§ 1259.) required preserve point appeal. as to the jury’s question uncertainty synergizing indicated
effect of an act a crime. This is upon agreement overt to commit
25 to agreement which defines as an conspiracy CALJIC No. 6.10 explained accom- act done for the purpose commit a crime an overt by” “followed of that plishing object agreement. legal
“The has a understand the primary duty help jury court to Thompkins (1987) 195 principles apply. (People Cal.App.3d is asked v. 244, must always 250-251 This not mean the court Cal.Rptr].) does [240 instructions are elaborate on Where the original the standard instructions. section 1138 to themselves full and the court has discretion under complete, determine are sufficient satisfy jury’s what additional explanations 1179, (1990) (People 51 Cal.3d 1213 request information. v. Gonzalez 729, Indeed, 1159].) 2d from the diverging 800 P. comments Cal.Rptr. [275 People standard are often Lee 92 716 risky. (E.g., Cal.App.3d 128].)” (People (1991) 53 97 Cal.Rptr. [155 v. Beardslee Cal.3d P.2d Cal.Rptr. 806 matter,
After consulting counsel and trial court considering in its discretion decided a direction to the to reread certain instructions was the court did address the appropriate response. directly Although issue of of the in the implied given abandonment conspiracy example Beardslee, (Cf. jury’s its inquiry, response occasion. adequate 96-97.) pp. Cal.3d at There was no error. Moreover, if, as defense counsel the trial had an- urged, directly court swered the jury’s inquiry, it would been inform the have constrained to that once agree to murder and one of the commits conspirators conspirators end, overt act furtherance of that crime to murder is conspiracy complete, are conspirators not relieved of criminal liability therefor even though they subsequently agree abandon that object agree instead only damage The property. conspirators’ abandonment of the agreement to murder would preclude conviction for to commit conspiracy murder if only such abandonment of an precedes commission overt act aby conspirator furtherance object of murder. v. Sconce 59]; 701-703 Cal.App.3d see Wharton’s (14th Criminal 1981) Law ed. §
Given the evidence before the jury, this clarifying instruction could hardly have been to defendant’s The advantage. prosecution evidence established Hill, defendant and Keefe agreed murder Vicky and to achieve and fuse cord. dynamite, defendant Keefe object gave blasting caps defense which involvement conspiracy,
defense was denial *10 disbelieved, murder and expressly an to finding agreement jury implicitly to Keefe occurred materials from defendant finding explosive the transfer The shows an evidence prosecution consistently and constituted overt act. mind changed before Keefe his complete that the crime of was conspiracy not trailer but her dynamite Vicky’s and told defendant he would truck original the their house. There was no evidence abandoned conspirators i.e., the Keefe received act was before objective performed, before overt correct defendant. Had the court delivered legally materials from explosive rejected defend- question, having exegesis jury’s hypothetical jury, evidence, that to identical verdict inexorably ant’s would have been led returned, degree commit first was event to guilty conspiracy Thus, if the jury’s question, murder. even were error to answer directly it not it was harmless a reasonable doubt. beyond
II jurors question considered improperly Defendant contends (§ 1181) was new trial Defendant’s motion for penalty during deliberations. heard they of three who stated had jurors declarations supported by if months jail that would face six only deliberations defendant probably The trial denied commit murder. court degree convicted of first conspiracy new We find error. motion for trial. no Miller she had unde- Juror Terri declared that deliberations been during was she cided on she voted because conspiracy guilty count. reason act was “convinced other that had committed an overt [defendant] I when period declaration this “[D]uring Her continued: conspiracy.” I mind another whose changed from undecided to heard my guilty, six would identity only get is unknown state probably [defendant] Jean attempted months what he done.” Miller then Juror persuade had undecided, Passmore, com- because defendant had guilty who vote mitted act. Miller Passmore defendant “would an overt also related to six get months for what he had done . . . .” probably only Miller her “would
Passmore’s declaration confirmed that told defendant receive six for what he had done.” after this only “Shortly hearing months declared, comment,” Passmore she vote “changed by stating [the [her] ” foreman], ‘if that’s the it has then to be.’ way way to be that’s the has statement, Aside in her from this Passmore did state cryptic not expressly declaration she her her why changed vote. To declaration contrary, ambiguous as to whether she fact voted Passmore asserts guilty. Therein doubt; she did not a reasonable guilty beyond did not find defendant she clerk polled when the and her affirmative guilty, response want to vote filled out the one that had been that the verdict as read only meant “[is] room.” recalled in her declaration that she A stated Manjeot, third Charlet juror, he sentence or the effect a six-month hearing somebody say “something influenced did claim to have been would six months.” only get Manjeot value, and, her declaration at face this statement guilty by accepting to vote she denied flatly difficult how she could have been because it is to perceive *11 declaration, a she did not realize had voted to her guilty. According she did not into court and she being by jury, verdict of taken guilty in to the “yes” response the clerk or being polled by stating remember clerk’s whether the verdict as read was her verdict. poll by
The declarations of the other nine were jurors presented prosecu- All stated had heard deliberations nothing during tion. of these they concerning penalty or punishment Juror
Juror Miller did not at the on the new trial motion. testify hearing did did and affirmed her declaration was correct but Manjeot testify mention the Her dealt expressly subject testimony or penalty punishment. with her insistence never voted Juror Pass- exclusively guilty. that she had more also testified and affirmed her declaration was correct. She then testified that she her vote to because she heard it said changed guilty defendant “would six months.” only get 1150, (a)
Evidence Code section subdivision states: as “Upon inquiry verdict, of a evidence validity any otherwise admissible made, conditions, conduct, received as to statements or or events occurring, room, either within or without the such to have likely a character as influenced the verdict No evidence is admissible to show the improperly. statement, conduct, condition, effect of such in event a either or upon him to assent to or influencing dissent from verdict or concerning mental processes by which it was determined.” 1150, (a),
Evidence Code section subdivision “thus makes a ‘distinc acts, ascertainable, tion between of overt and proof objectively proof subjective reasoning processes individual which can be neither juror, corroborated disproved (1969) nor . . . .’ v. Hutchinson 71 Cal.2d 342, 196, 132].) 349 455 2d Cal.Rptr. P. limitation one prevents [78 ‘This juror from a verdict of the upsetting whole his own or his jury by impugning fellow jurors’ (Id., mental or processes reasons for assent or dissent.’ 905, 350; Cal.Rptr. People Cal.App.3d Ozene 692, 170].)” (People v. Cox 53 Cal.3d 694
P.2d tendered in the trial court. For
Defendant raises an issue not now sentence of defendant contends that the second the first time on appeal, (a), admissibility prohibiting Evidence Code section subdivision by has been reasoning abrogated evidence of a juror’s subjective process, Constitution, I, (section (d) article subdivision of the California section 8. That 28(d)) Proposition enacted at the June 1982 election as part Except in to Truth-in-Evidence. “Right states provision pertinent part: two-thirds vote of the membership statute hereafter enacted provided excluded evidence shall not be Legislature, each house of relevant conviction motions criminal any proceeding, including pretrial post offense, for a criminal hearing juvenile or trial or hearings, affect this section shall Nothing whether heard or adult court. juvenile or hearsay, rule of evidence relating privilege any existing statutory Code, Evidence Sections or 1103.” [Italics added.] [sic] mental subjective evidence regarding jurors’ Defendant asserts the *12 Evidence Code section by which would otherwise be excluded processes, 1150, 28(d) be deemed (a), subdivision should now force of section admissible. As we shall 28(d)
Section deals with the admission of “relevant evidence.” 1150, (a), subdivision the second sentence of Evidence Code section explain, law, law, which rule of derived from the common embodies a substantive irrelevant. subjective reasoning renders a juror’s process which “Relevant Evidence” is defined Evidence Code section 210 “ evidence, relevant ‘Relevant evidence’ means evidence including provides: declarant, tendency to the of a witness credibility hearsay having any or reason to or fact that is of prove disprove any disputed consequence determination of the action.”
We are cited to no nor are we aware of to the effect that the authority, any, meaning 28(d) of the term “relevant evidence” as in section is not used with the defined in precisely congruent of that same term as meaning Indeed, Evidence Code section 210. nothing contrary appear assume, assume, it is ing, reasonable to and we do so that the enactors of definition, 28(d) section intended the Evidence Code which was enacted 1965, to of “relevant evidence” used in the later govern interpretation as 28(d). (See enacted (1959) section Select Base Materials v. Equal. Board of 51 Cal.2d 645-646 P.2d evidence,” encompasses
In “relevant Evidence Code section 210 defining a broad of relevance. That both the concept comprehends probative concept in the provable value of evidence and its to a matter which is relationship action. Relevance in the with the value of probative narrower sense deals is, matter evidence. of evidence to a relationship provable properly understood, usage Due to and misunder- question materiality. imprecise standing, synony- used “materiality” commonly interchangeably confusion, with “relevance.” To avoid the Evidence Code “substi- mously concept tutes word for ‘material’ and covers this correct ‘disputed’ ” in the in Evidence materiality definition of ‘relevant evidence’ Code single Witkin, (1 (3d 1986) 255-256.) section 210. Evidence pp. Cal. ed. § “A As Witkin ‘material matter’ is one ‘the existence or non- explains: C., (Model 1(8).) existence of which in the Rule action.’ other provable words, case; which materiality issues in the evidence does depends 690; (See relate to a matter in issue is immaterial. 29 Cal. L. Rev. McCor- 3d, 185; Am.Jur.2d, §2; mick (Tillers Rev.) Wigmore Evidence § Witkin, 251.)” (1 (3d 1986), Cal. Evidence ed. original § § Thus, italics.) defined broadly by Evidence Code section “relevant value, i.e., evidence” has two distinct dimensions: the “tenden- probative cy reason to or prove disprove” proposition [of evidence] which it is offered and in the relationship provable to a matter which is action, i.e., the reason to or “tendency prove disprove [of evidence] any fact that disputed is of to the determination of the action.” consequence Under the broad definition of “relevant evidence” in Evidence Code section 210, evidence which has no “tendency reason to prove disprove fact of disputed to the determination of the action” is irrelevant. consequence *13 So also is evidence which does have in “any tendency reason to prove . . .” disprove any fact which is not of to the determination of consequence the action. i.e., issue,
Materiality, in what matters are “is determined the mainly by pleadings, the rules in and the substantive law to the pleading relating 690; 3d, 185; (See kind particular of case. 29 Cal. L. Rev. McCormick § 2; Witkin, Evidence, (Tillers Wigmore Rev.) (1 . .” op. . Cal. cit. § 286, 255-256.) pp. § it,
As the Wigmore explained common law rule a juror prohibiting from his impeaching own verdict derived three from and general indepen communications, evidence, dent principles, relating those to privileged paroi and (8 self-stultifying Evidence testimony. Wigmore, ed. (McNaughton 1961) rule, Under the p. § evidence of the paroi the aspect act, “verdict of a is an like a will operative or a contract or a judgment, to its adopted in applications rules it govern special and the evidence paroi restrictions, Thus, other omitted.) among (Ibid.; citations circumstances.” the final act leading up and and motives negotiations preceding “[t]he vary aside or to used to set immaterial and cannot be the verdict are uttering in original.) and italics (Ibid.; citation omitted the verdict as uttered.” that “where evidence rule is of the paroi this feature underlying principle i.e., effects are legal to which an utterance existence and tenor of a jurai act — made, issue, formally and as finally in the outward utterance attached —are intention, constituting exclusively taken as is and not the and prior private are) act; (as judicial proceedings the act is required and therefore where 679, citations (Id., p. in the act.” writing § to be made writing, retirement, their during omitted.) “'jurors’ deliberations Consequently, mind state of represent motives and beliefs expressions, arguments, jurai consequence. in itself of no act and is every legal which must precede jurors in by court and agreed upon pronounced The verdict as finally it stands act. Hence jury’s of the be taken as the sole embodiment must room, the jury precisely led privacy of what irrespective up legal from disappear to a contract of the negotiations parties prior writing reduced to agreement when once the final consideration 680; “The italics original.) omitted and (Id., citations p. signed.” § this,” continues, which forbids “is the same Wigmore which policy requires leading up a contract negotiations parties a consideration of the deed, of all the loss namely, their final terms as embodied deliberately verdict, definiteness for seeking certainty impracticability views, after disclosure risk misrepresentation preliminary verdict, if end trials the grounds and the impossibility expecting 681; fn. (Id., were to effect its overthrow.” § the verdict allowed Thus, omitted.) subjective thought processes the rule renders the jurors’ that evidence this it follows immaterial and of no From jurai consequence. instructions, influenced were judge’s that the misunderstood the under an erroneous belief remark of a fellow assented juror, improper sentence, or legal right vary or had the judge clemency would use of no legal signifi- evidence is simply had been influenced inadmissible short, law and Evidence Code (Ibid.) In under both the common cance. intentions, motives, beliefs, misunderstandings, the jurors’ section *14 the like are immaterial. 606(b) rule
The federal to Evidence Code section 1150 is analogue Evidence).3 a (tit. Rules of “As Federal Rules of Evidence U.S.C.A. Fed. matter, 606(b)] in rule ... practical exclusionary principle [embodied indictment, 606(b) verdict or a provides: “Upon inquiry validity 3Rule an into the of a occurring jury’s the course of the juror may testify any during as to matter or statement mind or emotions as anything upon juror’s deliberations or to the effect of that or other ground impeach- what amounts to limits imposes upon permissible significantly ment of verdicts. That is the obvious result of a rule which jury only restricts use of the sure source of information as to occurrences Mueller, Evidence (3 deliberations.” Louisell & Federal during jury’s Thus, (1979).) although may a “sure source of information” § value, evidence of evidence excluded yield probative is nonetheless an from into of a verdict. inquiry validity 606(b)
“Federal Rule of Evidence in the common-law rule grounded admission of verdict and the against a testimony impeach exception juror (Tanner to extraneous influences.” v. United testimony relating States 483 U.S. L.Ed.2d 107 S.Ct. As [97 court, the federal the rule in explained by high finds its rationale “[substan- tial policy considerations the common-law rule support against [which] admission of testimony impeach early a verdict. As as 1915 this from, Court explained necessity shielding jury deliberations public scrutiny: it once be established that verdicts made and solemnly [¶] ‘[L]et returned publicly into court can be attacked and set aside on the testimony be, those who took their part and all verdicts could publication many be, would followed in the inquiry hope discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party an effort to secure them from evidence of facts which might establish misconduct If sufficient to set aside a verdict. evidence thus used, secured could be thus the result would to make intended what was deliberation, to be a private the constant subject investigation of public —to the destruction of all frankness and freedom of discussion and conference.’ Pless, 1300, 1302, [(1915)] [264,] McDonald v. 238 U.S. 267-268 L.Ed. misconduct, 35 S.Ct. . Allegations juror 783] incompetency, ..[][]... inattentiveness, weeks, raised for the first time days, or months after the verdict, Moreover, seriously disrupt finality of the process. [Citation.] room, full and frank discussion the jury jurors’ willingness to return an verdict, unpopular and the community’s trust a system relies on decisions of would all laypeople be undermined by barrage of postverdict Note, scrutiny juror conduct. See Public Disclosures of Jury Delibera- tions, States, Harv. L. Rev. (1983).” (Tanner 888-892 v. United supra, 483 U.S. at pp. 119-121 105-106].) L.Ed.2d at pp.
Although the Tanner court acknowledged is little doubt that “[t]here postverdict investigation into juror misconduct would some instances lead influencing juror to assent to or dissent from the concerning verdict or indictment or juror’s therewith, processes mental in connection except juror may testify that a on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought upon any juror. bear juror’s Nor affidavit or evidence of any statement juror concerning a matter about which precluded would be testifying from be received for these purposes.” *15 juror or improper reached after irresponsible invalidation of verdicts 106]), it con- nevertheless (483 U.S. at L.Ed.2d at p. p.
behavior” 120 [97 cluded, could that the jury system clear “It is not at all . . . portentously: at (483 L.Ed.2d efforts to it.” U.S. perfect p. survive such 106].) Evidence, section Rules of Evidence Code 606(b) Like rule of the Federal 1150, the issues (a), delimiting a substantive expresses policy subdivision The of an of the verdict” first sentence validity as to the “[u]pan inquiry 1150, objec- in effect (a), provides Evidence section subdivision Code to have likely such a character as tively [are] ascertainable overt acts “of such inquiry. influenced verdict are material an upon improperly” in effect (a), Evidence Code section subdivision second sentence of is reasoning juror upon declares of a not material subjective process that the (a), such an force of Evidence Code section subdivision By inquiry. that is of “disputed not a fact subjective reasoning process juror meaning within the to the determination action” consequence such Evidence 210. to that which is material respect upon Code section With i.e., influenced overt to have likely an ascertainable acts inquiry, objectively or reason to “having any tendency prove evidence improperly, and, Code, (Evid. 210) subject such acts is relevant disprove” § 352, is Evidence Code section admissible. provisions of Federal of Evi- The same which Rules underpin considerations policy 606(b) rule inform Evidence Code section limiting dence also effect of law were (a), which it has been said: subdivision relation to “[I]f effect of could statements about the reviewing jurors’ courts consider verdict, by losing error on the would be hounded for their statements jurors misconduct, case, the whole just cases of parties every a consid- degraded nature of review would be from appellate prejudice delve into the objective thoughts, eration record to attempt feelings, accurately and motivations of the who often would not jurors able to trace articulate different verdict. Such a trial of their paths would make the jury system completely unworkable.” 1178, 1200, Aris (1989) fn. Cal.App.3d 28(d)
Section commands that “relevant not be excluded evidence” criminal case. As defined evi- Evidence Code section “relevant has dence” two distinct characteristics: materi- probative quality ality. Materiality a function either of the issues tendered generally pleadings or of substantive law As a matter expressive public policy. (a), Evidence policy, Code section evidence of subdivision excludes the subjective reasoning their verdicts. Since processes impeach *16 material, as defined in not “relevant evidence” such evidence is it is not 210, nor, 28(d).4 as used Evidence Code section section perforce, whether, the admissible evi It for us to determine given remains verdict, denying dence adduced trial court erred impeach evidence, spanned motion for new trial.5 to that deliberations According at 2:40 on p.m. two at 1 20 and days, commencing p.m. concluding on April court, to the 22. this submitted two April During period questions other granted regarding one to certain witnesses and the regarding immunity I, act, ante. Several and described conspiracy previously part overt votes, oral, The both written and were final vote during taken this period. finding guilty defendant was an vote. The record does not show oral precisely during day when course of the two deliberations of these votes was taken. written vote
Prior to the Miller heard an state juror juror last unidentified defendant would receive the last probably six-month sentence. only vote, written 2, for 10 voted and Passmore and were unde- guilty Manjeot, cided. Miller voted with the The not disclose majority guilt. record does argues 4The dissent the relevancy materiality question that of the evidence in is to be misconduct, by governing juror determined by law and not Evidence Code section 1150. law, evidence, argument The point. class misses the When under the substantive a certain uncontradicted, even if significance credible and has legal “jurai consequence” no no —has definition, evidence, the words Wigmore that in the by traditional immaterial —then 1150, sense and irrelevant under the concept broader of Evidence Code section subdivision (a). 28(d) Section not purport does to make immaterial irrelevant evidence admissible in Thus, (a). criminal cases. has no it effect on Evidence Code section subdivision 5The dissenting justice would upon decline to consider and rule contention that defendant’s the limitations of Code (a) by 28(d) Evidence section are subdivision overriden section because, asserts, strike, prosecutor he failed to the trial permitting move thus court to However, consider the putatively irrelevant evidence of misconduct. defendant does not Witkin, make that appeal (9 contention on point is therefore Cal. waived. Procedure (3d 1989), Appeal, 469-471.) ed. pp. alleged his zeal to tax with People But in their § default, the dissenting justice airily ignores gratu the defendant’s default and out reaches itously to grasp at an issue which has neither been tendered nor briefed. reason for this unclear, strategem unusual although majority panel if it were to command a of this it would avoid a (§ 28(d)) definitive on that ruling part Proposition at issue here. Moreover, agree we do prosecutor preserve objections failed to his those parts of the jurors’ testimony dissident declarations and which are rendered inadmissible (a). Evidence Code section subdivision the new hearing prosecutor repeat- At trial submission, edly objected to the testimony. pursuant express inadmissible Before court, invitation prosecutor of the objections argument respect renewed his with both the declarations testimony. and the Immediately upon argument conclusion of the court denied the motion for new without indicating trial how it ruled on the prosecution’s objections. At juncture pointless prosecutor would have been press ruling for the for a on his objections. The People aggrieved were not denying appeal the order new trial and could rely Witkin, on the presumptions and judgment. (See intendments in favor Cal. (2d 1986) Criminal Law Appeal, ed. § *17 taken. vote was the the last written during at what time deliberations point final, the oral the last written vote and the between period Sometime during defendant guilty Miller to vote because vote to Passmore sought persuade that At Miller also told Passmore act. this time had committed an overt this time During to six months. only defendant would be sentenced probably six-month only receive a “heard state” defendant would Manjeot somebody Miller, apparently her with Passmore sentence. after” discussion “Shortly “if stating, her vote to guilty by advised the foreman she would jury change be, this it has When way the then the to be.” way that’s it has to that’s vote, final, not record does of vote relation oral occurred to change some undis- her to the by jury poll, disclose. As demonstrated response vote, to also her vote Manjeot changed time last written closed after the guilty.6 “In deliber- your was instructed: jury
Before deliberations the beginning or is to be discussed subject or penalty punishment ations not way in any not matter which must not That is a by jury. considered [sic] affect verdict.”7 your record, disregarded Miller and an unidentified juror juror
According This or not to discuss penalty punishment. the trial court’s instruction trial court We determine whether the constituted misconduct. must juror had such misconduct prejudicial concluded that correctly presumption dispelled. been v. Hol a of prejudice.
Juror raises presumption misconduct 1327]; 530, P.2d Cal.Rptr. 790 loway 50 Cal.3d 1108 [269 650 416 Cal.Rptr. v. Ford 32 Cal.3d Hasson Motor Co. 1171]; Honeycutt (1977) 20 Cal.3d People P.2d v. to evidentiary aid 1050].) “The an presumption prejudice 570 P.2d to likely misconduct of a type
those are able to establish serious parties who had an verdict or deprived complaining party have effect on the which case, aby his are unable to establish consideration of who thorough yet thus that The law the evidence actual occurred. preponderance prejudice Code which Evidence substantial barrier recognizes proof prejudice erects, (Hasson v. section and it seeks lower that barrier somewhat.” Co., supra, Ford Motor 32 Cal.3d at p. after implies, inaccurately, shortly 6The a verdict dissent reached unanimous disclose, changed directly guilty. simply Passmore her undecided vote to The record does not inferentially vote the vote taken. For respect change or when with Passmore’s final was shows, leaving may guilty all the record well the 11th vote for Passmore have been (Manjeot) long only speculate the 12th still to be convinced. scenario one can how Under this Manjeot guilty.
it took to convince
to vote
by
7It is not contended that the
or misled
inadvertent
apparently
confused
negative
double
in the last sentence of the instruction.
not,
defendant,
however,
the barrier
altogether.
It does
eliminate
of nature likely
must still
serious misconduct
moving party,
prove
arises,
have
And
affected
verdict.
even where
“it
presumption
rebutted
affirmative
does
exist
evidentiary showing
prejudice
court’s
of the entire record to determine
reviewing
examination
whether there is a reasonable
of actual harm to the
probability
complaining
Co.,
(Hasson
party resulting from misconduct.”
Ford Motor
*18
417;
People
(1987)
Cal.3d at
v. Miranda
44 Cal.3d
p.
Cal.Rptr.
[241
744 P.2d
In People
v. Marshall
“ ‘The ultimate issue influence the juror is resolved reference to test, effect, the substantial likelihood an In objective standard. court must examine the extrajudicial material and then it judge whether is inherently likely Q[] to have the juror.’ influenced Such is different ‘prejudice analysis’ from, than, and indeed less tolerant ‘harmless-error for analysis’ ordinary error at . trial. . . When the misconduct a question supports finding that there is a substantial likelihood that at one juror least was impermissibly detriment, influenced to the defendant’s we are to conclude that compelled circumstances, the integrity of the trial was undermined: under such we contrast, cannot conclude that the when the impartial. By miscon duct does not such a we must it support finding, hold nonprejudicial.” Marshall, 950-951; v. omitted.) 50 Cal.3d pp. citations
Under this objective standard emphasis is on nature and extent of the misconduct and alleged not other extraneous but objectively verifiable facts. Thus, regardless of evidence that jurors one or more their changed votes information, after receiving extrajudicial our is concern with the misconduct itself and whether it is have “inherently likely” to influenced a reasonable juror.
This objective finds approach justification in the inherent mystery In deliberations. given a case it is virtually impossible to determine what vote; influenced a particular juror’s an unlimited number of factors may contribute to such a decision. In order to assess one fully impact juror of each analyze personality necessary
factor it would
Instead,
task.
virtually impossible
entire deliberation
process,
recreate the
as it
the misconduct alone
a court to look at
objective
permits
an
standard
substantially
determine whether
relates to the issues
the case and
juror.
of a reasonable
to have affected
vote
likely
in cases
here
from that
distinguishable
misconduct
alleged
from an outside
deliberating jurors
where information was received by
themselves,
often
sources of information
source.
contrast to
outside
in People v.
example,
have
them an aura of authoritativeness. For
about
murder
degree
prosecution,
20 Cal.3d
a first
Honeycutt, supra,
regarding
an explanation
contacted an
friend and obtained
attorney
People
diminished capacity;
involuntary manslaughter charge
a juror
murder
Holloway, supra,
degree
prosecution,
50 Cal.3d
a first
after
defendant was on
indicating
parole
read a
trial
newspaper story during
assault;
It cannot be that gainsaid jurors upon that “The is an institution jury system more than the court’s instructions. just to their bring human. Jurors fundamentally is fundamental but also legally fact matters of law and deliberations and beliefs about knowledge general is one find their life and That do so everyday experience. they source it has the of the It is also one of its weaknesses: strengths jury system. on exclusively to undermine determinations that should be made potential given by the evidence and the instructions parties introduced weakness, however, court. Such a must be tolerated. is an impossible ‘[I]t sterilized jury] laboratory, completely standard to . . . to be a require [the (1963) U.S. (Rideau and freed from external factors.’ v. Louisiana 373 any 663, 669, Clark, J.).) (dis. L.Ed.2d 83 S.Ct. opn. [10 1417] Moreover, under that ‘standard’ few verdicts would be chal- proof against Marshall, 950.) v. 50 Cal.3d at lenge.” (People p.
For it is the rare indeed who does not a defendant example, juror suspect in a action is insured for awarded. It is also rare personal injury any recovery ill-conceived, not to have some and notion jurors preconceived, possibly of the associated with a these penalty particular thoughts crime. To harbor not misconduct. when a an instruction and introduces Only juror disregards When this does misconduct arise. jury’s these matters into deliberations as and source of the information prejudice depends occurs nature upon well how the the issues at hand. information relates to and legal carry greater weight, statements issues
Undoubtedly,
regarding
verdict,
juror
hence are more
when
come from a
likely
they
prejudice
Thus,
in In re
By references to here involved a matter not material penalty presented issues It therefore to the jury. analogous alleged more Gorman misconduct 218 Cal.App.3d Leftwich 671], a medical action. There the malpractice charged defendant misconduct based on a declaration that “during jurors deliberations ‘discussed whether had medical insurance’ and that malpractice [defendant] ‘[v]arious said she most had likely medical insurance malpractice ” insurance would the claim.’ The court out company pay pointed “[t]he declaration contains no to base their allegation jurors agreed upon verdict regarding this discussion insurance. other four dec filed larations on behalf make being of defendant no mention of insurance (Id. discussed deliberations.” The court during rejected then *20 misconduct, of charge “If insurance had concluding: any impact upon verdict, the declaration would have so stated. single establish miscon ‘[T]o reversal, duct requiring juror declarations must establish express agree “[a]n ment the jurors to include such in their [consideration insurance] verdict, or extensive discussion an that evidencing implied agreement to (Moore effect.” v. Group, Preventive Medicine Medical Inc. [Citation.]’ Moore, Here, in Cal.App.3d Cal.Rptr. as declaration ‘not does suggest agreement was reached and the express discussion (Id., could hardly [it] relate[s] characterized as extensive.’ at 740-741, pp. omitted.) record, fn. this are Upon we satisfied all, not, that if insurance was mentioned discussion was the words of Evidence Code section (a), subdivision ‘of such a character as is ” to have (Gorman likely influenced Leftwich, supra, improperly.’ v. 218 Cal.App.3d 147.)8 at p. 8In v. Moore Group, Preventive Medicine Inc. 178 Cal.App.3d 728 859], the court prejudice found no jurors, where considering damages, discussed how much recovery plaintiff’s attorney would receive. Although cases, Moore and Gorman civil are draw decisions no distinction between Co., civil and considering criminal cases in jury misconduct In Hasson v. supra, Ford Motor plaintiff’s Cal.3d rejected court contention the presumption prejudice
Here, Gorman, matter were isolated improper the allusions to penalty multilateral discussion of There is no evidence of a and infrequent. The evidence shows evidence that was considered. penalty nor competent as to which there relating penalty two or three isolated statements only with an statements originated were no The first of these isolated responses. and, succeeding the similar within the itself as with unidentified source statements, the defendant of a merely probability was couched terms Stankewitz, where the Unlike would receive a six-month sentence. jail this information was originated juror, information also with a extrajudicial Thus, if even there are neither nor as authoritative. represented presented for a to believe objectively where it would be reasonable circumstances conspiracy the serious crime of on a statement that one convicted of rely sentence, those six month jail to commit murder would receive only where, as reliance is not reasonable are not here. Such present circumstances here, no knowl special mere someone with speculation by the statement is “inherently likely” here was not Thus misconduct edge subject. vote of (Marshall, 950-951) to have affected the supra, 50 Cal.3d pp. the jurors. in the this the inconsistencies
We are further conclusion persuaded In seriousness of the evidence misconduct. misconduct, addition to the nature and miscon- of the evidence of strength courts have recognized ensued is relevant and the that actual have probability prejudice may duct rebutted. has been presumption prejudice a determination whether Here, Co., Miller Juror (Hasson Motor 32 Cal.3d at p. Ford before the last heard the statement from an unknown source indicated she written the last Manjeot written vote. Jurors Passmore and heard between Miller; the final which was oral. Passmore’s source vote and vote source was unknown. Manjeot’s the last written prior Miller have heard the statement order for
vote, it, have heard the source must Manjeot and thus before Passmore and court, like criminal According litigants, in a case. “civil apply should civil *21 defendants, of their case right complete have a to the consideration constitutionally protected Const., I, 16; Const., Amend.; (U.S. Andrews v. by impartial panel jurors. of 7th Cal. art. § 944, (1982) Cal.Rptr. 176].) People Honeycutt, v. County Orange Cal.App.3d 130 953 [182 of 150, 156, 3, applying a rebuttable part 20 Cal.3d footnote relied in on civil cases 947, (See (1980) presumption prejudice. Cal.App.3d of also Smith v. Covell 100 [161 953-954 377].) Cal.Rptr. compel Code of Civil Procedure section 475 does not a different result. That pertinent part: presumption prejudicial, section states in ‘There shall be no that error is or that ago was done if is We of of injury long rejected rigid interpretation error shown.’ a [Code (1899) & Co. 126 Civil section 475 in San Jose Ranch Co. v. San Jose Land Water Procedure] 322, Furthermore, parallel provisions Cal. 324-325 P. in the California Constitution [58 824]. prevented applying presumption and the Penal Code have not us from the in criminal cases. Const., VI, 13; Code, (See Cal. principled art. Pen. No distinction can § §§ purposes prejudice arising drawn between civil and criminal cases for of presumption the 416-417; (Id. pp. omitted.) from misconduct.” at citations
39 heard no nine Yet the other nine swore jurors. they one of other been Miller from indicated she heard statement such statement. Passmore indicated Manjeot members” and herself. discussion “between during the last written heard it the discussion which ensued between “[djuring she final, in these declarations that vote” and the oral vote. It is implicit yet general jurors, statements were made deliberations during among none of the other nine heard them.9 jurors she
The declaration is further because testimony Manjeot suspect testified she never vote to commit first agreed guilty “conspiracy trial, On new degree committing degree murder first murder.” motion for the trial court this claim on the basis of affirmative rejected Manjeot’s after the verdict read. The declaration and response jury poll Passmore, testimony of less fantastical than those of being only slightly declaration, are also her Man- Manjeot, Passmore what suspect. implied jeot expressly asserted: that she did That the clear guilty. not vote inference to be drawn her from Passmore’s affirmation attempt explain verdict guilty that she meant to affirm during jury poll by asserting thereby only the verdict read filled out in the jury was the one room. declaration, Six weeks after so her affirmed stating Passmore the correct- ness of her declaration the new hearing trial motion testimony asserted, and then did inconsistently, guilt.10 that she vote for Considering the issues raised the declara- credibility by conflicts tions and testimony, (See evidence of People misconduct not strong. Morris 232 Cal.3d P.2d 949].) Cal.Rptr. record discloses three jurors changed hearing their votes to after guilty However, statement regarding penalty. the record is silent as to when during the 49 hours between the start and finish of deliberations statements concerning penalty were made or the votes were taken. The final vote have been taken well after the statements made following were substan- tial discussion among jurors of matters before them. Miller first properly heard a statement concerning penalty during a discussion of overt acts after 9While the declarations of Manjeot might Passmore and be interpreted as establishing that alone, single Miller made a statement to them which statement was not overheard the other jurors, the record is devoid basis for such reading the evidence. The trial court the jury and, instructed not to discuss the case unless all members were present absent evidence, contrary we must assume this v. Adcox instruction was followed. Cal.3d nothing 763 P.2d suggest There is in the record jurors all were present during alleged discussions or could not have heard what was being said others in the suggestion room. The in the dissent engaged *22 (dis., “enclave opn., post, p. 49) deliberations” is speculation. rank 10The new trial motion attacked grounds: (1) the verdict on two jury misconduct and jury lack of unanimity. Lack unanimity, based Manjeot’s testimony, rejected the by trial and court is not appeal. raised on heard the Manjeot her Both Passmore and
which she vote to changed guilty. which were midst discussions or other comments the of other statement There no reason to believe relevant to deliberations. is jury’s the presumably more than the other informa- persuasive the information was any improper In Miller indicated she tried to convince Passmore discussed. fact being tion the one of overt “due to fact had committed guilty
to vote the [defendant] listed the instructions.”11 jury acts as However, review the
Our task on is to record independently. appeal of prejudicial deference to the trial evaluation great judge’s we still accord (Akers Kelley Company, v. Inc. 173 Cal.App.3d effect. 513]; County Orange (1982) Cal.App.3d Andrews v.
Cal.Rptr. The court concluded decla trial 954-955 [182 new trial. court an insufficient basis for testimony presented rations the vote of there “a substantial likelihood that one found was not impliedly matter” by exposure was influenced prejudicial or more Marshall, 950) at and concluded the presumption Cal.3d and conse had been rebutted.12 inconsistencies Considering prejudice the dissident weakness of the evidence of misconduct provided quent concerning that the statements given improper penalty facts jurors, isolated state members of consisted most of three jury, came from deliberations, as being two were not based during days represented ments and were merely probable, were any special knowledge, presented upon reasonably given of such a nature as would be relied serious upon not assessment. of the crime we with trial court’s charged, agree ness “ ‘ the rule as to the lay “However the decisions down strictly may well parties, effect of misconduct have jury prejudiced raised. And one is the not consider or discuss penalty consideration issue, deemed guilty. being your deliberations specifically instructed the jury votes or the in the this considered and 2 undecided. There [¶] 12The dissent 11Prior to her penalty I think that was room made and all that it When she saying were made. by you. [sic] the Court a sufficient makeup change any incorrectly receipt particular defendant’s changed that six [1] the subject quite of the said, question That of the months was the clear. And the Court feels that her no indication in the record of the time of the three follows: “We have case, states the trial court prior votes. is a matter penalty.” vote penalty or of consideration of in the with what had punishment] basis guilty precise votes, information Miller had voted either (Dis. opn., post, for granting which must penalty Thus there is no penalty, on the last or other words of negated got “concluded] been [¶] penalty, two of a new trial.” punishment With reference to votes, presented written separate questions CALJIC p. whatever reason to believe impact any way CALJIC No. 17.42 vote, guilty portion What periods of the 17.42, was said effect this made it 10 for guilty not before the statements as as to Court, jury’s to be discussed or between [sic] court said which have which progress undecided aspect, in the somebody discussion and should not be your [jurors I said, verdict.’ was not on that various or not in the Court room must been ‘In *23 in on is this new trial will not granted ground settled state a where such that it not in the trifling the misconduct was of a nature could it moving nature of have been and that where things prejudicial party, such that the the trial been in no affected appears way by fairness of has the verdict will not be disturbed. . . .” impropriety, [Citations.]’ [Citation.]” Miranda, 117-118.) 44 Cal.3d pp. The judgment is affirmed. J., concurred.
Sparks, NICHOLSON, J., agree with Concurring Dissenting. majority’s —I there error in conclusion was no the trial court’s response jury’s for I request instructions. also share the aversion to clarifying majority’s However, overturning verdicts for trifling misconduct. unusual facts this case raise questions serious about what occurred delibera- during tions. view, in my several discussed and considered potential penalty (CALJIC 17.42).1
violation express trial court’s instruction This No. constituted not presumptively prejudicial by misconduct which was rebutted Further, the prosecution. objection failed to its prosecution perfect in subjective statements contained jurors’ several declarations and live tes- This timony. permitted the trial court in entirety. to consider that evidence its I, Consequently, unnecessary defendant’s consider contention article section (d),2 subdivision added to the California Constitution by Propo- sition abrogates Evidence Code Having section 1150.3 concluded the trial motion, court abused its discretion new I denying defendant’s trial would reverse. conclusions,
Before explaining my reasons for these I facts highlight relevant to question of jury misconduct: 20, 1988,
The jury retired to at 1 deliberate on p.m. April and returned its verdict of guilty conspiracy commit first murder at degree 2:40 p.m. 1The jury: your court instructed the subject “In penalty punishment deliberations the or is not to be discussed or considered the jury. a That matter which must not [sic] any way your affect verdict.” 2“Except provided by statute hereafter enacted a two-thirds vote the membership each house of Legislature, relevant evidence shall not be in any excluded criminal proceeding, including pretrial post hearings, conviction motions and or any trial or offense, hearing juvenile criminal juvenile whether heard Nothing or adult court. in this section shall any existing affect rule statutory relating of evidence to privilege or Code, hearsay, or Evidence Sections Nothing or 1103. in this section shall affect existing statutory added, right (Italics Code, constitutional of the press.” see also Evid. §351.) statutory
3All references are to the Evidence Code unless otherwise indicated. *24 deliberations, clarification jury requested On the second day 22. April The trial court responded act.” and “overt “conspiracy” of definitions for following morning. three jurors. declarations from new trial included
Defendant’s motion for them, said the last Jean Passmore and Manjeot In Jurors Charlet two Before the undecided. versus two for was ten for a verdict guilty written vote vote, unidenti Miller heard an Juror and the final verbal last written ballot for months only six receive a sentence fied defendant would juror say unidentified from an heard a similar statement Manjeot he had done.4 what Miller was While and the verbal vote. the last written vote between convict, the information on she repeated to convince Passmore trying to Passmore. penalty motion, the juror maintained new trial the prosecutor
In response subjective the jurors’ sentence reflected the six-month regarding declarations were, therefore, also inadmissible. prosecutor and mental processes no heard they in nine said remaining declarations which the supplied There deliberations. in course of jury the six-month penalty mention of Passmore, Miller and Manjeot, all or of the part was no motion to strike declarations. hearing at the testify and Passmore Manjeot
The trial court permitted objected argued repeatedly motion. The prosecutor defendant’s new trial thought pro- subjective inadmissible evidence of constituted testimony instance, to a subject the evidence admitted all cesses. each trial court completed. were testimony argument made after motion to strike to be not, thereafter, However, strike. make such a motion to did the prosecutor motion, declaring: new trial The trial court ruled on defendant’s And one is which have been raised. have two questions “We got separate in the somebody as to portion of consideration of penalty, question the penalty.[5] that six months was saying room the jury instructed specifically “With reference to that the Court aspect, said, 17.42, ‘In I deliberations your words of CALJIC which precise to be discussed or considered is not subject penalty punishment by you. [ajffect verdict.’ your
“That is a matter which must not any way Code, (Pen. alone. years 4Defendant faced a sentence of 25 to life on the count conspiracy 182, 190.) §§ unanimous, an defendant’s was not question 5The second related to contention the verdict appeal. issue not raised on “I And feels that whatever was said quite think clear. the Court case, been presented room . . . this with what had particular Court, basis should not deemed the Court sufficient concerning of a new trial.” The made no fact granting findings court *25 of the evidence or of witnesses. weight credibility The trial court erred in CALJIC concluding negated impact No. 17.42 discussion and consideration of defendant’s jury’s penalty. Although admonition where a trial appropriate may eliminate potential prejudice (see Harper court receives prompt People notice of misconduct v. (1986) 414], People 186 1420 and v. Underwood Cal.App.3d Cal.Rptr. [231 when, (1986) 181 1223 840]), is not effective as Cal.App.3d Cal.Rptr. [226 here, breach of an which is instruction constitutes misconduct not revealed until after the jury returns its verdict. I there other conclude is no basis on which to affirm judgment. this
I The Prosecution Failed to Objection Section 1150 Perfect Passmore, The Manjeot, and Miller declarations included evidence of made, conditions, conduct, “statements or events . within occurring, . . the jury
... room” as well as evidence “[showing] the effect of such statement, conduct, condition, (§ 1150.) or event a . . . .” upon juror prosecutor’s failure to renew his motion to strike evidence of subjective Miller, thought left all processes the evidence Manjeot, and supplied by Passmore before the trial court.
When strike, evidence is received subject to later motion to the motion made, to strike is If it mandatory. is not the objecting party waives its to objections (Ault admission of that evidence. v. International Harvester Co. 113, (1974) 812, 528, 13 1148, Cal.3d 123 Cal.Rptr. 74 A.L.R.3d [117 986] motion to strike [no after conditional hearsay admission of about testimony another vehicle]; witness’s observation of defects (1921) Estate of Wempe 557, 185 Cal. 564 P. strike [197 949] motion to after [no tentative admission of physician’s testimony concerning decedent’s mental in will competency contest]; 334, People v. (1905) Cook 148 Cal. 344 P. motion [83 43] [no strike after conditional admission of testimony concerning defendant’s inces tuous with his relationship 1 daughter]; Cal. Procedure Trial During (Cont.Ed.Bar 11.19, 1982) p. 455.) § court, when
Similarly, a trial through inadvertence or neglect, fails rule or to reserve its ruling, “the party who objected must make some effort to
44 he is forgotten, If actually pressed point have the court rule. it, if he had failed just deemed have waived or abandoned Witkin, (3d 1986) ed. (3 Cal. Evidence the first objection place.” make the Trial, 1992, also see original; italics Evidence at § Introduction of 212 554 (1989) Cal.Rptr. People [261 1] [failure v. Rhodes Cal.App.3d of voir dire and authorization transcript on motions for rulings secure 41 (1974) People v. Obie waived issues on appeal]; fees investigative 283], ground on another Cal.Rptr. 750 overruled Cal.App.3d [116 109, 120, P.2d v. 20 Cal.3d fn. People Rollo motion waived on Penal Code section 995 ruling to secure [failure 771] People appeal]; Cal.App.2d issued on Staver evidence waived documentary to rule on admission P.2d [failure 700] *26 issue on appeal].) of evidence conditional admission involving
Whether situations applied later on subject ruling to a further or admission of evidence pending proof cases, civil the In both criminal and the rule is the same. objection, by means objection to renew the placed objecting burden is on party (McCormick on ruling that motion. a motion to strike and to obtain a on Annot., 58, 150; (3d 1984) Objec- Evidence—Renewal of Evidence ed. § 12, 22, 3[d].) is true where especially tion A.L.R.2d This 88 § counsel, here the objecting prosecu- trial court admits evidence and invites tor, to make a motion to strike later. a waiver these arise from enforcement of practical consequences
Two us. The before circumstances. first is relevant consequence question strike, evidence before challenged properly Absent a motion to on evidentiary fact. The waiver of the issue consequence, trier of second is not at issue. appeal, record,
If a court’s objector fails to make the factual basis for the trial unclear, result, if not As a ruling may entirely reviewing be left omitted. if it address may court draw incorrect inferences can support ruling, the matter at all.
Here, the on trial court have based its denial of the new trial motion ¿one. testimony considered both objective Alternatively, may have Miller, subjective objective evidence Jurors and coming Manjeot, from the prosecution’s Passmore. Given failure to its evidence objection to perfect jurors’ mental court both subjective processes, this can assume only evidence objective subjective were before the trial properly court Attorney General con- time of At ruling. its oral argument appeal, all the evidence the trial court.6 ceded was before
II Prejudice Did Presumption Prosecution Not Rebut the new Penal Code authorizes a trial court to a motion for grant section 1181 . a fair guilty trial has . . been misconduct which “[w]hen Code, (Pen. and due consideration of case has been ...” prevented; subd. Misconduct exists of forms. Well-established variety § the court in guide rules whether a case of misconduct determining particular warrants a new trial.
Juror misconduct raises a v. Daniels prejudice. presumption 906]; 52 Cal.3d P.2d People Cal.Rptr. (1985) 40 Cal.3d 708 P.2d Stankewitz “It is settled that ‘unless rebuts that prosecution presumption by proof ” resulted, that no prejudice the defendant entitled to a new trial.’ actually *27 (Ibid.) The likelihood of “far less” rebutting is presumption prejudice where, here, “the on offending juror remains and jury participates Daniels, the verdict when juror (People than promptly removed.” supra, 52 Cal.3d at p.
Whether the
raised
misconduct is
presumption
prejudice
by juror
rebutted by
prosecution
must be resolved
through
set forth
analysis
People v.
Marshall
“ ‘The ultimate issue of influence on juror is resolved by reference to test, the substantial effect, likelihood In objective standard. the court must examine the extrajudicial material and then judge whether it is inherently 6Thereafter, this court asked the to parties provide supplemental briefing questions unrelated to waiver. Justice, (2 ABA for Criminal influenced Standards have
likely
juror.’
8-3.7,
8.58.)”
951.)7
(50
p.
Cal.3d at
Commentary, p.
std.
test, and
likelihood
court elaborated on
substantial
Marshall
“
from,
tolerant
and indeed less
is different
emphasized ‘prejudice analysis’
than,
is as
at trial. The reason
error
ordinary
‘harmless-error analysis’
a
. . intro-
trial .
deficiency
integrity
follows.
that undermines
Any
calls for reversal without
duces
fundamental unfairness and
the taint of
[570,]
(See
478 U.S.
prejudice.
actual
Rose v. Clark [1986]
consideration of
threatened
3101].) Such a
deficiency
577-578
L.Ed.2d
106 S.Ct.
that
supports
finding
question
misconduct. When the misconduct in
by jury
impermissibly
at
was
there is
likelihood that
least one
a substantial
detriment,
we
compelled
are
conclude
to the defendant's
influenced
undermined',
circumstances, we cannot
was
under such
integrity
the trial
added.)8
(50
italics
jury
impartial.”
conclude
Cal.3d
these
deliberations.
during
jury
Misconduct
in various forms
occurred
guilt
involve the
question
No.
directs the
“[CALJIC
17.42]
That
that advice
with a
is the law. Without
consideration
penalty.
by
seeing
deflected
a dread of
guilt
its consideration of
be
permit
v. Shannon
the accused suffer the statutory punishment.”
The evidence shows several
Cal.App.2d
P.2d
during
discussed
considered
deliberations.
penalty
addition,
the trial court’s admonition
jurors disregarded
several
(4th
1979)), not
(CALJIC
follow the law as stated
the court
No. 1.00
ed.
1.00,
(CALJIC
supra),
to “decide
“swayed
conjecture”
. . .
No.
all
fact.
. .
received . . . and not from
questions from the evidence
*28
(CALJIC
(4th
other
ed.
pt.)).
source”
No. 1.03
1985 pocket
of Marshall
majority
portion
limiting
7The
this
as
the court’s
to the nature
inquiry
misreads
material.
extrajudicial
may
impact
of
material. A court
also consider the
of
extraneous
314, 321-326,
(See, e.g.,
Glage
v. Hawes Firearms Co.
(1990)
328
Cal.App.3d
226
[276
Marshall
Cal.Rptr.
dramatic
[applied
analysis,
judgment
and reversed
where there was a
430]
jury
“preponderance”].)
shift in
believes
majority
votes after discussion of the word
The
itself
9,
post, p.
timing
(See
48.)
of
the extraneous
information is a factor to consider.
fn.
8Although
in both civil
majority correctly
prejudice applies
states the
of
presumption
cases,
require
approaches
question
and criminal
civil and
cases
criminal
different
presumption
express agreement by
whether
that
has
An
to consider
jurors
been rebutted.
may
required
jury
evidence of insurance in their
in a civil
verdict
be
to establish
misconduct
(See
671],
Gorman v.
(1990)
case.
Cal.App.3d
Cal.Rptr.
218
147 [266
Leftwich
Moore v.
Medicine
Inc.
Group,
Preventive
Medical
(1986)
Cal.App.3d
178
740 [223
However,
859],
Cal.Rptr.
majority.)
juror compels
cited
that one
strict rule
tainted
“[a]
Constitution,
reversal
is necessary
cases because
criminal
under the California
Co.,
supra,
v. Hawes
must
a
Glage
Firearms
unanimously agree
guilty.” (See
defendant
322.)
226 Cal.App.3d
p.
at
law,
not,
whether erroneous or
consti
introduction of extraneous
“[T]he
950;
Marshall,
50 Cal.3d at
see
(People
supra,
p.
tutes misconduct.”
v.
People Honeycutt (1977)
v.
Another concern arises from discussion of or introduction penalty law A juror’s extraneous or fact. duty obligation “includes to follow the court, instructions of the and a conclude judge reasonably who has violated reading instructions refrain from the case or discussing accounts the trial newspaper cannot counted on to follow instructions Daniels, in the future.” supra, 52 Cal.3d at p. made a prosecution two-pronged attack defendant’s allegations First,
jury misconduct. the prosecution referenced declarations in nine which they stated had not heard any discussion of a six-month sentence during deliberations. This to establish purported nothing improper happened. Second, the prosecution argued juror statements “were not penalty if prejudicial even they were admissible” because “were they not made with any apparent authority” and the trial court read the CALJIC No. At 17.42. no time did the its prosecution acknowledge rebut responsibility to presumption prejudice, nor does the General here. Attorney The majority concludes the prosecution rebutted the presumption prej- weak, udice because the evidence of misconduct from came members involved jury, “three isolated statements days two of delibera- during tions,” was not as authoritative presented but “merely and was probable,” “not of such nature as would be relied reasonably upon given the serious- *29 ness of the crime charged.”
Objective reasonableness of the extraneous information is not the standard for determining whether misconduct warrants (See reversal. People v. Mar- shall, supra, 950-951.) Furthermore, 50 Cal.3d at pp. on emphasis au- thoritativeness of the extraneous information legal discounts the imperative to insulate jurors law, from extraneous information or from whatever source.
48 before the 10 to for conviction
The show the stood at jury facts objective heard jurors room. Two jury information was introduced into extraneous for six months only get defendant would juror say probably an unidentified Miller, persuade to attempted had One of those two jurors, what he done. Passmore, “to convince Jean trying to vote juror, guilty. undecided vote,” committed defendant had her Miller out pointed Passmore to change months get he six only and stated “would probably one the overt acts thereafter, done, Shortly in charge.” he had reference to the conspiracy what vote, reached a unanimous her and the changed jury Passmore undecided the likely the information about verdict a verbal vote. Passmore testified her her to vote. change caused penalty the last votes between changed evidence demonstrates the
Objective implied nothing express vote and the last verbal vote.9 There is written of the three the credibility the trial court’s to it ruling suggest questioned defendant’s testimony support who submitted declarations and jurors in an new Here the of the extraneous information motion for trial. use vote, the misconduct and the temporal proximity a attempt change impermissi- one was vote the conclusion “at least change, support Marshall, supra, 50 (People v. influenced to the defendant’s detriment.” bly 951.) Cal.3d at p. not, law, consti- erroneous or introduction extraneous whether
“[T]he Marshall, 950.) The 50 Cal.3d at p. v. tutes misconduct.” law, is, potential a extraneous information here involved matter ante, extraneous, fn. 4 (See only grossly It was not it was erroneous. penalty. received, discussed, Furthermore, 42.) was and consid- information p. ered, disregard of and for the trial court’s willfully and direct violation ante, was, fact, (See 41.) The repeated by instructions. fn. information p. change Miller vote. in an to convince Passmore her effort Holloway, for a v. Justice Panelli People unanimous court Writing impartial declared: “Defendant entitled be tried a jurors. right ‘Because a defendant with crime has unprejudiced charged [citation], the unanimous verdict of 12 settled that impartial jurors single juror conviction stand even has improperly cannot been influ- if ” (1979) 24 (50 enced.’ Cal.3d p. quoting People Cal.3d Pierce 91], added.) 595 P.2d italics majority during 9The states “the record is silent as to when hours between the start concerning penalty and finish of deliberations the statements made or the votes were were following taken. have The final vote been taken well after the statements were made and ante, among opn., properly (Maj. substantial discussion of matters before them.” only reasonable inference is the the “last” written vote and the “last” took verbal vote much beginning. closer end of than the deliberations *30 I and sufficient arguments not find the declarations prosecution’s do Far rebutting presumption, rebut the from presumption prejudice. suggest jury nine declarations additional juror submitted prosecution in the form misconduct of enclave deliberations. not
Although probable may the statements defendant’s concerning penalty have made I do view that fact as any authority, been with not apparent misconduct, in critical this case. of data be type may assessing Here, suggests relevant as the source. the fact the information was repeated fact, did, one at least some credence. juror gave information Passmore her her change undecided after Miller told defendant guilty shortly vote would only get six months jail.
I find the and record reflects a substantial likelihood extraneous erroneous information about defendant’s influenced at least one penalty impermissibly Thus, her change vote. I conclude the trial court abused its discretion the new trial denying motion would reverse.
Ill Section 1150 Excludes Apart Evidence Reasons From Relevance most Perhaps is perplexing majority justifies the rationale which the its immaterial, conclusion juror’s evidence of a subjective reasoning process irrelevant, and therefore to a challenge to a verdict. That validity conclusion forms the basis for of defendant’s majority’s rejection con- I, tention article section (d) subdivision of the California Constitution nullifies section the majority need not reach. The question majority’s analysis of materiality and relevance also of evidence a pertains type court may consider on the question of misconduct the absence of a motion to strike.
I have quarrel no with the majority’s “relevant evidence” in assumption I, California Constitution (d), article section subdivision means the same as “relevant evidence” in section 210. I Nor do its question conclusion section 210 encompasses “materiality” its description “relevance.”10At time, the same I believe the majority’s application ignores section 1150 both the plain language of the statute and its law common origins. Simply 10“While there no relevancy, general universal test of rule might in criminal cases stated as whether or evidence tends logically, naturally, by reasonable inference to any establish fact prosecution material for the sought or to overcome material matter to be proved by be, the defense. Evidence is [Citation.] relevant no when matter how weak it prove jury.” tends to issue before the v. Slocum Cal.App.3d Cal.Rptr. 442].) regarding Concerns reliability go weight. of such evidence to its *31 50 reasons evidence for policy excludes relevant and material section 1150
put, and materiality. from apart relevancy quite verdict, an of a validity
Section
begins, “Upon
inquiry
1150
specified.
received or not received as
may
admissible evidence”
be
otherwise
350), “oth-
(§
is
(Italics added.)
evidence
admissible
only
Because
relevant
then
1150
relevant evidence. Section
erwise admissible evidence” refers to
to show
evidence
admissible
exclusionary
declares a
rule: “No
statutory
statement, conduct, condition,
either
a juror
effect of
or event upon
such
concerning
him to assent to or dissent from verdict
influencing
mental
which it was determined.”
processes by
I
1150 as
cannot
with the
characterization of section
agree
majority’s
”
verdict.’
as to the
of the
“delimiting
‘upon
validity
the issues
inquiry
(Italics
be
added.)
may
proved
Section
limits
merely
facts
(1969) 71
Cal.2d
impeach
verdict.
Hutchinson
132],
den.
The statute evidence mental processes public policy excludes Indeed, material reasons. evidence excluded it is too such because Hutchinson, and too of the misconduct. probative question jury two the view involved balancing Court section 1150 Supreme rejected “ fraud, verdicts, conflicting policies instability need ‘to prevent —the ” “ relief from harassment of and the ‘to jurors,’ give losing party desire ” Instead, (Id. Court 348.) conduct wrongful by jury.’ Supreme wrong concluded “there is no substantial and that the policies conflict (Id. 349.) the individual cannot be considered the lesser of two evils.” at p. Thus, 606(b) Federal Rules majority’s lengthy discussion of rule (28 U.S.C.) of Evidence does no stated more than confirm what was also Hutchinson: there are valid types reasons for some policy excluding roots, evidence offered to Given shared law prove jury misconduct. common it is not the same considerations the basis for both surprising policy provide the federal and state rules. misconduct,
In cases claims of involving and material- relevancy of evidence are ity by determined we have questions already substantive discussed, First, section 1150. been has of misconduct guilty which a fair (Pen. and due consideration of the case has been prevented? Code, 1181, Second, subd. there evidence of gives § which misconduct *32 Third, rise to the is the evidence presumption prosecution prejudice? or, sufficient to rebut the “a presumption there substantial prejudice, likelihood that at least one was influenced defend- impermissibly Marshall, ant’s A detriment”? 50 Cal.3d at p. juror’s subjective reasoning process relevant these questions.
There be grounds other which to upon reject defendant’s argument I, (d), article section subdivision of the California Constitution nullifies However, I section 1150. with cannot agree analysis offered majority. 25, 1992,
A for a petition rehearing denied February appellant’s for review the petition Court was denied Supreme April 1992.