TRC Operating Co. v. Chevron USA, Inc.
102 Cal.App.5th 1040
Cal. Ct. App.
2024
Check Treatment

TRC OPERATING COMPANY, INC., et al., Plaintiffs, Cross-defendants and Appellants, v. CHEVRON USA, INC., Defendant, Cross-complainant and Appellant.

F083724 (Super. Ct. No. S1500-CV-282520_JEB)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 6/21/24

CERTIFIED FOR PUBLICATION

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. David R. Lampe, Judge.

Quinn Emanuel Urquhart & Sullivan, Sara L. Pollock, Kathleen M. Sullivan, Christopher Tayback, Scott L. Watson, B. Dylan Proctor, Valerie Lozano, Dylan C. Bonfigli for Plaintiffs, Cross-defendants and Appellants.

Horvitz & Levy, John F. Querio, Jeremy B. Rosen, Andrea L. Russi, Christopher D. Hu; Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Marcellus A. McRae, Thomas A. Manakides, Blaine H. Evanson; Bright and Brown, James S. Bright, Maureen J. Bright, and Kristin G. Taylor for Defendant, Cross-complainant and Appellant.

-ooOoo-

TRC Operating Co., Inc. and TRC Cypress Group, LLC (collectively TRC) and Chevron U.S.A., Inc. (Chevron) are oil producers operating adjacent well fields they own or lease in Kern County, west of Taft. Both companies pump from a shared underground oil reservoir, commonly known as Midway-Sunset oil field, and both engage in a process referred to as “cyclic steaming” to make the extraction process more efficient. This process involves injecting high-pressure steam down a wellbore, which then both fractures the surrounding rock and makes the oil contained in that rock less viscous, making the oil easier to pump out.

In 1999, a “surface expression” formed near a particular Chevron well, known as Well 20. A surface expression occurs when the steaming of the wells causes a lateral fracture from the wellbore, and thus allows oil and other effluent to escape from the wellbore and seep to the surface. Despite Chevron‘s attempts at remediation, in the summer of 2011 an eruption occurred in the area of the Well 20 surface expression, shooting pressurized steam and oil into the air, like a geyser. This eruption also caused a sinkhole to form, which killed a Chevron employee. Similar eruptions followed over the succeeding months, and the state oil and gas regulator—the Division of Oil, Gas and Geothermal Resources (DOGGR)1—issued various orders preventing steaming in the area of the Well 20 surface expression. These orders encompassed land that was leased or owned by Chevron as well as TRC. These shutdown orders lasted four years.

TRC sued Chevron, claiming Chevron‘s negligent maintenance and operation of its property for many years led to dangerous conditions which made it unsafe to perform cyclic steaming operations. These conditions led to the DOGGR shut-down orders, and to TRC‘s harm and damages. Chevron countersued, claiming TRC‘s failure to adequately maintain its own wells was the cause of the surface expression, the 2011 eruptions, and damages suffered by Chevron.

The case proceeded to a jury trial in 2021. TRC argued Chevron was the sole cause of TRC‘s cessation of steaming operations from 2011 to 2015. Chevron argued TRC stopped steaming operations solely because of the DOGGR shut-down orders, which were therefore a superseding cause of any harm suffered by TRC. Chevron also argued TRC was the cause of Chevron‘s harm because it negligently maintained and operated its steaming processes over the years. The jury found in favor of TRC, awarding approximately $120 million in damages against Chevron. Nothing was awarded to Chevron.

Chevron filed motions for a new trial and for judgment notwithstanding the verdict (JNOV). The trial court denied the JNOV, but granted a new trial based on misconduct by Juror No. 10, because he failed to disclose (1) a 40-year-old criminal conviction which would have rendered him ineligible to serve as a juror, because he should have registered as a sex offender and (2) his status as a party to a personal injury lawsuit nine years earlier. TRC appeals the granting of this motion, arguing Juror No. 10 was not ineligible, because the criminal statute under which he was likely required to register as a sex offender was not listed in the juror eligibility statute. TRC also argues no prejudice resulted from the juror‘s failure to disclose his prior criminal conviction or the previous civil lawsuit. We agree with both arguments.

We interpret the juror eligibility statute to mean that Juror No. 10‘s out-of-state conviction did not make him ineligible. Also, on the question of prejudice to Chevron, we conclude the trial court used an improper definition of bias in determining prejudice was established. To remedy this legal error, we conduct a de novo review of the record and apply the appropriate definition of bias. Under the circumstances, we conclude Juror No. 10‘s failure to disclose the prior court cases in which he was involved did not show bias against Chevron or for TRC or bias as to any issue presented to the jury. Alternatively, assuming he was statutorily ineligible, we also would conclude his concealment of information was not prejudicial to Chevron. Accordingly, we reverse the grant of a new trial.

Chevron also filed a protective cross-appeal, in the event we found against it on TRC‘s appeal. Chevron appealed the denial of its JNOV, arguing that both factually and as a matter of law, DOGGR‘s orders to stop steaming were the superseding cause of any harm suffered by TRC and precludes it from bearing any liability. We conclude sufficient evidence was introduced to sustain the verdict, demonstrating TRC did not stop any of its steaming operations solely because of the DOGGR orders, which were therefore not a superseding cause. We also reject Chevron‘s claims that (1) the jury instructions on causation were erroneous; (2) the damages awarded were excessive because TRC failed to prove or apportion the amount of damages attributable to Chevron, as distinguished from the amount attributable to the DOGGR orders; and (3) the verdict form lacked critical factual findings necessary for the jury to award prejudgment interest.

We reverse the trial court‘s order granting a new trial, and remand with instructions to reinstate the judgment against Chevron.

FACTS

Much of this case relates to a surface expression near Chevron‘s Well 20. Well 20 was located near the property line between Chevron and TRC, and was a non-operational well that was severely damaged. The first surface expressions formed around Well 20 in 1999, followed shortly thereafter by the first “high energy event“—Chevron‘s expert explained this meant an eruption of pressurized steam “shoot[ing] up into the air 30, 40, 50 feet like a geyser“—which occurred in February 2000. The current Well 20 surface expression which formed much of the factual predicate for this case originated in July 2007.

Chevron first attempted to manage the Well 20 surface expression by using an earthen berm with netting over top of it, and a mechanical pump. Chevron also attempted to “reabandon”2 Well 20 by pouring cement into it, which failed again to seal off Well 20. Additionally, because of the persistent nature of the Well 20 surface expression, Chevron adopted a policy of not steaming other wells within a 300-foot, and then 500-foot, radius in February 2008 and July 2010.

TRC introduced evidence that the cause of the surface expression was Chevron‘s failure to appropriately abandon its nearby wells. In particular, TRC pointed to Well 20, which was known to be a damaged well that had to be reabandoned after initial attempts to abandon it failed, allowing steam and oil from other nearby wells to travel at least partially up the wellbore and into the surrounding upper layers of the earth. However, Chevron failed to perform the necessary work on Well 20 in the years prior to the June 2011 eruptions that formed the crisis point in this case. Additionally, Well 202 and Well H235, both owned by Chevron and in the immediate vicinity of Well 20, were inappropriately maintained and/or abandoned, and likely contributed to the Well 20 surface expression. Chevron also attempted to reabandon Wells 202 and H235 at various points, again indicating they were not appropriately abandoned initially.

In October 2010, DOGGR ordered Chevron to fix the Well 20 surface expression. In response, Chevron installed a “French drain” in April 2011, which aimed to eliminate the visibility of the surface expression by collecting the fluids and seep in an underground container which could then be pumped up and taken away. The French drain was not designed to eliminate the problems that caused the surface expression in the first place, but instead to capture the surface expression close to but below the surface, so that it could not be seen with the naked eye. While French drains often are used to dissipate fluid back into the ground, this one was designed to allow the fluid to be pumped out instead of dissipated.

The French drain did not apparently resolve the problems with Well 20.3 A few months after its installation, in June and July 2011, steaming in the area of Well 20 caused several explosions or eruptions in the vicinity of the Well 20 surface expression, as well as the opening of a sinkhole which killed one Chevron employee.4 Witnesses testified seeing a “volcano-like eruption” spewing hot steam out of the area. Chevron had begun steaming Well H235 immediately before these eruptions, which TRC linked to the eruptions because Well H235 was itself damaged and had up to this point been on an internal “do-not-steam” list maintained by Chevron.

Following these eruptions and the death on Chevron‘s property, in July 2011, DOGGR began issuing orders to curtail the use of cyclical steaming in the vicinity of Well 20.5

In August 2011, two new surface expressions appeared in the vicinity of Well 20, and additional eruptions occurred, which caused TRC to stop steam injection on its property that was near Well 20 as well. The eruptions and surface expressions occurring on Chevron‘s property during summer 2011 also caused seep and other fluids to flow onto TRC‘s property. Following the eruptions, TRC stopped steaming approximately 65 percent of its wells for “safety reasons,” tested its wells to ensure they were not the cause of the surface expressions, and took remedial actions to contain the surface expressions that were emerging. TRC did not resume steaming until July 2015.

PROCEEDINGS

In July 2014, TRC initiated this litigation by filing a complaint for damages in the Kern County Superior Court alleging claims for negligence, private nuisance, and strict liability against Chevron. Chevron demurred and in December 2014, the trial court sustained the demurrer and issued a stay based on the doctrine of primary jurisdiction, because related proceedings were then pending before DOGGR. The case remained stayed for two years, until the court granted TRC‘s motion to lift the stay in December 2016 and granted TRC leave to amend. An amended complaint was later filed, adding a claim for trespass and making other changes. In May 2017, Chevron filed a cross-complaint for negligence, trespass, nuisance, and declaratory relief.

In November 2020, TRC filed its operative second amended complaint. Chevron‘s answer included a general denial and several affirmative defenses, one of which alleged the DOGGR orders were the superseding cause of any damages suffered by TRC.

After extensive discovery and litigation, the case proceeded to trial in July 2021. The case was submitted to the jury on Friday, September 17, 2021, with the jury returning a general verdict the following Monday, finding 11-1 that TRC had proven its claims against Chevron. The jury awarded $73,039,191 to compensate TRC for the harm caused by Chevron and found TRC was entitled to prejudgment interest. The jury found 11-1 against Chevron on its counterclaims against TRC.

Chevron timely filed motions for JNOV and a new trial. Chevron‘s motion for new trial was supported by declarations and a request for judicial notice of court documents in cases involving Juror No. 10. TRC‘s opposition to the motion for new trial included declarations from nine jurors.

Following briefing and an October 20, 2021 hearing, the trial court filed a written ruling concluding the evidence adequately supported the jury‘s verdict as to both the amount of damages and causation and denying Chevron‘s motion for JNOV. The ruling also addressed Chevron‘s five grounds for a new trial. The court granted a new trial, finding Juror No. 10 had committed misconduct by failing to disclose his involvement in a prior civil court case and, most importantly, a felony sexual offense case from 1982. The court considered and rejected the alternate grounds for a new trial, determining sufficient evidence supported the jury‘s findings regarding causation and the amount of damages for the same reasons it denied the motion for JNOV. The court also determined Chevron‘s claims about instructional error and false testimony by TRC witnesses did not warrant a new trial.

The trial court‘s ruling also addressed TRC‘s motion for a determination of the amount of prejudgment interest. The ruling set forth an analysis of the evidence and legal issues and the court‘s agreement with TRC‘s calculation of prejudgment interest in the amount of $47,456,101. As instructed by the ruling, on October 26, 2021, the clerk of court entered judgment for just over $120 million. The ruling also stated: “After entry of the judgment, the court denies the Motion for JNOV, and grants the Motion for New Trial for the reasons herein stated.” This unusual sequence was adopted because the trial judge was retiring.

In November 2021, TRC filed a motion to reconsider the grant of Chevron‘s motion for a new trial. The motion was supported by a declaration from a juror whose declaration had not been included in TRC‘s papers opposing Chevron‘s motion for a new trial. The court granted TRC‘s motion for reconsideration, considered TRC‘s new evidence, but ultimately affirmed its earlier ruling. TRC timely appealed, and Chevron filed a protective cross-appeal.

DISCUSSION

I. THE MOTION FOR A NEW TRIAL WAS ERRONEOUSLY GRANTED

A. Basic Legal Principles

1. Motions for New Trial

A verdict may be vacated and a new trial granted for an “[i]rregularity in the proceedings of the court, jury or adverse party” that prevents any party from having a fair trial or for “[m]isconduct of the jury; and ... such misconduct may be proved by the affidavit of any one of the jurors.” (Code Civ. Proc., § 657, subds. 1, 2.)6 A new trial is authorized only if the irregularity or misconduct materially affected the substantial rights of the moving party (§ 657)—that is, it must be prejudicial. One practice guide states that when a trial court is considering a new trial motion based on jury misconduct, it must undertake a three-step inquiry and decide (1) whether affidavits supporting the motion are admissible, (2) whether the evidence establishes misconduct occurred, and (3) whether the misconduct was prejudicial. (3 Fairbank, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2023) ¶ 18:140.1, p. 18-39.) The test for prejudice is whether there is a reasonable probability that a result more favorable to the moving party would have been obtained in the absence of the juror misconduct. (; see [error is harmless if it is not reasonably probable moving party would have obtained a more favorable result in its absence]; (Hasson) disapproved on other grounds by [in juror misconduct case, reasonable probability standard applied].)

2. Standards of Review

The proper standard or standards of review applicable to the trial court‘s order granting the motion for new trial based on juror misconduct is disputed by the parties. TRC contends orders granting a new trial generally are reviewed for an abuse of discretion but any trial court determination underlying such an order is reviewed under the standard or test appropriate for the type of issue resolved by that determination. In particular, TRC contends (1) findings resolving issues of fact are reviewed under the substantial evidence standard, (2) interpretations and applications of statutes and decisional law resolve issues of law and are reviewed under the de novo standard, and (3) the determination that prejudice arose from juror misconduct presents a mixed question of law and fact subject to independent review on appeal.

Chevron recognizes the general rule that the abuse of discretion standard applies to orders granting a new trial and contends an abuse occurs only if the grant is so irrational and arbitrary that no reasonable person could agree with it. Furthermore, Chevron contends that this traditional rule prevents the reviewing court from substituting its judgment for a trial court‘s determination that an error or irregularity was prejudicial, and that great deference is afforded orders granting new trials on the ground of juror misconduct. Chevron states “TRC is correct that certain statutory interpretation questions are subject to de novo review,” but asserts “the new trial order can be affirmed based on the trial court‘s factual findings and exercise of discretion alone.”

Initially, we note that the parties have cited and (Aguilar), which refer to the abuse of discretion standard. After Ault and Aguilar were issued, our Supreme Court provided the following clarification of the abuse of discretion standard of review:

“The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court‘s ruling under review. The trial court‘s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” ( (Haraguchi); see (Vosburg); [abuse of discretion standard is not unified; a more specific rule might apply once the appellate court has identified the particular aspect of the trial court‘s determination being challenged].)7

In (Lee), this court referred to Aguilar and Ault and concluded those cases established the principle that “when we apply the abuse of discretion standard in an appeal from an order granting a new trial, ‘any determination underlying any order is scrutinized under the test appropriate for such determination.‘” (, quoting .) This principle is consistent with Haraguchi, and we conclude it applies in this appeal from the order granting Chevron a new trial.

The three standards of review identified in Haraguchi do not cover in detail the full variety of determinations made by a trial court. The first two standards—substantial evidence review of findings of fact and de novo review of questions of law—are commonly applied. For example, in Vosburg, this court recognized the abuse of discretion standard applied to decisions on motions for attorney fees under section 1021.5 and acknowledged that, under the description of an abuse of discretion set forth in Haraguchi, legal conclusions are reviewed de novo and findings of fact are reviewed for substantial evidence. (.)

The third category of trial court determinations, which Haraguchi described as the “application of the law to the facts” (), can be divided into recognized subcategories. In Vosburg, we stated that, in some circumstances, the application of the statute‘s criterion to the facts could present a mixed question of law and fact. (.) We concluded that if factual questions predominate, a deferential standard of review applies and, alternatively, if the material facts are largely undisputed, the mixed question is treated as a question of law subject to de novo review. (Ibid.; see [de novo review applies where the issue is purely or “predominately one of law“].) Our Supreme Court has explained how to differentiate between mixed questions of law and fact by stating:

“Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.” (.)

The last type of trial court determination that requires the application of the law to the facts involves a statute or rule of law that commits a particular issue to the court‘s discretion and requires the court to weigh various factors and choose from a range of possible outcomes. (; see [abuse of discretion standard measures whether act of lower tribunal falls within permissible range of options set by the legal criteria].) This standard does not apply in this appeal and, consequently, we need not describe it in detail.

To summarize, when a trial court grants a motion for new trial, we conclude the following standards of review apply to the various determinations made. Findings of fact and mixed questions of law and fact where factual questions predominate are reviewed under the substantial evidence standard. The resolution of pure questions of law and mixed questions of law and fact that are predominantly legal are subject to de novo review. (; [de novo standard of review applied to determination of jury instructions’ correctness].) Part I.E. of this opinion explains why the de novo standard of review applies to whether the juror misconduct was prejudicial.

B. Trial Court‘s Determinations Relating to Juror Misconduct

1. The Finding of Misconduct

The trial court determined jury misconduct occurred because Juror No. 10 (1) was statutorily ineligible to serve as a juror and (2) had deliberately concealed information in answering the juror questionnaire. These grounds are not completely separate because some undisclosed information related to his eligibility for jury service.

Concerning the first, the court found Juror No. 10 had previously been convicted of the crime of “indecent liberties” with a minor in Washington State in the 1980s and concluded he was required by California law to register as a sex offender when he moved here. The court also concluded he was ineligible to serve as a juror under Code of Civil Procedure section 203, which prohibits those required to register as a sex offender under Penal Code section 290 from serving as jurors.

Concerning the second, the court found Juror No. 10 had not disclosed this prior conviction on his questionnaire in response to the directive “If you have ever been to court for any reason (excluding divorce[)], please explain,” and this failure to disclose information constituted misconduct. Addressing Juror No. 10‘s subjective state of mind, the trial court found he was of competent mind despite his age, he failed to answer the question honestly “to avoid embarrassment,” any claim that he did not understand the question was a pretext, and he did not forget or inadvertently fail to disclose the information. The court noted: “No one forgets such serious charges.”

The court also found Juror No. 10 had been a party to his spouse‘s personal injury suit, in which he pursued his own claim for loss of consortium, and he failed to honestly respond when he left a blank answer to the question asking, “[i]f you or anyone close to you has ever made a claim for money damages, explain.” The trial court found the failure to disclose the truthful answers to the inquiries was willful and deliberate, and therefore constituted misconduct. As a result, the court proceeded to the question of whether the two instances of misconduct were prejudicial.

2. Trial Court‘s Prejudice Determination

The trial court‘s October 2021 ruling addressed prejudice by reiterating its findings that Juror No. 10‘s nondisclosures were deliberate and its disbelief of the assertion in his declaration that he did not understand the questions. The ruling included the court‘s findings that Juror No. 10 refused to follow the court‘s instructions; he played a large role in jury deliberations by being loud and opinionated; he intimidated another juror from freely discussing the conduct of TRC in causing damages; and he was otherwise ineligible. After setting forth these findings, the ruling stated: “Was he biased? The court is here confronted with an obstinate, untruthful, obstreperous, contemptuous, ineligible and entitled juror, refusing the orders of the court, who was loud, opinionated and intimidating in jury deliberations, and whose participation influenced the outcome.” A footnote to this sentence stated: “The court cannot divorce the court‘s conclusion that the juror was ineligible from its evaluation [of prejudice].” The court then addressed TRC‘s arguments about the absence of juror bias and the inability to demonstrate prejudice in a civil case where the jury verdict was 11 to one. After rejecting those arguments, the court granted Chevron‘s motion for a new trial on the ground of prejudicial juror misconduct.

The trial court‘s reasoning was explained further in its December 2021 order on TRC‘s motion for reconsideration. The court stated the issue “presented is by what standard does the court determine prejudice from juror misconduct in a civil case, when the misconduct is intentionally undisclosed facts rendering the juror ineligible and unqualified, when there is no actual misconduct during deliberations, and when there is a sufficient vote of at least nine qualified jurors in favor of the verdict.” The court stated it was a close question and reasonable minds could differ on the impact of Juror No. 10‘s conduct. The court was convinced that his prominent participation in the jury deliberations was sufficient to infect the verdict and the integrity of the trial. As a result, the court confirmed its order granting a new trial. The court acknowledged the importance of the eligibility question to its conclusion by stating that “if this court is wrong that the revealed facts render the juror legally ineligible, then the motion for new trial should be denied.”

C. Juror No. 10 Was Not Statutorily Ineligible to Serve as a Juror

Our analysis of juror misconduct and prejudice begins with whether Juror No. 10 was ineligible to serve as a juror. This question involves the interpretation and application of Code of Civil Procedure section 203 and the Penal Code provisions governing the registration of sex offenders. There is no dispute about the underlying facts of Juror No. 10‘s prior conviction. As a result, the interpretation and application of section 203 presents a pure question of law subject to de novo review. (See ; .)

The court‘s mission in statutory interpretation is to give effect to the command of the Legislature and interpret the Legislature‘s intention in enacting the statute in the manner it did. (§ 1859 [“In the construction of a statute the intention of the Legislature ... is to be pursued“]; [“[T]he fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature.“]; [” ’ ” ‘When we interpret the meaning of statutes, our fundamental task is to ascertain the aim and goal of the lawmakers so as to effectuate the purpose of the statute.’ ” ’ “]. ) The Legislature has noted our role in statutory construction is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.” (§ 1858.) Accordingly, courts first look at the statute‘s words, giving them their usual, ordinary meaning because those words, having run the legislative gauntlet, are generally the most reliable indicator of legislative intent. (.)

When the statutory language, standing alone, is clear and unambiguous—that is, it has only one reasonable construction—courts usually adopt the plain or literal meaning of that language. (.) The plain meaning rule is subject to exceptions. (Ibid.; ; see [where a party contends a latent ambiguity exists, a court may not simply adopt a literal construction and end its inquiry].) The exceptions apply when adopting the literal meaning of the statutory text “would (1) produce absurd consequences that the Legislature clearly did not intend or (2) frustrate the manifest purposes that appear from the provisions of the legislation when considered as a whole in light of its legislative history.” (; ; see also, [nonliteral construction of Prop. 64 adopted based on evidence of underlying purpose and voter intent]; [a well-established canon of statutory construction provides that literal language should not defeat the plain purpose of the statute]; [plain meaning of constitutional provision rejected to avoid absurdity].)

Alternatively, when the statutory language is ambiguous, a court‘s primary goal is to adopt the interpretation that best effectuates the legislative intent or purpose. (.) “To identify a statute‘s purpose and the underlying legislative intent, courts may look to such aids as legislative history, the maxims of statutory construction, and the consequences of a particular interpretation, including its impact on public policy.” (Ibid.)

1. The Juror Eligibility Statute

The language of the juror eligibility statute is relatively straightforward. California starts with the presumption that every person is eligible to serve as a juror. (§ 203, subd. (a).) The statute then sets out a list of exceptions, stating, as relevant to this case, “[a]ll persons are eligible and qualified to be prospective trial jurors, except ... [p]ersons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction.” (§ 203, subd. (a)(11).) Here, the parties dispute whether this provision should be interpreted as encompassing only those subject to registration pursuant to Penal Code section 290, which Juror No. 10 was not, or should be interpreted more expansively to include all those subject to a registration requirement pursuant to Penal Code sections 290 to 290.024. These Penal Code sections are known as the Sex Offender Registration Act and we consider them next.

2. Sex Offender Registration Requirements

Penal Code section 290 mandates that “[e]very person described in subdivision (c), for the period specified in subdivision (d) while residing in California, or while attending school or working in California,” shall register with the local chief of police or sheriff, as well as the chief of police of any state university campus. (Pen. Code, § 290, subd. (b).) This registration shall occur within “five working days” of coming to or changing one‘s residence to California. (Ibid.) Thus, subdivision (b) creates a registration requirement under Penal Code section 290.

Subdivision (c) of Penal Code section 290 defines who must register as a sex offender amongst those convicted of crimes under California law. In relevant part, the provision states individuals convicted “in any court in this state or in any federal or military court” of one of a long list of crimes “shall register.” (Pen. Code, § 290, subd. (c)(1).) The constituent crimes which result in required registration include the following: (1) “a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape“; and (2) “any act punishable” under approximately 40 separately enumerated sections of the Penal Code, as well as “any statutory predecessor that includes all elements of one of the offenses described in this subdivision.” (Ibid.) Also required to register is “any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the offenses described in this subdivision.” (Ibid.) Conspicuously absent from this list are those convicted of sexual offenses outside of California.

Penal Code section 290, subdivision (d) sets forth the amount of time for which a person identified in subdivision (c) must register, and is broken down into three tiers. Specifically, “[a] person described in subdivision (c), or who is otherwise required to register pursuant to the Act shall register for 10 years, 20 years, or life, following a conviction and release from incarceration, placement, commitment, or release on probation or other supervision, as follows.” (Pen. Code, § 290, subd. (d), italics added.) The italicized language denotes that subdivision (d) sets forth the time requirements for registration, whether the registration requirement is imposed by Penal Code section 290 or another section. So-called “tier one offenders” are required to register for a minimum of 10 years. (Id., subd. (d)(1)(A).) “A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony.” (Ibid.) Tier two offenders are required to register for at least 20 years, and are defined as those convicted of a limited number of enumerated offenses. (Id., § 290, subd. (d)(2)(A).) Tier three offenders are required to register for life, and include those convicted of any number of a lengthy list of statutes. (Id., § 290, subd. (d)(3)(A)–(R).)

Next, subdivision (d)(4) of Penal Code section 290 concerns how to categorize the registration requirement for a person who is required to register under a separate statute, Penal Code section 290.005, which addresses registration requirements for those convicted of sex-related crimes outside of California. Generally, “[a] person who is required to register pursuant to Section 290.005 shall be placed in the appropriate tier if the offense is assessed as equivalent to a California registerable offense described in subdivision (c).” (Pen. Code, § 290, subd. (d)(4)(A).) However, if there is no equivalent California offense, a person required to register under Penal Code section 290.005 “shall be subject to registration as a tier two offender,” except in certain more severe cases, where the person can become subject to registration as a tier three offender. (Pen. Code, § 290, subd. (d)(4)(B).) Therefore, Penal Code section 290, subdivision (d) sets forth the time for which a registration requirement is imposed, whether by Penal Code section 290 or another section.

A number of succeeding statutes require registration of individuals not convicted of California crimes, such as those civilly committed as sexually violent predators (Pen. Code, § 290.001); those found not guilty by reason of insanity for registerable crimes (id., § 290.004); and most pertinent to this case, individuals convicted of certain crimes outside California (id., § 290.005). Penal Code section 290.005, subdivision (a) requires any person “convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state ... would have been punishable as one or more of the offenses described in subdivision (c) of Section 290” to register as a sex offender. Whether an out-of-state conviction would have been punishable as a registrable California offense is based on either (1) “the elements of the convicted offense“; (2) “facts admitted by the person“; (3) “facts ... found true by the trier of fact“; or (4) “stipulated facts in the record of military proceedings.” (Ibid.) Also required to register are people ordered to do so by any other court, “if the court found at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.” (Pen. Code, § 290.005, subd. (b).) The statute also generally mandates that people register if they “would be required to register while residing in the state of conviction.” (Id., § 290.005, subd. (c).) However, there are a number of exceptions to this last requirement, and a person required to register in the state of conviction is not required to register in California for certain crimes, unless the out-of-state offense “contains all of the elements of a registerable California offense described in subdivision (c) of Section 290.” (Id., § 290.005, subd. (d).)

To summarize this lengthy statutory scheme, Penal Code section 290, subdivision (b) sets a registration requirement; Penal Code section 290, subdivision (c) defines the California statutes for which a conviction will require registration; and Penal Code section 290, subdivision (d) sets the amount of time for which registrants—regardless of which statute imposes the requirement—must register. Generally, registration is required for 10 years for those convicted of misdemeanors and certain felonies that are neither serious nor violent, 20 years for those convicted of a limited number of felonies, and life for those convicted of the majority of felonies. One may also be required to register in certain circumstances even if not convicted of the enumerated California crimes, and Penal Code section 290.005 requires people who were not convicted under California‘s Penal Code to register, if they were convicted of certain out-of-state crimes. Out-of-state crimes must be analyzed against California statutes to determine whether they would qualify, considering their elements and/or the facts admitted or established in the

proceeding. The length of time for which a person with an out-of-state conviction must register varies, but also relies upon a comparison with relevant California statutes and the crime of conviction, including its statutory elements and/or admitted or established facts.

3. Application of Statutory Scheme to Juror No. 10

With this statutory backdrop, we interpret the juror eligibility statute and apply that interpretation to the facts of this case. It is undisputed Juror No. 10 was not required to register as a sex offender pursuant to section 290 of the Penal Code. For purposes of this appeal only, we assume he was required to register as a sex offender pursuant to section 290.005 of the Penal Code. This assumption is based on his prior conviction for “indecent liberties” with a minor under Washington Revised Code, section 9A.44.100(1)(b) in 1982.

The trial court reviewed the Washington statute, as it existed at the time of conviction, which essentially criminalized “sexual contact with a minor for sexual gratification.” Juror No. 10 pleaded guilty, and in doing so admitted he had “sexual contact” with a minor in December 1981 or January 1982. A clinical psychologist‘s report reflected Juror No. 10 had self-reported “that the abuse occurred approximately once a week for four months.” The Washington court sentenced Juror No. 10 to a 10-year deferred sentence, 90 days in jail, and outpatient therapy. No registration was then required because Washington did not enact mandatory sex offender registration until 1990. Juror No. 10 was released from probation after five years upon a psychologist‘s recommendation, and the Washington court allowed him to withdraw the finding of “guilty” and enter a plea of “not guilty,” and thereafter dismissed the case, in March 1987.

The trial court concluded Juror No. 10, who had apparently not registered as a sex offender within California, was required to register pursuant to Penal Code section 290.005.8 The trial court reviewed the statutory elements of Washington Revised Code, section 9A.44.100(1)(b), compared them to the 1982 version of Penal Code section 288, considered the factual bases Juror No. 10 acknowledged in the psychologist‘s report, and concluded Juror No. 10 would have violated Penal Code section 288, had the crime occurred in California. Conviction under Penal Code section 288 would have required registration as a sex offender under Penal Code section 290. Accordingly, the court concluded Juror No. 10 was required to register as a sex offender pursuant to Penal Code section 290.005.

The trial court referred to Penal Code section 290, subdivision (a), which states in full: “Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to ‘the Act’ in those sections are to the Sex Offender Registration Act.” The court then stated: ”Penal Code section 290.005 provides that persons convicted of qualifying crimes out-of-state ‘shall register in accordance with the Act.’ Section 203 ineligibility includes persons registrable under section 290.005.” Thus, the court interpreted the ineligibility provision of section 203, subdivision (a)(11) to apply to anyone who must register under the Sex Offender Registration Act. In short, the court adopted a nonliteral interpretation of section 203 by substituting the entire Sex Offender Registration Act for the Legislature‘s reference to Penal Code section 290.

Section 203, the juror eligibility statute, requires three elements for a person to be ineligible to serve as a juror based on a sex offender registration: a person must (1) “currently” be; (2) “required to register as a sex offender pursuant to Section 290 of the Penal Code“; (3) “based on a felony conviction.” (§ 203, subd. (a)(11).) The use of “currently” means the ineligibility provision does not reach a person previously required to register as a sex offender pursuant to Penal Code section 290, but no longer required to do so. The phrase “based on a felony conviction” means the provision does not disqualify from service a person required to register under Penal Code section 290 due to a misdemeanor conviction. Thus, a portion of the persons clearly required to register by Penal Code section 290—certain persons convicted of misdemeanors—are not ineligible to serve as jurors. (See Pen. Code, § 290, subd. (d)(1)(A) [noting those convicted of eligible misdemeanors are required to register for 10 years].) Lastly, the language refers only to persons required to register as a sex offender under Penal Code section 290. This wording does not reach persons required to register under other Penal Code sections.

Contrary to the plain language of section 203, the trial court equated felons required to register under Penal Code section 290 with felons required to register under the Sex Offender Registration Act. Section 203—whether in subdivision (a)(11) or elsewhere—does not reference the “Sex Offender Registration Act” generally, or “[Penal Code] sections 290 to 290.024” more particularly. Instead, it only references those required to register pursuant to section 290 of the Penal Code.

Besides the literal or plain meaning of “section 290 of the Penal Code” (§ 203, subd. (a)(11)), other linguistic and structural references within section 203 support the conclusion that juror ineligibility does not extend to those required to register under other provisions. The Legislature, in drafting section 203, clearly knew how to refer to a wider group of statutory provisions when it wished to do so. Section 203 specifies that those ineligible for jury service include “[p]ersons who are not domiciliaries of the State of California, as determined pursuant to Article 2 (commencing with Section 2020) of Chapter 1 of Division 2 of the Elections Code.” (§ 203, subd. (a)(3).) By this reference, the Legislature clearly intended for an interpreting court to refer to the entire article, starting with a particular code section, of a specific chapter in a specific division of the Elections Code. By way of comparison, section 203, subdivision (a)(11) does not make ineligible those required to register pursuant to chapter 5.5 of title 9 of part 1 of the Penal Code. The fact that, in another provision of the very same statute, the Legislature invoked a wider range of statutory provisions by reference to chapter and division indicates the Legislature was well aware of how to craft its language more broadly, if it chose to do so. This suggests the decision not to do so in section 203, subdivision (a)(11) was intentional.

Chevron asserts “the requirement to register under section 290.005 is incorporated into section 290.” However, Chevron merely points to the introductory language of section 290, subdivision (a), stating that “Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to ‘the Act’ in those sections are to the Sex Offender Registration Act.”9 (Pen. Code, § 290, subd. (a).) This is irrelevant because section 203 contains no references to “the Sex Offender Registration Act.” Subdivision (a)(11) refers to “Section 290 of the Penal Code.” Were the language of section 203 drafted differently, our analysis would correspondingly change. But we are not free to rewrite the statute or create new categories of juror ineligibility the Legislature has not seen fit to create. (See § 1858.)

Well established principles of statutory interpretation also support our reading of section 203. The canon of statutory interpretation known as expressio unius est exclusio alterius, i.e., the express mention of one thing excludes all others, supports this interpretation of the statute. “Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.” (; .) More recently, our Supreme Court has explained in some detail when the inference permitted by this maxim arises: “when there is some reason to conclude an omission is the product of intentional design.” (.) “The text must contain a specific list or facially comprehensive treatment,” because the inference arises only because the Legislature is presumed not to leave out key terms from a comprehensive list. (.)

This is precisely the circumstance we face here. Section 203 states “[a]ll persons are eligible and qualified to be prospective trial jurors.” (§ 203, subd. (a).) It then provides a specific list of exemptions—that is, a list of people who are not eligible to be trial jurors. It closes this list by specifically noting, “[N]o person shall be excluded from eligibility for jury service in the State of California, for any reason other than those reasons provided by this section.” (§ 203, subd. (b).) This is the type of comprehensive list from which we can and should imply an omission has significance. The Legislature has omitted any other registration requirement under the Sex Offender Registration Act from juror ineligibility, except for those “currently” required to register under Penal Code section 290 “based on a felony conviction.” (§ 203, subd. (a)(11).) These specific requirements imply the Legislature intended to exclude others not expressly listed.

We recognize that our Supreme Court had cautioned that the maxim about exclusionary lists cannot be applied inflexibly, particularly “if its operation would contradict a discernible and contrary legislative intent,” or “if doing so would result in absurd consequences that the Legislature could not have intended” (; [”expressio unius est exclusio alterius is no magical incantation, nor does it refer to an immutable rule“].) However, having considered Chevron‘s arguments to the contrary, we conclude this maxim is appropriate here.

First, Chevron has not identified a discernible and contrary legislative intent. Chevron argues that inferences about legislative intent should be drawn from a broad reference in legislative materials to permitting some felons to serve on juries if they are ” ‘not required to register as a sex offender because of a felony conviction.’ ” We will not infer a specific legislative intent from this general reference because the inference is weaker than those inferences drawn from the express language of section 203 itself—language that is the more reliable indicator of intent.

Second, we consider Chevron‘s argument that the plain meaning of section 203 produces absurd consequences. We previously have recognized that the absurdity exception should be used sparingly and only in extreme cases to avoid a judicial infringement of the Legislature‘s separate power. (.) Here, Chevron argues a literal interpretation would result in absurd consequences because it would bar someone convicted of a sex offense in this state from jury service while allowing someone convicted of a similar sex offense in another state to serve on a jury.

We conclude this apparent inconsistent treatment of sex offenders does not create absurd consequences that justify rewriting section 203 to expand ineligibility. Instead, this is a situation where the practical needs of the trial management process justify bright lines that are easy to administer at the expense of more nuanced and precise results. As TRC notes, the process of deciding a person who committed an offense in another state is required to register as a sex offender in this state is hardly straightforward. Penal Code section 290.005 mandates any person “convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, based on the elements of the convicted offense or facts admitted by the person or found true by the trier of fact or stipulated facts in the record of military proceedings, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290” is required to register as a sex offender. (Pen. Code, § 290.005, subd. (a) [italics added].) This then requires, at a minimum, a comparison of prior versions of criminal statutes in the state of conviction with prior versions of those in California, to see whether their elements are the same. If they are not the same—which is likely to be the case in the majority of instances, given the number of iterations of different criminal statutes that exist outside of California10—a court must then review any facts admitted in a guilty plea or found true by the trier of fact, and determine whether those facts would have been punishable under a registrable statute in California at the time of the offense. This could involve procuring and reviewing thousands of pages of transcripts of witness testimony and other exhibits, to determine what facts the trier of fact necessarily found in order to convict the accused. Only then would a court and/or its juror services department be able to say a person convicted of an out-of-state offense was required to register under California‘s Sex Offender Registration Act.

Consequently, it was reasonable for the Legislature to choose clear boundaries and not require courts or jury commissioners to undertake such a labor to seat a jury panel for possible selection. The above-described inquiry would be onerous and time consuming. If the analysis was conducted by the jury commissioner under her authority to use juror questionnaires (see § 205), any resulting exclusion would be virtually immunized from review by any higher court, since it would be conducted ancillary to and outside of any particular litigation. If the analysis was conducted by the court during voir dire, such a proceeding could quickly become a “trial-within-a-trial” that might require the court to stop jury selection to review thousands of pages of documents to determine whether a prospective juror should be required to register under the Act and, thus, ineligible to serve as a juror. This would be impractical from a trial management perspective. Accordingly, we conclude it was reasonable for the Legislature to avoid this impracticality by making only those convicted of California crimes ineligible de jure, and leaving the parties to use one of their peremptory challenges to remove any further unfavored jurors. (See §§ 225, subd. (b)(2), 226, 231, subd. (c).)

In sum, the Legislature has recognized that California‘s sex offenses may differ from those of other jurisdictions and has addressed that possibility by adopting a registration statute requiring an involved analysis of a conviction in another jurisdiction to determine whether it constitutes a registrable offense. (See Pen. Code, § 290.005, subd. (a).) It was reasonable for the Legislature to impose this analysis for purposes of registration. Furthermore, based on the way it dealt with the problem at the registration level, it was reasonable for the Legislature to exclude registrable out-of-state convictions from the juror ineligibility provision in section 203, subdivision (a)(11) because of the practical difficulties in performing the analysis used for registration during the jury selection process.

Chevron argued at oral argument that resolves this question, because the Supreme Court therein treated a person required to register under Penal Code section 290.005 as falling within somewhat similar statutory language only facially referencing Penal Code section 290. However, E.J. does nothing to resolve the present issue and says nothing about whether, as a matter of statutory interpretation, Penal Code section 290.005 falls within the ineligibility specified by section 203. That case concerned a housing restriction on registered sex offenders, which stated, “it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.” (Pen. Code, § 3003.5, subd. (b).) The Supreme Court in E.J. addressed ex post facto arguments about this recently enacted law, but declined to address additional constitutional challenges related to overbreadth, vagueness, and violations of privacy rights, property rights, travel rights, and due process due to the need for further factfinding. (.) While it is true one of the four petitioners in E.J. was apparently required to register under Penal Code section 290.005, the opinion contained no discussion as to whether the statutory language of section 3003.5 also applied to such registrants, as the issue was not raised by any party. It is axiomatic prior opinions only have precedential value for issues actually considered and resolved. (; .) Thus, E.J. is not relevant authority for how to interpret section 203.11

In sum, we conclude section 203 means what it says. Those currently required to register under Penal Code section 290 based on a felony conviction are ineligible to serve as jurors. Those required to register as sex offenders under any other statutory provision are not made ineligible by section 203. We adopt section 203‘s plain meaning because Chevron has not demonstrated it produces absurd consequences or would frustrate the manifest purposes of the juror eligibility statute. Therefore, Juror No. 10 was not ineligible to serve as a juror even when we assume he was required to register under Penal Code section 290.005. The trial court‘s ineligibility determination was wrong as a matter of law.

D. The Concealment of Information Constituted Juror Misconduct

Our conclusion that Juror No. 10 was eligible to serve as a juror does not end the inquiry into juror misconduct. The trial court also found Juror No. 10 intentionally concealed information in responding to the juror questionnaire. Specifically, the court found Juror No. 10 failed to truthfully respond to the inquiry, “If you have ever been to court for any reason (excluding divorce), please explain,” stating only “Traffic Court Found Not Guilty.” This answer did not disclose his prior Washington crime or his being a party to a personal injury suit.

TRC does not argue the trial court erred in finding misconduct based on these two omissions. Unlike the question of Juror No. 10‘s statutory eligibility, whether the specific answers given by Juror No. 10 in this case were untruthful is primarily a factual question subject to review under the substantial evidence standard. The record contains sufficient evidence of Juror No. 10‘s involvement in other court cases to uphold the finding that information was omitted.

Further, the trial court‘s disbelief of the assertion in Juror No. 10‘s posttrial declaration that the omissions were inadvertent also withstands scrutiny on appeal. When a trial court finds all or part of a person‘s testimony is not credible, appellate courts apply the following rule: “A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so.” (.) The trial court clearly identified a rational ground for disbelieving Juror No. 10‘s declaration—he wished to avoid embarrassment. (See Evid. Code, § 780, subd. (f) [trier of fact, in determining truthfulness of a witness, may consider his or her “interest, or other motive“].) Accordingly, the finding that Juror No. 10 intended to withhold known information has adequate evidentiary support.

Consequently, the trial court‘s determination that Juror No. 10 engaged in juror misconduct withstands scrutiny on appeal because it is supported by substantial evidence and it is consistent with the law defining juror misconduct. (See [juror who conceals relevant facts during voir dire undermines the jury selection process and commits misconduct].)

E. De Novo Review of Prejudice Is Required

Having decided the trial court correctly determined Juror No. 10‘s failure to disclose information constituted misconduct, we address whether this misconduct was prejudicial. We note the trial court stated: “The court cannot divorce the court‘s conclusion that the juror was ineligible from its evaluation [of prejudice]. If the court is incorrect in its conclusion, the court understands that a reviewing court will consider the other issues de novo.” Also, the court‘s order on reconsideration noted that “if this court is wrong that the revealed facts render the juror legally ineligible, then the motion for new trial should be denied.” These statements establish that the trial court‘s prejudice determination was explicitly predicated on its incorrect ruling that Juror No. 10 was ineligible.

This legal error in the trial court‘s evaluation of prejudice raises the question whether the issue should be remanded to the trial court for redetermination based on a correct understanding of the law. This is normally the preferred course, because the question remaining here is whether the juror‘s misconduct in being untruthful on the questionnaire was prejudicial to Chevron, and this is a question the trial court is generally best situated to answer, having observed the entire case and not acting solely from a cold record. ( [“[T]he atmosphere of the court room during the trial ... is something that cannot be adequately reflected in a printed record.“].) Indeed, some courts have concluded this is the appropriate course of action. (See .) However, we interpret existing case law as foreclosing this option under the circumstances before us.

Section 660 states: “Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial.” (§ 660, subd. (c).) A number of courts have held this time limit is mandatory and jurisdictional, and prevents motions for a new trial from being remanded to the trial court for reconsideration. ( [cannot remand for reconsideration]; [concluding a motion for a new trial cannot be remanded to trial court because section 660 is jurisdictional, unless a judicially-created exception applies]; (Clemens II) [Court of Appeal should review issue de novo, rather than remand on issue of prejudice]; [cannot revive jurisdiction through a remand for reconsideration].)

Based on our review of the case law, we find (Mercer) controls. In Mercer, the Supreme Court considered a related statute—section 657—which had, at the time, been recently revised to require the trial court to specify the grounds for a new trial and, if the basis was insufficiency of the evidence, to explain its reasons for concluding the evidence was insufficient. (.) In Mercer, the trial court identified the grounds for a new trial as insufficiency of the evidence, but failed to specify the reasons the evidence was insufficient. (.) Noting failure to so specify was error as a matter of law, the Supreme Court was faced with the question of whether it could send the matter back to the trial court to simply specify the reasons it had omitted. (.)

In reaching this conclusion, the Supreme Court found a “persuasive analogy” between the statute in question in Mercer—section 657—and section 660. (.) It cited with approval a case concluding “[t]he time limits of section 660 are mandatory and jurisdictional, and an order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court‘s jurisdiction and void.” (, quoting (Siegal).) The Supreme Court further cited approvingly a decision where a trial court had not acted within the 60-day period and the Court of Appeal concluded the trial court lost jurisdiction once that period expired. (, citing .) As a result, the Court of Appeal refused a remand to the trial court. We thus take from Mercer that section 660 is indeed meant to be jurisdictional, and once the time limit set forth there has expired, the matter may not be revisited by the trial court. The Supreme Court has continued to uphold this view and reinforced its holding that section 657 (and by analogy, section 660) was jurisdictional as recently as 2007. (See .)

Siegal, cited by Mercer, concerned a writ taken after a trial court granted a motion for new trial, but failed to enter the minute order doing so within the statutory time period. (.) The trial court entered a minute order after the statutory period, and did so nunc pro tunc, with a directive that the order be deemed to have been issued on the date it should have been issued. (.) The Supreme Court concluded section 660 was “mandatory and jurisdictional,” and therefore the nunc pro tunc order was issued without jurisdiction, because “[i]t is not the function of a nunc pro tunc order ‘to make an order now for then, but to enter now for then an order previously made.’ ” (.) While Siegal standing alone would, perhaps, be distinguishable from a case on regular appeal, Mercer decides that issue. The Court in Mercer considered whether, in light of error, a new trial motion could be remanded for further findings after appeal and determined it could not.

There appears to be a split on this issue in published cases. The contrary view is set forth most expressly in , in which the Second District of the Court of Appeal found the statute was not intended to be jurisdictional and did not contemplate situations where the matter was taken on appeal and reviewed, concluding it only mandated a time limit within which the trial court must rule in the first instance. (.) The court stated, ”section 660 was not intended to operate, or apply, in settings where, following an appeal from the judgment, the appellate court remands the case with directions to the trial court to conduct further proceedings on a motion for new trial.” (.) The court based this inference about legislative intent in part on its belief that a remand following appeal was a different context than the one it believed was envisioned by the Legislature in enacting section 660. (.) It also pointed to three Supreme Court cases in which the Court set aside new trial motions and remanded with directions to the trial court to rehear the motions: ; ; and . (.) However, none of these cases cite Mercer or Siegal, much less overrule them. We do not believe the Supreme Court intended to overrule express holdings of Mercer and Siegal sub silentio, particularly since the belief in the Court of Appeal‘s inability to remand in this situation was again reiterated in .

The Courts of Appeal have been inconsistent on this issue. Even cases that heavily rely on Barrese have generally decided on their own how the motion for new trial should have been resolved after finding the trial court erred. (See [concluding the trial court erred by failing to understand its duty to provide substantive review of the sufficiency of the evidence to uphold the jury‘s verdict]; [concluding independently, without remand to the trial court, that the motion for new trial should have been granted].) And there are instances in which the Court of Appeal has approached this same question in two different ways. In (Clemens I), the appellate court remanded to the trial court to reconsider the motion for new trial pursuant to the then-recent opinion in . (.) In doing so, the court noted “the facts are by no means conclusive that a new trial should be granted,” but found “the trial court might have reached a different result if Hutchinson had been decided prior to the critical hearing.” () Following remand, the trial court denied the motion for new trial, which was then appealed in . In Clemens II, the Court of Appeal found the trial court erred in its determination of the applicable standard. (.) However, it then concluded that, jurisdictionally, section 660 prevented remand to the trial court. (.) The appellate court accordingly reviewed the evidence de novo in determining a new trial should have been granted. (.)

We conclude the weight of authority discussed above establishes that remand is not an available option. We therefore decline to follow Barrese. Because we cannot remand this case to the trial court to consider whether Juror No. 10‘s misconduct was sufficient to grant a new trial—understanding he was not statutorily ineligible to serve—we proceed to make the prejudice determination ourselves.12

F. Juror No. 10‘s Misconduct Was Not Prejudicial

We begin our de novo review of the prejudice question by acknowledging the principle that a finding of misconduct creates a presumption of prejudice. (; ; ; .) This presumption applies equally to civil and criminal cases. ( [“[R]egardless of the rule‘s origin, civil litigants, like criminal defendants, have a constitutionally protected right to the complete consideration of their case by an impartial panel of jurors. ... No principled distinction can be drawn between civil and criminal cases for purposes of the presumption of prejudice arising from juror misconduct.“].)

The Supreme Court has explained, “[t]he presumption of prejudice is an evidentiary aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Code section 1150 [which bars evidence showing what effects misconduct had on a juror‘s decision to vote] erects, and it seeks to lower that barrier somewhat.” (, italics added.)

The presumption that juror misconduct is prejudicial is not conclusive. (See Evid. Code, § 601 [presumptions are “either conclusive or rebuttable“].) It can be rebutted by two routes, by either “an affirmative evidentiary showing that prejudice does not exist or by a reviewing court‘s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.” (, italics added.) Here, we are required to re-examine the entire record de novo regardless because the trial court tied its determination of prejudice specifically and inextricably to an aspect of the juror‘s misconduct about which it was legally mistaken. Thus, we look to whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.

The verdict will not be disturbed “if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (.) The test is whether the juror‘s conduct or failure to disclose evidences or shows bias. (Ibid.) “The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life.’ ” (.) Because the jury is a “fundamentally human” institution, it cannot be divorced from the fact that jurors will have different experiences, opinions, and personalities, which is both a strength and a weakness of having civilian juries. (.)

As several appellate court opinions have commented recently, “[t]he law concerning prejudice lacks clarity.” (

“Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (

Notes

1
DOGGR is now known as the California Geologic Energy Management Division, colloquially called “CalGEM.” Since the parties and witnesses largely refer to this regulatory agency using its prior acronym, DOGGR, we will do so as well.
2
“Abandoning” a well refers to the process of sealing off a well that was previously drilled, so that it does not become an unintended ventilation hole for steam that is injected in other, nearby wells. Sometimes that process is unsuccessful for various reasons, leading to what the parties referred to as “reabandonment” of the well, which involves additional attempts to seal off the previously drilled well.
3
The French drain was ultimately removed on or about June 14, 2012.
4
The death of the Chevron employee was subject to a motion in limine filed by Chevron, and the jury was not told of his death, which was instead simply referred to as an “industrial incident.”
5
These orders, which ultimately banned steaming anywhere within 800 feet of the Well 20 surface expression for a period of approximately four years, are generally referred to throughout as the “DOGGR orders.”
6
Subsequent undesignated statutory references are to the Code of Civil Procedure.
7
The clarification provided in Haraguchi addressed without referencing Justice Wiener‘s criticism of the abuse of discretion standard as “so amorphous as to mean everything and nothing at the same time and [as] virtually useless as an analytic tool.” (, disapproved on another ground in .)
8
The parties do not dispute this determination. Rather than deciding the question, we assume for purposes of this appeal that registration was required, but note the trial court‘s determination is not indisputable. Juror No. 10 received a deferred sentence and, after completion of a term of probation, was allowed to change his plea to “not guilty,” after which the case was dismissed. It could be argued this is not equivalent to Juror No. 10 being “convicted” within the meaning of Penal Code section 290.005. Because the collateral consequences of being required to register as a sex offender are significant, and Juror No. 10 is not a party to this proceeding, we express no opinion as to whether Juror No. 10 is required to register under Penal Code section 290.005. Any purported decision on that point would not be binding on Juror No. 10 in a subsequent proceeding, given the due process concerns implicated by his absence here.
9
To the extent Chevron relies on the language of subdivision (d) of Penal Code section 290, which states a person “shall register for 10 years, 20 years, or life,” depending on certain circumstances, this is not itself a registration requirement, but rather merely a timing provision, as discussed above. The registration requirements are set by subdivision (b), and by additional code sections found at Penal Code section 290.001 et seq.
10
It bears noting this does not apply solely to convictions from American courts, but also presumably includes convictions in the courts of other countries. (See Pen. Code, § 290.005, subd. (a) [noting the section applies to “any person who, since July 1, 1944, has been, or is hereafter convicted in any other court” (italics added)].)
11
Further, even if we did believe the Supreme Court intended to interpret Penal Code section 3003.5, subdivision (b) to include reference to both Penal Code sections 290 and 290.005, even though only Penal Code section 290 is referenced in the text, it still would not control the outcome to this case. The two statutes—Code of Civil Procedure section 203 and Penal Code section 3003.5—use different language. Section 3003.5 refers to “any person for whom registration is required pursuant to Section 290.” Code of Civil Procedure section 203, subdivision (a)(11), meanwhile, refers to “[p]ersons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction.” (Code Civ. Proc., § 203, subd. (a)(11).) The language of Section 203 is considerably more qualified, excluding those no longer subject to registration and those required to register for a misdemeanor. We cannot assume the Supreme Court‘s analysis of these two statutes would be analogous. Nor are other policy concerns as readily applicable. The need for practical bright lines is obvious when it comes to determining potentially qualified jurors, and our justice system retains mechanisms to exclude undesired jurors through the use of peremptory strikes and for-cause challenges. It is less obvious the same need for a bright line is present in section 3003.5, nor is there another readily apparent legal backstop analogous to peremptory strikes and for-cause challenges.
12
Our de novo evaluation of prejudice affords no deference to the trial court‘s commentary that “if this court is wrong that the revealed facts render the juror legally ineligible, then the motion for new trial should be denied.”
13
We do not necessarily agree with this analysis, as will become apparent later, but recount it here for background.
14
Our use of the phrase “items of harm” is derived from the instruction to the jury that the amount of damages “must include an award for each item of harm that was caused by Chevron’s wrongful conduct, even if the particular harm could not have been anticipated.”
15
This instruction could be described as a further explanation of the substantial factor test for causation. In other words, the wrongdoing of either TRC or Chevron could not be a substantial factor in causing harm that was caused solely by the DOGGR orders.
16
CACI No. 432 is titled “Affirmative Defense – Causation: Third-Party Conduct as Superseding Cause” and provides: [¶] “[Name of defendant] claims that [... it] is not responsible for [name of plaintiff]’s harm because of the later misconduct of [insert name of third party]. To avoid legal responsibility for the harm, [name of defendant] must prove all of the following: [¶] 1. That [name of third party]’s conduct occurred after the conduct of [name of defendant]; [¶] 2. That a reasonable person would consider [name of third party]’s conduct as a highly unusual or an extraordinary response to the situation; [¶] 3. That [name of defendant] did not know and had no reason to expect that [name of third party] would act in a [negligent/wrongful] manner; and [¶] 4. That the kind of harm resulting from [name of third party]’s conduct was different from the kind of harm that could have been reasonably expected from [name of defendant]’s conduct.”
17
The trial court recognized this, and in fact overruled an objection from Chevron‘s counsel that Tracy Rogers’ testimony about this reasoning was improper, noting, “I don‘t think it‘s improper lay opinion. He‘s president of the company. He‘s saying why they shut their operations down. He can be impeached and other evidence may impeach that testimony.” This evidentiary ruling was not appealed by Chevron.
18
Both Manta itself and most of the cases it relied on involved situations in which the prosecutor or government agency successfully applied to a court, either for an injunction or to hold a defendant to answer for a criminal charge, and the alleged damages arose after the court had granted the injunction or held the defendant to answer. It is not obvious the same assumption of independence applies where the decisionmaker is not a third-party neutral adjudicator of disputes, but rather an administrative agency such as DOGGR, which is charged with enforcement of certain statutes and regulations.
19
“Waiver” and “forfeiture” sometimes are used interchangeably. (.) They are different because (1) waiver refers to the intentional relinquishment or abandonment of a known right and (2) a forfeiture results from the failure to make a timely assertion of a right or objection. (Ibid.)
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