Opinion
C080974
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY L. BAILEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03674)
Stephen Vann, defendant Jeffrey L. Bailey's cousin by marriage, owed defendant $500 for marijuana. Following a series of acrimonious text messages and various efforts by Vann to repay the loan, defendant stabbed Vann. A complaint deemed an information charged defendant with assault with a deadly weapon and alleged great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) A jury found defendant guilty and the trial court granted defendant five years' probation, including 120 days in jail on the assault conviction and stayed the punishment on the great bodily injury enhancement. Defendant appeals, arguing instructional error, prosecutorial misconduct, jury misconduct and cumulative error. We shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise designated.
FACTUAL AND PROCEDURAL BACKGROUND
The following evidence was introduced at trial.
Events Leading up to the Stabbing
Vann and defendant are cousins through marriage. Vann, three years older than defendant, had known defendant since Vann was nine.
In May 2015 defendant broke up with his girlfriend. Subsequently, Vann had sex with her, angering defendant. In addition, Vann owed defendant $500 for marijuana. It took Vann some time to repay defendant because Vann had expenses stemming from a car accident. Vann was not worried or in fear about the money he owed defendant.
On June 15, 2015, defendant challenged Vann to a fight. Vann texted defendant he was waiting for defendant. The following afternoon, defendant and Vann exchanged text messages for Vann to repay $100 of the $500 he owed defendant. Defendant told Vann to leave the money with their uncle or with defendant's mother. Vann offered to repay defendant at a friend's house.
Defendant suggested they meet at his ex-girlfriend's house, sparking a testy text message exchange. Vann said he would leave the money with their uncle and defendant should arrange to pick it up. Vann left the money with his uncle's wife and told defendant to get it from her. However, defendant failed to pick up the $100 and Vann retrieved it.
Defendant and Vann continued to exchange angry texts that evening. Vann finally texted defendant, "I'm done texting if you don't pick up when I call you tomorrow then it's bad for you." According to Vann, this was not a threat, he only wanted defendant to know if he didn't respond he would not get his money back.
Early on the morning of June 17, 2015, Vann tried unsuccessfully to call defendant. He sent defendant a text message asking if he should drop off some of the money. Defendant texted, "Drop it off at my moms house period I'm in Oakland if you coming to the town be my guest."
Vann drove to defendant's mother's apartment and texted defendant that he would leave $100 under the doormat. He left the money under the doormat and texted defendant that he should tell his mother to retrieve it. As Vann drove away, defendant texted, "You a lying ass nigga blood you've been lying all day so when you tell some truth maybe I will believe."
In response, Vann decided to retrieve the money. He texted defendant: "bruh ima pick my money back again cuz you talkin crazy come get from me after work then."
The Stabbing
Vann returned to defendant's mother's apartment and took the money from under the doormat. The door opened and Vann saw defendant in the doorway. Defendant retreated back into the apartment and Vann extended his arm to keep the door open.
Defendant reached toward Vann and struck him in the abdomen. Vann fell into the apartment and grabbed defendant to steady himself. He saw a knife in defendant's hand. Realizing he had been stabbed, Vann hugged defendant to avoid being stabbed again.
Defendant's mother came into the room and told Vann to leave. Vann said he would leave and defendant's mother left the apartment. Vann pushed defendant away and left the apartment. He lifted up his shirt and saw "meat" hanging from his abdomen. He drove himself to the hospital.
The Aftermath
At the hospital, Vann underwent two surgeries to repair lacerations to his abdominal wall, his pancreas, and his inferior vena cava, the vein that carries blood to the heart. He required a major transfusion, spent two weeks in the hospital, and missed two months of work.
During cross-examination, Vann stated his arm crossed the threshold to prevent the door from closing. Vann wanted to talk to defendant to "figure out what's going on." He had not stepped into the apartment prior to the stabbing: "I didn't go in. I just had my hand up to keep the door open." Defendant was not pushing against the door or trying to slam it. Inside the apartment, Vann tried to hold onto defendant and the knife to prevent another stabbing. Vann did not hit defendant.
Officers who took defendant into custody observed no injuries to his face, no bruising or scratches.
Defense Case
Defendant did not testify. Defendant presented testimony by a nurse at the hospital which treated Vann. The nurse's notes showed Vann had two bags of belongings and a $20 bill. She did not go through the property; Vann handed her the money. She did not recall if Vann had a wallet or whether she went through it. Information, Verdict, and Sentencing
A complaint deemed an information charged defendant with assault with a deadly weapon, a knife, and alleged defendant inflicted great bodily injury on the victim. The jury found defendant guilty and found the allegation true. The court granted defendant five years' probation, including 120 days in custody on the assault conviction, and stayed punishment on the great bodily injury enhancement. Defendant filed a timely notice of appeal.
DISCUSSION
I
Instruction on Mutual Combat
Defendant begins by arguing the court gave confusing and misleading instructions on self-defense, depriving him of his rights to a fair trial and due process. Specifically, defendant contends the court should not have instructed on mutual combat and it diluted the instruction on the right to defend oneself in one's home. The People acknowledge the mutual combat instruction should not have been given, but argue it was harmless.
Background
The trial court provided five instructions on self-defense: the right to self-defense (CALCRIM No. 3470); the significance of insulting words (CALCRIM No. 917); that a person defending himself from a home intruder is presumed to be reasonably afraid of death or great bodily injury (CALCRIM No. 3477); the limits on self-defense when the defendant has engaged in mutual combat or started the fight (CALCRIM No. 3471); and the unavailability of this defense when contrived (CALCRIM No. 3472). Neither party objected.
On mutual combat, the court instructed:
"A person who engages in mutual combat or who starts a fight has a right to self-defense only if, one, he actually and in good faith tried to stop fighting; two, he indicated by word or by conduct to his opponent, in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop fighting. If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. However, if the defendant used only nondeadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting or communicate the desire to stop the opponent or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. The agreement may be expressly stated or implied unless occurring before the claim of self-defense arose." (CALCRIM No. 3471, as given.)
On the defense of one's home, the court instructed:
"The law presumes that the defendant reasonably feared imminent death or great bodily injury to himself or to a member of his family or household, if, one, the intruder unlawfully and forcibly entered or was entering the defendant's home; two, the defendant knew or reasonably believed that an intruder unlawfully and forcibly entered or was entering the defendant's home; three, the intruder was not a member of the defendant's household or family; and four, the defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.
"Great bodily injury has been defined in another instruction. The People have the burden of overcoming this presumption. This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to himself or to a member of his family or household when he used force against the intruder.
"If the People have not met this burden, you must find the defendant reasonably feared death or injury to himself, or to a member of his family or household when he used force against the intruder." (CALCRIM No. 3477, as given.)
Discussion
Both parties agree the court erred in giving CALCRIM No. 3471. The question then becomes, was the instruction prejudicial?
The court errs in giving an instruction which correctly states the law but has no application to the facts of the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Such an error requires reversal if it is reasonably probable the result would have been more favorable to the defendant in the absence of the error. (Id. at p. 1130.) We review the record in its entirety and reverse only if the incorrect instruction creates a substantial risk of misleading the jury to the defendant's prejudice. (Ibid.; People v. Rollo (1977) 20 Cal.3d 109, 123.)
Defendant argues CALCRIM No. 3471 undermined his reliance on CALCRIM No. 3477 and confused the jury about whether he acted in self-defense. According to defendant, he acted in self-defense under section 198.5 when Vann unlawfully and forcibly entered the apartment when his arm crossed the threshold of the doorway. Although CALCRIM No. 3477 presumes the person whose home is invaded has a reasonable fear of great bodily injury, the incorrectly given mutual combat instruction allows a defendant to claim self-defense only if certain conditions apply. Under defendant's reasoning, "These conditions conflict with the presumption in section 198.5, which provides that a defendant is 'presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household' when that defendant uses deadly force against an intruder."
We are not convinced the incorrect instruction fomented such confusion in the jury. As defendant notes, CALCRIM No. 3471 should not have been given because the jury had no evidence before it that defendant engaged in mutual combat or started a fight with Vann. The instruction begins: "A person who engages in mutual combat or starts a fight has a right to self-defense . . . ." The only testimony as to the facts surrounding the stabbing was Vann's testimony that defendant stabbed him when Vann put his hand on the door. "Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67.)
The court instructed the jury: "Some of these instructions may not apply depending on your findings of the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200, as given.)
Defendant contends the prosecutor compounded the instructional error by mentioning mutual combat during closing argument. While the prosecutor made passing reference to mutual combat, both parties focused on the merits of defendant's reliance on CALCRIM No. 3477, the defense of one's home. The prosecution argued defendant had not established the defense; the defense countered that, under the facts of the case, the defense applied.
The prosecutor argued: "Now, there's even more limited rules in self-defense in this situation because we know the first move was made by the defendant. So it's even more limited when you are entitled to self-defense in a case like this, and that's when the defendant is the initial aggressor for mutual combat. I submit to you he's the initial aggressor, but if you want to give him mutual combat, fine. The same rules apply, and it's even more limited. [¶] You heard the Judge. He actually, in good faith, has to stop fighting; indicate by his words or conduct so his opponent knows. And he gave his opponent a chance to stop fighting. We didn't have that here. The only one who kept cool and calm in that was the guy who had his pancreas stabbed."
The prosecutor stated, regarding CALCRIM No. 3477: "You read the presumption . . . [a]nd I'm here to tell you it doesn't apply here. Read the elements of it. It doesn't apply here. It wasn't written for a situation like this with cousins fighting. And it even says that. It says here in the elements the defendant knew an intruder unlawfully entered or was entering. We don't have that. More importantly, the intruder was not [sic] a member of the defendant's family. They are cousins. They know each other.
"Didn't -- you hear something creaking at your front door in the middle of the night? You go there and have no idea who it is. He knew who it was. Remember, [defendant] knew the victim was coming to get his money back. They had known each other since the defendant was six. They know each other's moms. You saw that in the text messages . . . .
"This presumption is not applicable here. But even if you think it is, it's not because he never entered the home. That's the language. The testimony from Mr. Vann is he never entered the home before he was stabbed. That didn't happen. [¶] . . . [¶]
"The presumption doesn't apply in this case. He wasn't in the house. These are cousins who know each other."
Defense counsel also addressed the presumption under CALCRIM No. 3477: "As far as the presumption goes, in addition to the presumption of innocence, [defendant] is entitled to the presumption the he was in fear of death or great bodily injury when Stephen Vann tried to enter and did enter his home. [The prosecutor] says, no, no it says not family. It does say that. We never got any meaningful explanation of what they were beyond cousins by marriage. And I submit to you the law that this instruction is based on, and this instruction as a statement of the law is not meant to protect anyone and everyone who may be related to you however tangentially. That is not what this is about . . . .
"This instruction says exactly what I told you at the beginning. You don't have to wait to protect yourself when someone forces their way into your home. You don't have to wait. [Defendant] didn't have to wait.
"[Defendant] acted in self-defense. [Vann] entered his house uninvited."
Defendant offers no theory under which the jury might have attempted to apply CALCRIM No. 3471 in its deliberations. Given the lack of factual support for the mutual combat instruction, and despite the prosecution's brief mention during closing argument, we cannot find defendant would have obtained a more favorable verdict had the court not given CALCRIM No. 3471. Both the prosecution and the defense argued and articulated the presumption under CALCRIM No. 3477 and the jury had before it the option of rejecting CALCRIM No. 3471 if the facts did not support it.
II
Declining to Instruct on the Definition of Entry
Defendant contends the trial court violated its instructional duty under section 1138 in failing to define what constitutes entry for purposes of section 198.5 following a jury inquiry. Under section 1138, the court's primary duty is to help the jury understand the legal principles it has been asked to apply. Although the court is not required to elaborate on standard instructions, a definition of a commonly used term may be required if the jury exhibits confusion over the term's meaning. (People v. Montero (2007) 155 Cal.App.4th 1170, 1179.)
Background
During deliberations, the jury asked: "Does the hand on the door considered [sic] crossing the threshold? [¶] Is the hand on the door 'entering' the apartment?" Out of the jury's presence, the trial court proposed to respond. "Whether or not the apartment was entered is a factual consideration solely within the purview of the jury." Defense counsel objected and requested that the court instruct "regarding the meaning of the term 'entry.' " The court rejected the request and instructed the jury as proposed.
Following the verdict, defendant moved for a new trial based, in part, on the court's failure to define "entry" under the "reasonable expectation test" set forth in People v. Brown (1992) 6 Cal.App.4th 1489, 1495 (Brown).
The court denied the motion, explaining:
"The Court was and is of the opinion that that was a question of fact for the jury to decide. To do anything else would be to tell the Court [sic] that Mr. Vann's testimony was the only credible testimony.
"Do they believe that he stuck his hand in the door and crossed the threshold or put his hand on the door and did not cross the threshold? This is clearly within the purview of the jury. This issue was also solidly within the purview of argument by counsel as to whether Mr. Vann entered the apartment, which arguably caused [defendant] to defend himself.
"This Court believes that the jury was not misdirected by any statement of the law. There was no confusion with jury instructions. Jury instructions as to the proper law to be applied was settled and agreed upon by counsel and put on the record. This included theories of jury instruction on self-defense, those being CALCRIM 3470, 3477, 3471, 3472. . . . [¶] . . . [¶]
"The defense has referred to the case of People v. Brown 6 Cal.App.4th 1489 at 1495, for discussion of what constitutes an entry. This discussion was based on the fact that the Court refused to give an instruction defining entry or entrance into a residence because the Court did not believe there was an entry into a residence, as the altercation took place on the porch.
"The issue of entry was, again, a factual issue that was clearly encompassed with improper [sic] argument of counsel which the Court would not have impeded.
"Based on this, the Court does not believe the jury was misdirected by the Court on any question of the law. They did use evidence that was presented to them to come to their verdict. They made a factual finding about the evidence and apparently did not find a credible defense of self-defense.
"The Court will not grant a new trial based on this premise."
Discussion
Defendant describes the jury as "plainly confused about whether Vann had legally entered the apartment at the time of the stabbing incident." Therefore, the court shirked its mandatory duty to clear up their confusion over the jury instructions in failing to clarify what constitutes an "entry" and should have granted the motion for a new trial.
The court must attempt to clear up any confusion over the instructions brought to its attention by the jury. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 316.) However, "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A word or phrase has a technical or legal meaning requiring clarification if its statutory definition differs from the commonly understood meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574-575.) We review a claim of error under section 1138 for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
The court believed providing a definition for entry would usurp the jury's responsibility for considering the evidence and applying it to the instructions given. We agree. The parties' arguments centered on whether or not Vann was in the apartment when he was stabbed. Defense counsel argued defendant stabbed Vann after he was fully inside the apartment; the prosecutor contended Vann was stabbed while he placed his hand on the door. The court declined to provide a definition which would favor either version of events.
Moreover, neither section 198.5 nor CALCRIM No. 3477 provides a special definition of entry or "forcibly enters" for the purpose of the homeowner's right to use force. Nothing in either the statute or the jury instruction suggests anything but the common meaning of entry, not a special legal meaning of the term. The court did not err in declining to provide a definition for entry.
The parties and the trial court refer to our opinion in Brown, supra, 6 Cal.App.4th 1489. In Brown, the defendant was convicted of assault with a deadly weapon. The evidence showed the victim, who had just been fired by the defendant, entered the defendant's front porch with a hammer and was shot by the defendant who was standing in the doorway. (Id. at pp. 1492-1494.) The narrow issue was whether entry onto an unenclosed front porch constituted an entry into the defendant's residence. (Id. at p. 1495.) The trial court refused the defendant's requested instruction based on section 198.5. We held that "a residential occupant does not have a reasonable expectation of protection from unauthorized intrusion into the kind of front porch involved in this case, and therefore entry onto such a porch does not constitute entry into a residence for section 198.5 purposes. The trial court correctly denied defendant's request for a jury instruction based on section 198.5, which would have given defendant a rebuttable presumption that he was in reasonable fear of imminent danger when he used deadly force against [the victim.]" (Id. at p. 1499.) Our decision in Brown focused on the nature of the structure, not the definition of entry. --------
III
Prosecutorial Misconduct
According to defendant, the prosecutor misstated the law during closing argument. He contends the prosecutor told the jury that the presumption in CALCRIM No. 3477 did not apply because defendant and Vann were cousins and Vann had not set foot in the residence before he was stabbed.
Background
During closing argument, the prosecutor stated:
"[Defendant] stabbed [Vann] without being touched. You read the presumption, and I suspect [defense counsel] is going to drape herself in an American flag and spend a lot of time talking about this. And I'm here to tell you it doesn't apply here. Read the elements of it. It doesn't apply here. It wasn't written for a situation like this with cousins fighting. And it even says that. It says here in the elements the defendant knew an intruder unlawfully entered or was entering. We don't have that. More importantly, the intruder was not [sic] a member of the defendant's family. They are cousins. They know each other.
"Didn't -- you hear something creaking at your front door in the middle of the night. You go there and have no idea who it is. He knew who it was. Remember, [defendant] knew the victim was coming to get his money back. They had known each other since the defendant was six. They know each other's moms. You saw that in the text messages, I'm going to get my mom involved. These are kids.
"This presumption is not applicable here. But even if you think it is, it's not because he never entered the home. That's the language. The testimony from Mr. Vann is he never entered the home before he was stabbed. That didn't happen.
"[Defense counsel's] questions aren't evidence, neither are mine. Mr. Vann told us unequivocally that he put his hand on the door. That's what he did. He didn't have time to react. Bam. He was stabbed in his stomach.
"[Defense counsel] asked him numerous times, 'Were you in the house?' 'No, I was standing at the doorway.' And if he was in the house, he wouldn't have to reach his arm up to shut the door -- I mean to prevent the door from hitting him.
"The presumption doesn't apply in this case. He wasn't in the house. These are cousins who know each other."
In closing argument, defense counsel argued the presumption did apply, arguing there was no meaningful explanation of defendant and Vann's relationship and the presumption was not meant to protect anyone "who may be related to you however tangentially." Defense counsel noted Vann entered the house after threatening texts and he was much larger than defendant. She also argued Vann's putting his hand on the doorway constituted an entry.
The prosecutor, in rebuttal, said the defense attorney "just admitted they are family members, marriages by cousins -- cousins by marriage rather. . . . He never made in the house. He got stabbed first. That's what the evidence shows. That's what we heard, and it's uncontroverted."
Discussion
Defendant bases his claim of prosecutorial misconduct on the prosecutor's overstatement of the elements required under section 198.5. Specifically, defendant argues he and Vann were not "family members" but "distant relatives," the prosecutor erroneously stated the presumption of CALCRIM No. 3477 did not apply because he and Vann knew one another, and the prosecutor erred in stating Vann did not enter the apartment.
A prosecutor's conduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. Prosecutorial conduct that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427 (Bryant); People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) It is misconduct for a prosecutor to misstate the law during argument, misstate or mischaracterize the evidence, or assert facts not in evidence. (People v. Whalen (2013) 56 Cal.4th 1, 77; People v. Davis (2005) 36 Cal.4th 510, 550; People v. Cunningham (2001) 25 Cal.4th 926, 1026.)
When prosecutorial misconduct is based on the prosecution's comments before the jury, we consider whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Bryant, supra, 60 Cal.4th at p. 427.) We review the challenged statements within the context of the record and argument as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.) In addition, we do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecution's statements. (People v. Shazier (2014) 60 Cal.4th 109, 144.)
As a general rule, a defendant must object to the prosecution's misconduct and request an admonition when the misconduct occurs. (Samayoa, supra, 15 Cal.4th at p. 841.) The defendant's failure to object or request an admonition is excused if it either would have been futile or would not have cured the harm caused by the misconduct. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)
The People argue that by failing to object defendant forfeited his claim of prosecutorial misconduct. In light of defendant's alternative claim of ineffective assistance we will address his misconduct claim on the merits.
Defendant objects to the prosecution's characterization of both he and Vann as "family members." Section 198.5 sets forth the reasonable presumption of fear when a resident uses force against another person "not a member of the family or household." However, the statute does not define member of the family. The related jury instruction, CALCRIM No. 3477, states the presumption of a resident's reasonable fear of great bodily injury applies if the "intruder was not a member of the defendant's household or family." The instruction also provides no definition of household or family.
Vann testified defendant is his "cousin through marriage" and referred to defendant's mother as his aunt. The testimony was not contradicted and given the unqualified reference to "family" in section 198.5, the prosecution could properly argue that family includes cousins through marriage. Conversely, defense counsel argued defendant's familial connection to Vann was too tenuous to preclude application of the presumption in CALCRIM No. 3477. We find no misconduct.
Defendant also takes issue with the prosecutor's comment that CALCRIM No. 3477's presumption did not apply because defendant and Vann knew one another. This misstates the argument. The prosecutor's comments underscored the family relationship between the two men, stating they had known one another since defendant was six. The prosecutor did not argue the presumption was inapplicable because they knew one another.
Finally, defendant cites the prosecution's argument that the presumption did not apply because Vann did not enter the residence prior to being stabbed as misconduct. We previously discussed the parties' disagreement of what constitutes an entrance. The prosecution and defense both presented their interpretations of "entered the apartment." Defense counsel argued Vann "entered the apartment" when his arm crossed the door's threshold to prevent it from closing. Given the significant leeway counsel enjoys when discussing both the factual and legal merits of the case during argument, we find no misconduct. (People v. Centeno (2014) 60 Cal.4th 659, 666.)
IV
Juror Misconduct
Defendant also moved for a new trial based on juror misconduct: one of the jurors stated that during deliberations some jurors discussed defendant's failure to testify. The trial court denied the motion finding that, although misconduct occurred, defendant was not prejudiced. Defendant disagrees, arguing his rights to a fair trial and due process were denied.
Background
The court instructed on a defendant's failure to testify: "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way." (CALCRIM No. 355, as given.)
Defendant moved for a new trial prior to sentencing based, in part, on juror misconduct. He cited one juror's declaration which stated: "During deliberations it was brought up that the defendant did not testify. [¶] . . . Some of the jurors discussed the fact that the victim gave his point of view on what happened but the defendant did not."
The prosecutor responded no misconduct occurred based on the "bare bones declaration." He argued the juror who provided the declaration might be biased because she knew defendant's mother. In addition, another juror refused to sign a similar declaration. The prosecutor described the jurors' discussion of defendant's failure to testify as "transitory" and unlikely to influence the verdict.
The trial court found misconduct occurred but it was not prejudicial. The court explained its reasoning:
"The Court must engage in a three-step process to determine prejudicial juror misconduct. Number one, are the affidavits admissible?
"It appears that the affidavit is an admissible declaration under oath made by a sitting juror who was able to describe what she personally observed. The Court will take the declaration into consideration.
"Number two, do the facts demonstrate or do they show misconduct, i.e., did it happen? The pertinent part of this declaration is, number two, during the deliberations it was brought up that the defendant did not testify; three, some of the jurors discussed the fact that the victim gave his point of view on what happened but the defendant did not.
"The fact that the defendant did not testify was discussed in the context that the only point of view they received was from the victim and not the defendant, and it was discussed among, according to the declaration, some of the jurors. This would indicate in some form or fashion that the -- the fact that the defendant did not testify was mentioned. Therefore, the Court would find that juror misconduct did occur.
"Was the conduct prejudicial? There is a presumption of prejudice when juror misconduct is found. That presumption can be rebutted with proof that no prejudice to the defendant actually resulted. The burden of proof is that the verdict must be set aside if there is a substantial likelihood of prejudice, the likelihood established when the material itself is inherently and substantially likely to have influenced jurors who were aware of the information, or when the nature of the misconduct and surrounding circumstances demonstrate a substantial likelihood that at least one juror was actually biased against defendant.
"What do we have in our case? We have a juror declaration from Juror Number 12 that states some of the jurors discussed the fact that the victim gave his point of view on what happened but the defendant did not. Based on that declaration, is there a substantial likelihood of prejudice, i.e., was the material itself inherently and substantially likely to influence jurors, at least one juror was actually biased against the defendant.
"It appears from the declaration -- and it's hard to read behind the declaration, and the Court is not going to try. But just looking at the declaration itself, it appears that the discussion was brief and it was made in relation to the evidence that the jurors heard and the only evidence they could base their verdict on.
"The declaration of the juror does not state that the conversations were lengthy, just what evidence they had in front of them to consider.
"Based on this proffered evidence by the defendant, it does not appear that the discussion was of any length or significance. The Supreme Court in the case of People v. Avila, 46 Cal.4th 680 stated . . . 'Transitory comments of wonderment and curiosity about a defendant's failure to testify, although technically misconduct, are normally innocuous particularly when a comment stands alone without further discussion.'
"This Court finds the circumstances based upon the proffered declaration to be substantially similar, and there was no prejudice because the discussions appeared to be brief and directed as to the evidence that the jury can only consider.
"Additionally, after review of the entire record and my previous comments about the evidence in this trial, I do not find any evidence that the jurors based their decision on the defendant's decision not to testify, but that the evidence presented at trial, standing alone, was more than sufficient for the jury to reach the verdict they did. Therefore, the motion to dismiss based on juror misconduct is denied."
Discussion
Courts have noted that the jury's curiosity about defendant's absence from the witness stand is natural and may cause them to wonder why a presumably innocent defendant does not testify. (People v. Manibusan (2013) 58 Cal.4th 40, 59; People v. Loker (2008) 44 Cal.4th 691, 749.) Transitory comments and curiosity about a defendant's failure to testify, although they technically constitute misconduct, are generally innocuous, particularly when such comments are not accompanied by any other juror discussion. However, if a juror expresses a belief in a defendant's guilt based on the failure to testify, such a comment would be more likely to influence jurors and be deemed misconduct. (People v. Avila, supra, 46 Cal.4th at p. 727; People v. Hord (1993) 15 Cal.App.4th 711, 727-728.)
Here, the court found the juror's declaration supported a finding of juror misconduct. Defendant disagrees with the court's conclusion that the misconduct was not prejudicial.
The court reviewed the juror's declaration and determined the discussion about defendant's failure to testify was brief and made as an observation about the evidence before the jury. The declaration did not state the jurors commented upon the defendant's failure to testify as indicative of guilt or innocence. Instead, the jurors noted that, while they heard Vann's version of events, they did not hear defendant's version.
In People v. Leonard (2007) 40 Cal.4th 1370, the court found no prejudice to the defendant when jurors' comments on defendant's failure to testify "merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better." (Id. at p. 1425.) According to the trial court, wishing defendant had testified " 'is not the same as drawing negative inferences from the absence of testimony.' " (Ibid.) Here, the trial court did not err in finding that, although juror misconduct took place, there was not a substantial likelihood of prejudice. (Ibid.)
V
Cumulative Error
Finally, defendant argues the cumulative effect of the trial court's errors requires reversal. However, we found but a single error, the court's instruction on mutual combat, and it was not prejudicial. Accordingly, there is no cumulative error.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MURRAY, J.