Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD220991, Desiree Bruce-Lyle, Judge.
BENKE, Acting P. J.
BACKGROUND
In 2002 Brian Keith Bell began sexually molesting Eddie E., his seven-year-old cousin. Bell was five years older than Eddie. The molestation continued until February 2009, when Eddie told his mother about Bell's conduct.
On January 15, 2010, Bell was convicted of three counts of committing lewd acts on a child under the age of 14 (counts 1-3; Pen. Code, § 288, subd. (a)). The jury found true an allegation that Bell had substantial sexual conduct with the victim in violation of section 1203.066, subdivision (a)(8). On March 5, 2010, he was sentenced to prison for six years.
All further statutory references are to the Penal Code unless otherwise specified.
Bell filed a timely notice of appeal.
DISCUSSION
Bell's sole contention on appeal is that the jury deliberations unfairly prejudiced him when a document prepared by the prosecution inadvertently found its way into the jury room. We disagree.
The Discovery of the Document and Inquiry by the Court
During pretrial hearings, the court ruled certain evidence inadmissible and the prosecutor was charged with assuring its witnesses did not disclose or discuss that evidence. The evidence ruled inadmissible included such matters as (1) cousins who did not come forward to testify, (2) the word "polygraph, " and any reference to pre-tests, charts, or questions relating to polygraphs, (3) that Bell was in foster care, that he had a bad childhood, that it was suspected he was a previous victim of sexual abuse, and his mother was schizophrenic, (4) that Eddie might have cut on himself and engaged in other self-mutilating behavior, (5) a fight or scuffle occurred between Bell and one Juan Estrada, Jr., involving suspicions Bell smoked marijuana or endangered his child.
In preparing for trial, the prosecutor created a document intended to aid its witnesses. The document summarized the evidence that was not to be disclosed to the jury. The document itself was, of course, not to be seen by anyone other than the prosecution witnesses. However, the document was inadvertently sent into the jury room along with the exhibits.
The facts surrounding the discovery of the document are critical to resolving Bell's contention. The record reflects that jury deliberations began at approximately 11:00 a.m. on January 14, 2010. Deliberations ended for the lunch break and resumed at 1:30 p.m. Proceedings were adjourned at approximately 4:20 p.m. and the jurors were released for the day. When the bailiff went back to release the jury, Juror No. 4 handed him the document prepared by the prosecutor to assist its witnesses. The bailiff brought it to the court's attention.
During a hearing, the court first considered the question of how the prosecution document got into the jury room. After hearing from the prosecutor and defense counsel, and exploring the manner in which documents, exhibits and transcripts were handled, it concluded that the document inadvertently found its way into the jury room and surmised it was accidentally mixed in with transcripts or exhibits taken into the room.
The second issue considered by the trial court was the extent to which the document might have made its way into jury comments or deliberations. The court stated that if consideration of the document was "bad enough, " it would consider granting a mistrial.
One at a time the jurors were summoned for questioning. Juror No. 10 was not aware of the document at all, knew nothing about it, and stated it did not enter into any deliberations. Juror Nos. 1, 2, 3, 5, 7, 8, 9 and 11 were aware that at the end of the afternoon deliberations, as they were about to adjourn for the day, a document was handed to the bailiff. They did not read any of it, and were not aware of its contents. They too indicated it was not discussed and did not enter into the deliberations.
Juror Nos. 4, 6 and 12 were seated next to each other at the end of the table where the prosecutor's document was found. Each of them had a different level of contact and understanding of the document. Juror No. 12 identified the document as something not appropriately before the jury. He stated that he was going through the exhibits because they were close to him and the document was at the very bottom of the exhibits. Juror No. 12 read some of the document, realized it was not an exhibit, and knew the jurors should not be reading it. Juror No. 12 understood the meaning of what was in the document and did consider it. Juror No. 4 recalled seeing the top of the document but thought it was similar to the trial judge's admonishment not to share a witness's testimony with family members outside the courtroom. Juror No. 4 stated further that it did not enter into the deliberations and nobody spoke about the document or its contents. The juror recalled the document being placed near the television and being left there. Juror No. 6 became aware of the document after juror No. 12 commented to the effect he was not sure the jury should look at the document. In response, Juror No. 6 glanced at it and was aware it said "something" about witnesses at the top. This "tipped him off" that maybe it was for witnesses, not the jury. In the process, Juror No. 6 read "only two bits" of it, none of it complete sentences. The first segment was about something he did not understand. The dialogue between Juror No. 6 and the court was as follows:
"JUROR NUMBER 6: "I don't remember what it was, because it had no meaning to me. Something like maybe Juanita or Dieguito or-I don't know. Something. Possibly a Spanish name. But I believe it was a proper noun. It was capitalized. But it had no meaning to me. So I still was confused as to what the paper was about. And so I just-my eyes flipped over and I saw a word that I did recognize, which was the name Eddie. And so I saw the name Eddie with a phrase that said something like, you are not to mention Eddy, something, something, something.
"THE COURT: Do you remember what the something, something was?
"JUROR NUMBER 6: I saw-I just remember that it was something about you are not to mention-and I believe it was the word cut or cutting. But I don't know what it was with reference to.
THE COURT: Do you, based on the words that you saw, have any sense as to what the meaning was behind it?
"JUROR NUMBER 6: Only just my inference that because it seemed to be instructions to witnesses not to mention certain things that maybe there was some other story that was not relevant to the case or things that weren't proven or that's just kind of my inference.
"THE COURT: But do you have-do you have a concrete idea of what maybe that other story was or is?
"JUROR NUMBER 6: The only thing that would come to mind would be something about Eddie cutting something.
"THE COURT: But you don't know what? Or do you have an idea as to what Eddie was cutting?
"JUROR NUMBER 6: I can guess. I don't know. I don't have a concrete knowledge of what it was talking about in the paper.
"THE COURT: Do you recall seeing a reference as to what Eddie may have been cutting, if anything?
"JUROR NUMBER 6: It seemed, again, partially just kind of from my inference, to be like maybe what things shouldn't be talked about or something like that. I was kind of guessing that it might be cutting another person or cutting himself or some sort of, you know, something that would be for some reason not admissible in court, you know, just kind of making an inference about something that would be significant enough to not be mentioned.
"THE COURT: Did you read any other portion of the document?
"JUROR NUMBER 6: No. Just the title near the top where it said witnesses. There was another line above that, I believe. But I didn't see what that said.
"THE COURT: So after you read what you have just explained to us, did you give much thought to what the document may have been talking about or referencing?
"JUROR NUMBER 6: No. Because of the fact that the other juror had mentioned that, I don't think we are supposed to have this, or, do you think we are supposed to have this, something like that, and the two brief segments that I saw, I agreed with him. I said, yeah, I don't think this is for us. And I put the paper face down on the DVD player over by the television set so that it wouldn't be seen, since it was something we were not supposed to see.
"THE COURT: Did you share with any of the other jurors what your inferences were from what you had read?
"JUROR NUMBER 6: No.
"THE COURT: The words that you had read?
"JUROR NUMBER 6: No.
"THE COURT: Did the words that you had read have any impact on your thought process during deliberations?
"JUROR NUMBER 6: No. We were already pretty much-we had made our-you know, some decisions about things that we considered to be the facts of the case. And at that point we were actually discussing what more information do we need. So we were discussing the note that we were-we had written to the bailiff and things like that about what we wanted to see more possibly from the court record or something like that for the remainder of our deliberations.
"THE COURT: To your knowledge, did any other juror reference the contents of the document during discussions and deliberations?
"JUROR NUMBER 6: Not to my knowledge. The only other juror that I believe had noticed the paper at all was juror number 4, I believe. The three of us were seated at the end of the table where the evidence initially placed, all of the exhibits and everything. So I was seated at the head of the table towards the jury room door, and then to my right was the gentleman with the short blond hair. I believe he is juror number 12. And to my left was the lady, juror number 4, who had previously been an alternate.
"THE COURT: And had the few words you read caused you to speculate at all as to any of the witnesses?
"JUROR NUMBER 6. No. When we kind of just determined that we didn't think this was for us, I can't speak for the other jurors, but for myself, I treated that as if it was something in the various circumstances where the witnesses were speaking and then one of the attorneys would make a motion to strike, you know, I just kind of treated it like that. I don't even want to think about this because-so I treated it as though it should be stricken from the record or something like that.
"THE COURT: How much thought have you given to what you read as far as your deliberations and how you feel abut the case?
"JUROR NUMBER 6: Not much at all. My only thoughts really about that paper and the things that I saw were just implications. In the end I figured, well, just to reduce the risk of anyone else seeing this, I should give it to the bailiff. So when he came to let us go for the end of the day, I saw it over there face down on the DVD player, and I thought I should just give this to him to get it out of here. And it didn't even cross my mind that it would be a big deal, because it was just some piece of paper that happened to be slipped in there. So I said, by the way, bailiff, I don't think we are supposed to have this, or something to that effect.
"THE COURT: Do you believe you can set aside the information that you gleaned from the document and discuss-and decide this case based only on the evidence heard and submitted in this case?
"JUROR NUMBER 6: Yes, I do.
"THE COURT: And do you believe you can continue to be a fair and impartial juror as to both sides?
"JUROR NUMBER 6: Yes, ma'am.
"THE COURT: Juror number 6, please do not discuss your interaction here with the court and what has been discussed with any of the other jurors outside.
"JUROR NUMBER 6: Yes, your honor.
"THE COURT: Thank you very much."
The court concluded that only Juror Nos. 4, 6 and 12 actually looked at the document. It excused Juror No. 12 and replaced the juror with an alternate. It concluded that Juror No. 4 did not understand what the document was, and in fact believed it was an admonishment given by the court. It concluded Juror No. 6 read bits of the document but really did not get much meaning from what was read. The court concluded the juror was "stretching and groping" to explain what she read.
Analysis
We first note that we are not dealing with a situation where the jury as a whole was tainted by consideration of the inadmissible document. In this case, one juror knew nothing about its existence, eight jurors knew only of its existence but did not know anything about its contents. Three jurors had physical contact with the document, but one of the three, Juror No. 4, erroneously thought it was an admonishment already given by the court. Another of the three, Juror No. 12, was dismissed and replaced after indicating he had read and understood enough to have it affect his thoughts about the case. None of the jurors discussed the document or its contents during the course of deliberations.
The case boils down to what impact the document had on Juror No. 6, who had read two "bits" of it and in the words of the trial court, was groping and stretching to try to explain what she saw.
Whether a particular incident is incurably prejudicial is by its nature speculative, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Cooper (1991) 53 Cal.3d 771, 838-839.) We agree with the trial judge's assessment that what Juror No. 6 read did not impact her view of the case.
As the court noted, Juror No. 6 read what was described as several "bits" of what was in the document. Potentially, the most damaging of the two bits was an inference Eddie cut himself or someone else. However, for Juror No. 6, there was no context as to how, where or under what circumstances this might have occurred. To the judge, the juror appeared confused about what the document meant.
We conclude there is no showing of prejudice to Bell due to actions of Juror No. 6 and therefore the motions to exclude Juror No. 6 were properly denied.
In any event, we conclude any error due to the limited revelation to Juror No. 6 was not prejudicial. The court took corrective measures to assure there was no prejudice to Bell. Each juror was closely questioned. One tainted juror was replaced, and each remaining juror indicated they could be fair. The court satisfied itself that the document did not enter into any of the deliberative processes. Because the prosecutor's document inadvertently found its way into jurors' hands, the situation is the same as any in which the court erroneously admits evidence and withdraws it. There has merely been an error of law which is categorized an incorrect evidentiary ruling. Such error is reversible only if it is reasonably probably a result more favorable to appellant would have been reached in the absence of the error. (People v. Cooper, supra, 53 Cal.3d at p. 836; People v. Pierce (1979) 24 Cal.3d 199, 207; see also People v. Gamache (2010) 48 Cal.4th 347, 397.)Here, Bell's victim testified Bell forced him to engage in sexual acts for approximately six years, from the age of seven until he was 13 years old. At trial, and to the police, Bell admitted engaging in sexual acts with Eddie. Based on this evidence and the very limited reading of the prosecutor's document by one juror, we conclude the result would have been no different in the absence of the error.
Judgment affirmed.
WE CONCUR: AARON, J., IRION, J.