Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF041924, Ronn M. Couillard, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Joseph Madrigal is before this court for the fifth time seeking a proper consideration of his motion for a new trial. This time, we will grant a new trial and direct the matter be heard before a different judicial officer.
FACTUAL AND PROCEDURAL SUMMARY
On March 10, 1999, a jury convicted Madrigal of attempted murder, mayhem, and second degree robbery. He appealed and, in an unpublished opinion (People v. Madrigal (May 13, 2002, F033791)) (hereafter F033791), we determined that juror misconduct had occurred, which presumptively was prejudicial. We based this determination, in part, on the failure of the trial court to instruct the jurors with the standard pretrial admonition (CALJIC No. 0.50) and the separation admonition (CALJIC No. 17.52). Because the jurors had not been instructed with the standard admonitions, they apparently were unaware that their actions constituted misconduct, and neither the jury foreperson nor any other juror reported the misconduct to the trial court during the trial. We remanded the case and directed the trial court to provide juror identification information to the defense and to conduct a full evidentiary hearing on juror misconduct.
The factual and procedural summary is adopted from our unpublished opinion in Madrigal’s last appeal (People v. Madrigal (Aug. 2, 2006, F047612)) (hereafter F047612).
After remand, all 12 jurors were notified of the defense request for juror identification information. Eight jurors declined to be contacted. When the trial court failed to provide juror identification information on those eight jurors, or to subpoena those jurors for an evidentiary hearing, Madrigal filed a petition for writ of mandate in our case No. F042570. This court denied the petition without prejudice.
The trial court heard testimony from four jurors in March 2003. At that time, Madrigal also renewed his request for juror identification information on the remaining eight jurors or, alternatively, that the trial court subpoena those jurors for an evidentiary hearing. The trial court thereafter issued a written ruling denying the request.
On May 9, 2003, Madrigal filed a second petition for writ of mandate. In an unpublished opinion (Madrigal v. Superior Court (June 29, 2004, F042991)) (hereafter F042991), this court concluded that the trial court had abused its discretion and granted the petition. We directed the trial court to set an evidentiary hearing for the purpose of obtaining additional evidence on the issue of juror misconduct and to compel by subpoena the attendance of the remaining eight jurors at that evidentiary hearing.
In September 2004, the trial court held a further evidentiary hearing, taking testimony from the remaining eight jurors. At this hearing, the defense tried to question jurors about possible misconduct that had come to light after issuance of the remand. The trial court precluded questioning into this area. During the hearing, most of the jurors acknowledged that because of the passage of approximately five years since the time of the trial, their memory of events had faded.
On January 14, 2005, the trial court again denied Madrigal’s motion for new trial. On February 9, 2005, Madrigal’s motion for reconsideration was denied. Madrigal appealed. On August 2, 2006, in our unpublished opinion in case No. F047612, we reversed the trial court’s order denying Madrigal’s motion for new trial, vacated the trial court’s findings that the juror misconduct was not prejudicial, and remanded the matter for further proceedings. In our unpublished opinion we stated:
“On remand, the superior court is directed to set an evidentiary hearing for the purpose of affording Madrigal an opportunity to examine jurors thoroughly on any and all potential areas of juror misconduct, including, but not limited to, the newspaper article, separate deliberation, statements that Madrigal was part of the Mexican Mafia, and comments regarding the female spectator and note-taking. We want to make it clear that Madrigal is to be afforded an opportunity to question and examine all of the jurors regarding any juror misconduct raised in this or any prior appeal, writ petition, or hearing, as well as any potential misconduct that comes to light subsequent to the filing of this appeal.
“In evaluating the testimony of jurors at the evidentiary hearing, we remind the parties that this court already has determined that juror misconduct occurred that gives rise to a presumption of prejudice. Unless the People affirmatively rebut the presumption by proof that no prejudice resulted, Madrigal is entitled to a new trial. (People v. Pierce (1979) 24 Cal.3d 199, 207.) An ‘imperfect denial,’ such as a failure to remember or a failure to specifically deny, does not rebut affirmatively a presumption of prejudicial juror misconduct. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 511.)”
Further evidentiary hearings were held on December 14 and 15, 2006, January 9, 2007, and February 28, 2007. Seven jurors testified on December 14, another three testified on December 15, one testified on January 9, and the final juror testified on February 28.
At the conclusion of the hearings, Madrigal argued that seven instances of juror misconduct had been established, warranting a new trial.
One juror testified to being fearful because she was followed home by a Hispanic male she had observed in the courtroom and it crossed her mind that he was connected to Madrigal. Another juror, an African-American, testified to racial remarks made by another juror. After the remark, she distanced herself from the other jurors because none of them appeared offended by the remark.
There also was testimony by four jurors regarding their receipt and review of a newspaper article on the case.
The trial court issued a written ruling again denying Madrigal’s motion for new trial, finding that only one instance of misconduct had been established and determining no prejudice resulted because the jurors testified it did not affect their deliberations.
On July 9, 2007, Madrigal filed a timely notice of appeal. On January 11, 2008, Madrigal requested that this court take judicial notice of the records and opinions in the related actions, case Nos. F033791, F042991 and F047612. On March 28, 2008, the People made a similar request for judicial notice. By orders dated January 15, 2008, and April 2, 2008, we deferred ruling on the motions pending consideration of the merits of the appeal. We will grant the requests.
DISCUSSION
Madrigal contends that his due process rights were violated in that the trial court’s comments prior to the evidentiary hearing after remand indicated it had predetermined the outcome of his new trial motion. He also argues that he established several instances of prejudicial juror misconduct that were not rebutted by the prosecution, entitling him to a new trial. We will not decide those issues specifically as we conclude the order of the trial court fails to apply our prior holdings correctly. The order must be reversed and Madrigal’s motion for a new trial must be granted.
In our last opinion in this matter, case No. F047612, issued on August 2, 2006, we remanded the matter for a full and complete evidentiary hearing. In providing direction to the trial court on remand, we stated:
“In evaluating the testimony of jurors at the evidentiary hearing, we remind the parties that this court already has determined that juror misconduct occurred that gives rise to a presumption of prejudice. Unless the People affirmatively rebut the presumption by proof that no prejudice resulted, Madrigal is entitled to a new trial. [Citation.] An ‘imperfect denial,’ such as a failure to remember or a failure to specifically deny, does not rebut affirmatively a presumption of prejudicial juror misconduct. [Citation.]”
After remand, there was a proceeding in the trial court regarding the letter to be sent to all jurors about the evidentiary hearing to be scheduled for the motion for new trial. At the start of the proceeding, defense counsel stated:
“I would like to put something on the record that caused me some concern. I’ve been thinking about it a lot this week. On Monday, October 30, I had an informal conversation in chambers.… But the court said something that really bothered me. I want to put it on the record.
“You indicated something to the effect you are going to leave it up to the court of appeal to grant the motion for a new trial. I want to express what my concerns are.… [I]t caused me a lot of concern because it does point to the court being pre-biased, having lost its impartiality, not being independent when the court makes a statement like that.
“ … The court’s comment, I think coupled with the fact that you made several statements where it appears to me you seem to be affected by the fact that the court of appeal is critical of you, I don’t quite read the opinion that way, you seem to have made comments the court of appeal was critical of you and taking it personally. [¶] … [¶]
“Actually, it did happen in chambers, it wasn’t on the record. I think it’s something that should be on the record.”
The trial court responded:
“It will be on the record. I did make the statement. What I referred to in the statement was I denied the motion for new trial based upon the two issues presented to the court and the hearings we’ve had with the jurors. It’s up to the court of appeal, if they are going to overturn this in some fashion based upon my rulings in respect to those two issues. The court of appeal has seen fit to send the matter back to allow counsel to explore other issues, which we somewhat started to get into during the hearings with the jurors.…
“ … If something comes up among those other issues that would cause this matter to be overturned, I’d have to make that ruling. I’m not prejudging any of that.
“I’ve already judged that and determined that the issues relating to the newspaper and the jurors deliberating did not rise to the level to grant a new trial. That’s what my remark was referring to.”
This comment by the trial court is indeed troubling, for it is directly contrary to the holding in case No. F047612. In that decision, we specifically held that Madrigal had established juror misconduct pertaining to the newspaper and separate deliberations giving rise to a presumption of prejudice and that the People were required to rebut affirmatively the presumption or Madrigal was to be granted a new trial. The trial court’s comment misstates the holding in case No. F047612.
Furthermore, the trial court made additional comments that call into question whether Madrigal received a fair and impartial hearing on his motion for new trial. The trial court’s comments give the impression that the judge took offense at the opinion of this court, remanding the matter for a full evidentiary hearing. The exchange between the trial court and defense counsel continued:
THE COURT: “I also did take some offense to the portions of the opinion that said Mr. Madrigal is prejudiced by the time delay.”
DEFENSE COUNSEL: “For the record, I know I responded to that when we were in chambers. It’s my opinion part of the delay which prejudiced Mr. Madrigal is that the court didn’t grant my request to have a full evidentiary hearing back at the time of trial.”
THE COURT: “I had no authority to order them back until a writ was taken and the appellate court sent down another decision and said yes, you must bring them back. I still am questioning as to whether that’s a valid order.”
The evidentiary hearing at which jurors were to be examined commenced on December 14, 2006. At that time, further comments were made that call into doubt the fairness of the hearing on a motion for new trial. At the start of the December 14 evidentiary hearing, the following exchange occurred:
PROSECUTOR: “I would like the court to clarify something regarding this examination. As to whether we are going to be questioning the jurors as to the two previous issues, the newspaper and the supposed separate deliberations, in this hearing or what the topics are going to be?”
THE COURT: “I’m looking at the August 2, 2006, opinion that’s file stamped as having been filed on that date. This is the most recent opinion. At the bottom it says, ‘Superior court finding of no juror misconduct vacated. The matter is remanded to superior court.’
“You can correct me if I’m wrong. I take it this is sent back so that we don’t necessarily go over old ground again, but to explore the areas that the defense was precluded from going into during the initial examination. That is, any juror misconduct other than the two that were identified, that is the newspaper article and the deliberations during the break.
“I don’t know. I’m not going to try to interpret any of these opinions anymore because every time I do, I come up with the wrong conclusion.…
“[DEFENSE COUNSEL]: I don’t want to preclude it, if something comes up about the earlier issues.… [¶] … [¶]
“[DEFENSE COUNSEL]: I do think, looking back over the transcripts, it looks like we went into it as thoroughly as we could. To remind the court, a lot of the jurors could not recall because of the passage of time. [¶] … [¶]
“[PROSECUTOR]: In addition, your Honor, the way I’m viewing this hearing, it’s a motion for new trial based on juror misconduct. Normally, an attorney would file a motion, attached with juror affidavits as to what misconduct allegedly occurred, and then the court would have an evidentiary hearing. We missed the first step in terms of these new allegations that we’re not sure what they are. So because of that, it’s the defense’s burden at this point to show some misconduct has occurred before the People have the burden to rebut the presumption of prejudice.
“THE COURT: You are exactly right. That’s the way I viewed it.” Again, this comment by the trial court constitutes a misstatement of the holding in case No. F047612. In that decision, we specifically stated that the People had to present evidence to rebut affirmatively the presumption of prejudice. The trial court did not require the People to rebut the presumption of prejudice. (In re Stankewitz (1985) 40 Cal.3d 391, 402.) Instead, the trial court and the People stated their understanding of the decision to be that Madrigal had to “show some misconduct ha[d] occurred” before the People were required to rebut the presumption of prejudice. An incorrect standard was applied by the trial court. (People v. Von Villas (1992) 11 Cal.App.4th 175, 257.)
Our unpublished opinion in case No. F047612 concluded that Madrigal had established juror misconduct by receipt of extraneous information and in separate deliberations. Despite this holding, in addressing the instance of the two jurors remaining behind in the jury room during a break in deliberations in order to review evidence, the trial court’s decision after remand states “no jury misconduct” occurred despite the “innuendos and speculation” in this area. The holding in case No. F047612 is not innuendo and speculation; it is the law of the case.
As for receipt and review of the newspaper article, the trial court concluded that “the presumption of prejudice created by the newspaper article has been overcome by the verdict of the jury.” If this were correct, this court’s unpublished opinion in case No. F047612 would not have found a presumption of prejudice from receipt of the article, and we would not have directed the People to rebut the presumption of prejudice.
On the issue of rebutting the presumption of prejudice, the trial court concluded on remand that the presumption was rebutted because jurors stated “they decided the case solely upon the evidence produced in court.” Testimony by a juror that extraneous information played no part in his or her decisionmaking process cannot be considered in determining whether prejudice has been rebutted because such testimony goes to the juror’s subjective reasoning process. (Evid. Code, § 1150, subd. (a); People v. Nesler (1997) 16 Cal.4th 561, 584.)
The decision of the trial court after remand also makes pointed reference to the length of time each of Madrigal’s four prior appeals were pending before this court prior to decision—“Some thirty[-]five months later,” “Thirteen months later,” and “Nineteen months later.” Other than as a further example of the trial court’s taking offense at the conclusion of this court in case No. F047612 that Madrigal has been prejudiced by delay, there is no apparent reason for the focus on the length of time required to process each appeal.
Madrigal contends the comments by the trial court establish that he was deprived of due process and a fair hearing. The People contend that these issues are not cognizable on appeal because Madrigal did not seek to disqualify the judicial officer during the trial court proceedings and, alternatively, the comments do not reflect any bias or prejudging of the motion for new trial. Even if the comments were made out of frustration and were merely an expression of preliminary opinion, such comments created an appearance of impropriety.
The record reflects that the trial court failed to follow this court’s unpublished opinion in case No. F047612. Regardless of whether Madrigal should have sought to disqualify the judicial officer before proceeding with the evidentiary hearing, this court has the discretion to address constitutional issues raised for the first time on appeal. (Punsly v. Ho (2001) 87 Cal.App.4th.)
Failure to follow this court’s unpublished opinion in case No. F047612 deprived Madrigal of a fair hearing on his motion for new trial, and he was deprived of due process when the trial court failed to require the People to rebut the presumption of prejudice as we directed in our opinion.
Madrigal has been seeking a full and fair hearing on a motion for new trial for over nine years. The delay in obtaining a full and fair hearing on the motion has been through no fault of his own. In our unpublished opinion in case No. F047612, we directed the People to rebut the presumption of prejudice. We stated that a failure to remember or a failure specifically to deny does not rebut a presumption of prejudice, and many jurors already had testified that their memories had faded due to passage of time. We also are mindful that the issues arose in large part because the trial court failed to issue standard admonitions to the jury regarding receipt of outside information and separate deliberations.
Madrigal has been before this court multiple times seeking a full and fair hearing on a motion for new trial. In several instances, Madrigal had to seek redress because the trial court misinterpreted and misapplied our opinions. The trial court itself noted its difficulty in understanding and interpreting our opinions. As a result, we took care to be specific in our directives to the trial court and parties in our decision in case No. F047612. Despite our efforts, the trial court once again misinterpreted and misapplied the holding of our decision in case No. F047612.
Under these circumstances, we will reverse the order denying Madrigal’s motion for a new trial and order that the motion be granted. We also will direct that the new trial be heard by a different judicial officer.
DISPOSITION
The parties’ requests for judicial notice are hereby granted. The order denying the motion for a new trial is reversed. The trial court is directed to enter a new order granting Madrigal’s motion for a new trial. The matter is remanded to the superior court for further proceedings consistent with this opinion. Any new trial and all further hearings shall be held before a different judicial officer.
WE CONCUR: DAWSON, J., KANE, J.