Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC277402, Philip H. Hickock, Judge.
Norberto Martinez and Norma Martinez, in pro. per., for Plaintiffs and Appellants.
Franscell, Strickland, Roberts & Lawrence, David D. Lawrence, Scott E. Caron and Anh N. Nguyen for Defendants and Respondents.
ALDRICH, J.
I.
INTRODUCTION
Gonzalo Martinez (Martinez) was shot and killed by City of Downey police officers after Martinez led the officers on a long and dangerous high-speed vehicle pursuit. Plaintiffs and appellants Norberto Martinez and Norma Martinez are Martinez’s parents. Appellants appeal from a judgment rendered in their wrongful death case in favor of defendants and respondents, the City of Downey and two officers, William Kautz and Brian Baker.
On appeal, appellants contend that the trial court erred in denying their motion for new trial based upon allegations of juror misconduct. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
On February 15, 2002, Martinez led a number of police officers on a high-speed pursuit through the streets of Downey. Eventually, Martinez’s vehicle was maneuvered so that it was pinned behind parked vehicles. Martinez sat in his vehicle for the next 10 minutes and ignored commands from police officers to exit his car and put his hands up. At one point, Martinez stuck his left hand out of the driver’s window and made an obscene gesture to the police officers.
Martinez opened the driver’s door of his vehicle, stepped from the car, and placed a cigarette in his mouth. Then, Martinez was shot by officers who believed Martinez posed a threat. The officers came to this conclusion because Martinez dropped his right hand. The officers, including respondents Kautz and Baker, believed Martinez’s right hand moved toward the waistband of his pants as Martinez reached for a gun. After the shooting, no gun was found.
Numerous witnesses testified, including respondents Kautz and Baker. Also, the jury viewed a videotape of the shooting.
B. Procedure
1. The complaint, trial, and judgment
On July 10, 2002, appellants filed a complaint against respondents (the City of Downey and officers Kautz and Baker).
After a number of writ petitions, the matter proceeded to trial only on negligence. The jury returned a nine-to-three verdict in favor of the defense on January 18, 2007. On special verdict, the jury found that the two officers were not negligent.
2. The motion for new trial
Appellants filed a motion for new trial based upon juror misconduct. In support of the motion, appellants filed a declaration from their counsel (Danilo J. Becerra). In this declaration, attorney Becerra declared that after the verdict was rendered he talked to Juror No. 11 (Mr. A.) and a courtroom observer (Lennie L. W.). Attorney Becerra recounted what Mr. A. and Lennie L. W. had told him. Additionally, appellants supported their motion with the declarations of Mr. A. and Lennie L. W.
Mr. A. did not vote in favor of the verdict. He declared the following: (1) the jury foreperson (Ms. T.) informed the jury that she had been engaged to a police officer and she had long term neighbors who were police officers; (2) Ms. T. and Juror No. 12 dominated and controlled the jury discussions; (3) Juror No. 12 harassed him during the trial by writing notes on a note pad; and (4) the bailiff was dismissive of, and did not report to the judge that, two indecisive jurors were concerned about important appointments that would interfere with deliberations.
Lennie L. W. declared the following: She observed most of the trial. She saw Mr. A. talking to the bailiff on three occasions before the verdict was reached, during which it appeared that Mr. A. was complaining. On another occasion, the jury foreperson (Ms. T.) “interrupted the conversation and took [Mr. A.] by the arm and led him away towards the jury room. It appeared that [Ms. T.] had the intention of removing [Mr. A.] from the conversation and rushing him into the jury room.”
On March 27, 2007, the trial court denied the motion for a new trial.
Appellants appeal from the judgment rendered in favor of respondents. Appellants, who appear in propria persona, contend that the trial court erred in denying their motion for new trial based upon juror misconduct. We affirm.
III.
DISCUSSION
We are not persuaded by appellants’ contention that there was juror misconduct.
A. Juror misconduct
A verdict may be vacated, in whole or in part, on a new trial motion because of juror misconduct that materially affects the substantial rights of a party. (Code Civ. Proc., § 657, subd. (2); Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506.) When a party seeks a new trial based upon jury misconduct, a court undertakes a three-step inquiry. First, the court must determine whether the declarations offered in support of the motion are admissible under Evidence Code section 1150. If they are, the court must next consider whether the facts establish jury misconduct. Finally, assuming misconduct is found, the court must determine whether it was prejudicial. (People v. Danks (2004) 32 Cal.4th 269, 301-303; People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.)
Evidence Code section 1150, subdivision (a), precludes consideration of evidence demonstrating the effect of statements or events on the mental processes of jurors. (People v. Danks, supra, 32 Cal.4th at pp. 301-302.) Evidence Code section 1150 “ ‘distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .” ’ [Citation.]” (People v. Danks, supra, at p. 302.) Accordingly, with narrow exceptions, the mental processes by which a verdict was determined is not admissible. (In re Hamilton (1999) 20 Cal.4th 273, 294.) Evidence as to the effect statements made by one juror had on another juror are thus not to be considered. (People v. Steele (2002) 27 Cal.4th 1230, 1263-1265.) “ ‘ “The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” ’ [Citation.]” (People v. Danks, supra, at p. 302.) Thus, “declarations [involving] statements made or conduct occurring within the jury room. . . . are evidence of objectively ascertainable overt acts that are open to sight, hearing, and the other senses and are therefore subject to corroboration. As such, the court properly could . . . consider those statements. [Citations.]” (People v. Steele, supra, at p. 1265.)
“This distinction serves a number of important policy goals. It prevents a juror from impugning one or more jurors’ reasoning processes. It excludes unreliable proof of thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by the losing side seeking to discover defects in the deliberative process and reduces the risk of postverdict jury tampering. It also assures the privacy of jury deliberations. [Citations.]” (People v. Steele, supra, 27 Cal.4th at pp. 1261-1262.)
In reviewing an order denying a new trial motion on the ground of juror misconduct, as distinguished from an order granting the motion, we independently determine whether prejudice resulted from any misconduct based on our review of the entire record. (People v. Tafoya (2007) 42 Cal.4th 147, 192-193.) “While a presumption of prejudice arises when there has been any juror misconduct, the presumption may be rebutted by evidence that no prejudice resulted. [Citation.]” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818.)
B. The lack of a “no knowledge” affidavit does not prevent us from considering the issues raised by appellants.
Before we address appellants’ arguments, we must discuss respondents’ suggestion that we are precluded from reviewing appellants’ contention because appellants did not present “no knowledge” affidavits. Respondents assert that appellants were required to present affidavits establishing that they and their counsel were unaware of the misconduct until after the verdict was rendered. For this proposition, respondents rely primarily upon Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103.
In Weathers,the Supreme Court held that litigants must promptly bring to the trial court’s attention any impropriety, and thus, parties filing a new trial motion based upon jury misconduct must file a declaration stating that neither they nor their counsel had knowledge of the impropriety until after the verdict was rendered. (Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d at p. 103.) However, Weathers did not address misconduct that occurred after deliberations began. “The ‘no knowledge’ affidavit requirement is inapplicable in those cases where . . . the misconduct consists of events occurring during the jurors’ secret deliberations prior to the announcement of their verdict. The rationale for requiring counsel to verify lack of prior knowledge of jury misconduct is to prevent counsel from withholding such knowledge until after an unfavorable verdict is announced, thereby thwarting the trial court’s exercise of its discretion in correcting procedural error. Where the facts confirm that counsel could not possibly have known of the alleged misconduct before the verdict was rendered, such a ‘no knowledge’ affidavit is rendered unnecessary. [Citation.]” (Krouse v. Graham (1977) 19 Cal.3d 59, 82.)
Here, most of the conduct delineated by appellants as being misconduct occurred after deliberations began. Thus, there is no requirement that appellants submit a “no knowledge” affidavit with regard to those episodes. Further, we will address other purported acts of misconduct because they are intertwined with events that occurred after deliberations began, or are of such nature that appellants would not have been aware of the incidents until after the start of deliberations. In any event, as discussed below, none of the episodes constituted misconduct warranting reversal.
C. We may not consider the declaration of attorney Becerra.
In part, appellants rely on the declaration of their counsel, attorney Becerra. The relevant statements in attorney Becerra’s declaration merely recount what was told to him by Mr. A. and by the court observer Lennie L. W. However, inquiries as to the validity of a verdict must be supported by admissible evidence. (Evid. Code, § 1150, subd. (a).) Evidence presented in a declaration on a new trial motion must be based on the declarant’s personal knowledge; a verdict cannot be impeached by hearsay. (Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1670-1671 [declarations from investigators recounting what jurors had told him inadmissible to support new trial motion].) Because the relevant portions of attorney Becerra’s declarations merely relay what was said to him by others, his statements are hearsay and cannot be considered by us in evaluating the motion for new trial.
D. The purported incidents of misconduct do not warrant reversal.
1. Appellants first contend that there was juror misconduct because the jury foreperson, Ms. T., concealed information in voir dire.
“[D]uring jury selection the parties have the right to challenge and excuse candidates who clearly or potentially cannot be fair. Voir dire is the crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. ‘A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]’ [Citations.]” (In re Hamilton, supra, 20 Cal.4th at p. 295.) A juror who conceals material facts or gives false answers during voir dire has committed misconduct that raises a presumption of prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1208; People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Appellants’ argument that Ms. T. concealed vital information during voir dire is based upon statements made by Mr. A. in his declaration. Mr. A. declared that during deliberations Ms. T. told jurors that she was friends with her neighbors who had been police officers for 15 years and that she was engaged to a police officer.
However, in voir dire, Ms. T. revealed that her godson’s father had been a Los Angeles Police Department patrol officer for 14 or 15 years. When asked if her association with this man had led her to believe that the Downey Police Department was like the “home team,” i.e., would have some advantage, she replied, “not necessarily.” Ms. T. explained that she had dated a captain of the Los Angeles Police Department, who had revealed that there were “some not-so-great” officers. Thus, Ms. T. revealed in voir dire that she had associations with police officers who had been members of the force for a lengthy time. She also revealed that she had dated a member of the force, even if she did not state that she was “engaged” to him, as Mr. A. reported. Thus, Ms. T. revealed that she had present and past relationships with law enforcement personnel.
Additionally, even if Ms. T.’s “engagement” suggests a closer level of intimacy with the man than dating him, this conclusion does not change the relationship to the extent that it showed Ms. T. was biased in favor of officers. Rather, Ms. T. explicitly negated all suggestions of bias. Ms. T. revealed that she had learned that some officers were “not-so-great” officers. Thus, Ms. T. acknowledged that it was her understanding that some officers were problems and any relationship she had with officers would not influence her decision. Any presumption of prejudice was rebutted by an affirmative showing that prejudice did not exist. (People v. Carter, supra, 36 Cal.4th at p. 1208; compare with Enyart v. City of Los Angeles, supra, 76 Cal.App.4th 499 [bias against police was prejudicial].) There is no reasonable probability of prejudice, i.e., there was no substantial likelihood that she was biased. (In re Hamilton, supra, 20 Cal.4th at p. 296.)
According to the inadmissible declaration of attorney Becerra, Mr. A. had informed him that “[Ms. T.] declared to the jury that she ‘knows how cops work.’ ” These statements by attorney Becerra are hearsay and thus are not admissible to impeach the verdict. Even if this evidence was admissible, it would not require reversing the judgment. Courts do not expect jurors to divest themselves from their backgrounds when analyzing the evidence. Jurors are not automatons who can separate out their life experiences from the deliberation process. (People v. Steele, supra, 27 Cal.4th at p. 1266; In re Lucas (2004) 33 Cal.4th 682, 696.) It is impossible to sterilize the deliberative process from all external factors. Ms. T. was relying upon her life experiences in suggesting how the evidence should be analyzed.
Appellants’ assertion that Ms. T. concealed information during voir dire does not warrant reversal.
2. Appellants contend there was juror misconduct because the foreperson, Ms. T., and Juror No. 12 dominated and controlled the jury discussions and Mr. A. was harassed during the trial. This contention is based upon the statements of Mr. A. and Lennie L. W., who was a court observer and not a juror.
Mr. A.’s declaration provided an example of how Ms. T. and Juror No. 12 purportedly controlled the process. Mr. A. declared: “the manner in which the discussion was directed [was] according to [Ms. T.’s] agenda. For example, the jurors had questions that were never answered by the judge. [Ms. T.] did not want to ask too many questions because she stated, ‘I do not want to look stupid and I don’t’ want to bother the judge.’ ” Further, Ms. T. “narrowed it down [to] questions from the jurors, that could match her agenda. The reason being, she thought it was not a ‘stupid’ question.” These statements regarding how the jury reached its verdict are not admissible to prove that there was jury misconduct because the statements relate the mental processes of the jury’s decisionmaking. Appellants may not rely on the subjective considerations used by the jury to reach its conclusions. (Evid. Code, § 1150; e.g., Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 385-387 [declarations purporting that one juror dominated deliberation and others wanted to hurry the process were inadmissible to impeach the verdict].)
With regard to the allegation that Ms. T. would not present questions to the trial court, appellants have not presented any evidence to demonstrate the significance of the questions or how Ms. T.’s actions influenced the outcome of the case.
Mr. A. also declared that throughout the trial he had been harassed by Juror No. 12 who wrote notes “on his note pad stating, ‘shut up,’ and ‘don’t look at me and don’t touch me.’ ” These actions are inconsequential taunting. (Cf. Tillery v. Richland (1984) 158 Cal.App.3d 957, 977 [acerbic, critical, “cutting and sarcastic words do not ipso facto constitute jury misconduct”]; People v. Keenan (1988) 46 Cal.3d 478, 540-541 [pointing a finger at holdout judge and stating “I’ll kill you . . .” did not warrant new trial; threat was an expression of frustration, temper and strong conviction of another panelist.) Further, if this was harassment, it could not have been prejudicial. Mr. A. was not swayed by the actions of Juror No. 12 as Mr. A. maintained his minority view and did not vote in favor of the defense.
Lennie L. W. declared that she had seen Mr. A. talking to the bailiff on three occasions. She did not know what was said, but it appeared to Lennie L. W. that Mr. A. seemed to be concerned about something. Lennie L. W. further declared that the day before the verdict was rendered she saw Mr. A. having a serious conversation with the bailiff and Mr. A. appeared to be complaining. Ms. T. interrupted the conversation, grabbed Mr. A. by the arm, and led Mr. A. away towards the jury room. The record does not contain any information as to the content of the conversations between Mr. A. and the bailiff and there is no information as to its effect. To the extent this information shows that Ms. T. wished to expedite the process, there was no misconduct.
Further, there is nothing in the record to suggest that the purported domination and control of the process by Ms. T. and Juror No. 12, or the purported harassment by Ms. T. infected the verdict. Mr. A. does not declare that these actions changed the outcome of case. (Iwekaogwu v. City of Los Angeles, supra, 75 Cal.App.4th at pp. 818-819 [sarcastic, rude, comments by juror do not warrant reversal].)
The only evidence that the actions of Juror No. 12 had any effect on the jury came from the declaration of attorney Becerra. Attorney Becerra declared in part: “After the verdict, I spoke with [Mr. A. who] informed [me] that on January 17, 2007 (the day before the verdict) he was threatened by Juror No. 12 . . . following [Mr. A’s] detailed presentation and review of the evidence favorable to [plaintiffs]. [Mr. A.] advised that the threat occurred while [exiting] the jury room and Juror No. 12 . . . stated to another juror that ‘he should smack that kid.’ [Mr. A.] was extremely upset and reported the threat to the courtroom bailiff, but no action was taken with regards to the threat. [Mr. A.] also reported that this influenced his efforts to explain to the other jurors that the number of shots fired made the shooting unreasonable.” As explained above, however, the statements in attorney Becerra’s declaration are hearsay and cannot be used to impeach the verdict. Further, even if the taunting hampered Mr. A.’s efforts to use the number of shots to argue for liability, this factual argument was already before the jury for its consideration. It was discussed by attorney Becerra in closing argument. Thus, if this occurred, we cannot conclude there was prejudice.
To the extent some of the information provided by Mr. A. may be considered facts that are open to sight, hearing, and the other senses and thus subject to corroboration, the information does not demonstrate misconduct. There are no facts suggesting that the jury failed to consider and evaluate the evidence.
Thus, the assertion that there was jury misconduct because two jurors dominated and controlled the process and Mr. A. was harassed during trial does not warrant reversal.
3. Appellants argue there was misconduct because the bailiff ignored information from two indecisive jurors that they had important appointments that would interfere with deliberations.
This argument is based upon Mr. A.’s statements that the bailiff told one female juror who had a doctor’s appointment that “deliberations should only take 2 days and for her not to worry” and the bailiff asked another female juror if she could reschedule an interview because the deliberations “will only last a few days.” According to Mr. A., the concerns of the two women were never reported to the judge.
However, there is no evidence that the bailiff misinformed these two jurors about the expected length of the deliberations or that their personal affairs forced them to violate their obligations to properly deliberate. (People v. Beeler (1995) 9 Cal.4th 953, 986-991 [no demonstration juror failed to deliberate when reported that his father had died and he had a flight that afternoon, but did not ask for discharge or ask to be excused even though juror].) Further, affidavits containing information that jurors want to rush through deliberations concerns the jurors’ subjective mental processes and are not competent evidence to impeach a verdict. (Continental Dairy Equip. Co. v. Lawrence, supra, 17 Cal.App.3d at pp. 385-386; Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 910 [declaration inadmissible that stated a juror felt pressured by her employer to return to work].)
Attorney Becerra declared that Mr. A. had reported that there “were two female jurors that changed their decision to the defense because they did not want to reschedule doctors appointments and other commitments if the deliberations continued.” This statement is hearsay and cannot be used to impeach the verdict. Further, even if it was admissible, it would not be admissible because it would be conjecture by Mr. A. as to why these women voted for the defense.
Thus, the assertion that the bailiff ignored the concerns of two jurors constitutes jury misconduct does not warrant reversal.
4. Conclusion
Our review of the relevant and admissible evidence leads us to conclude that the trial court properly denied appellants’ motion for new trial.
IV.
DISPOSITION
The judgment is affirmed. Appellants are to pay all costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.
Another example of evidence that would not alter the outcome of the motion is contained in another excerpt in attorney Becerra’s declaration. This excerpt relates to the life experiences of Juror No. 12. Attorney Becerra declared: “[Mr. A.] further advised [me] that Juror No. 12 informed other jurors including [Mr. A.] before deliberations that his parents were district attorneys and in fact, he stated, ‘If these cops were guilty, then the D.A. would have prosecuted this case.’ With that bold statement, it is clear that he found these cops not guilty because, ‘his parents know best.’ Thus, he informed the jurors that the district attorneys who work on cases do not have any bias opinion in these matters because they do not have a personal relationship with the officers who are involved in each case; therefore, we can trust their siding in this case to the Defendants. This took place in front of Starbucks at lunch on 11 January 2007.” These statements by attorney Becerra are hearsay and thus are not admissible to impeach the verdict. Further, they are generalized comments of one’s own experiences which do not constitute misconduct. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1339-1340.) Even if this evidence was admissible, it would not require reversing the judgment as they address Juror No. 12’s reliance upon his life experiences. (People v. Steele, supra, 27 Cal.4th at p. 1266; In re Lucas, supra, 33 Cal.4th at p. 696.)