Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. GIC853915, Yuri Hofmann, Judge. Affirmed.
McCONNELL, P. J.
Plaintiff Lindy O'Leary appeals a judgment by special verdict in favor of defendants Ezekiel Awbrey, Mervin Hee and Joseph Baima on her complaint for violation of her federal civil rights (42 U.S.C. § 1983). O'Leary contends the superior court erred by not granting her a new trial based on jury misconduct and defense counsel's cross-examination of an expert witness. Further, she challenges the sufficiency of the evidence to support the verdict in favor of Baima. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Preliminarily, we note that O'Leary violates a basic rule of appellate practice by reciting only the evidence favorable to her and ignoring the evidence that supports the verdict. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Brockey v. Moore (2003) 107 Cal.App.4th 86, 96; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 9:27, p. 9-8.) Except when pointing out a conflict in the evidence, we recite the facts most favorable to the judgment. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872.)
O'Leary and her husband Gary O'Leary live on a large property in Poway, California, that is fenced and gated. In 1994 they began rehabilitating injured or sick wildlife through the Wildlife Center, which Diana Seiberns operated under rehabilitation permits California Department of Fish and Game (the Department) issued her. The Department allowed home care providers to operate under rehabilitation facilities' permits, and O'Leary kept wildlife at her home under Sieberns's permit.
To avoid confusion, we hereafter refer to Gary O'Leary by his first name.
The Department also issues other types of permits, such as restricted species permits, shelter permits and exhibition permits. Since the record is sometimes unclear on what type of permit is under discussion, and since the type of permit does not affect our opinion, we hereafter use the term "permit."
In 1998 a woman asked O'Leary to take in a newborn puppy from her dog's litter because it was not doing well. The woman told O'Leary she believed her dog had bred with a coyote. The O'Learys named the animal Cotie and raised him as a domestic dog. Cotie had golden-colored eyes and looked like a coyote.
In 2000 Sieberns advised O'Leary she planned to move out-of-state and not renew her permit. Sieberns asked O'Leary whether she wanted to obtain a permit, but she declined. O'Leary, however, wanted to take possession of the Wildlife Center's restricted species birds, which were permanently crippled and nonreleasable. According to O'Leary, she believed she was not required to obtain a permit to do so because she telephoned a game warden in the Department's Region 5, which includes the San Diego area, and he told her the Department was "implementing a program" and "I didn't have to do anything." The Department denied that claim.
Awbrey is a game warden in Region 5. On September 11, 2004, he received a telephone call from a woman who worked for the Fund for Animals, a rehabilitation center in Ramona that had housed hundreds of coyotes. She advised him that O'Leary was in possession of a coyote and had no permit.
Awbrey checked his files at the Department and found no permit for O'Leary. Additionally, she was not listed as a home care provider under anyone else's permit. He also telephoned the Department's legislative branch in Sacramento and it had no record of a permit for her.
On September 13, Awbrey went to O'Leary's property wearing his uniform and driving his Department truck. Before he parked, Awbrey saw bird cages in the front yard, one of which contained three red-tail hawks. After he parked and looked over a gate, he could see a red-shouldered hawk in another cage. He noted the cages were not in compliance with governmental regulations.
What occurred on September 13 was contested. According to Awbrey, Gary confirmed he had a coyote and consented to Awbrey's entry onto the property and into the residence. Awbrey found Cotie in the back yard in a cement enclosure. O'Leary appeared and told him Cotie was a hybrid dog. Awbrey responded, "Ma'am, there's no dog in this coyote. This is 100 percent pure coyote." Further, Gary led Awbrey to additional wild birds on the property, including seagulls, crows, ravens and kestrels. Awbrey said he intended to seize the wildlife.
Awbrey returned to his truck and called the Department and the Fund for Animals for assistance. O'Leary approached Awbrey crying and gave him an envelope of documents, including permits in Seiberns's name that expired in 1999 and 2000, and Cotie's veterinarian records. Cotie and 19 wild birds were crated and taken to the Fund for Animals. After speaking with a lawyer, O'Leary demanded a search warrant. She yelled at Awbrey and slammed a gate shut.
Cotie, however, was first taken to a veterinarian. At the Fund for Animals facility five of the birds died, another bird was euthanized in violation of a court order, and Cotie died in January 2005. At some point the remaining birds were temporarily returned to O'Leary pursuant to court order pending the outcome of an administrative proceeding in which she challenged the Department's denial of a permit.
According to O'Leary, she confronted Awbrey and denied him entry onto the property without a search warrant. Awbrey said he did not need a search warrant because she had wildlife on the property. She was admittedly "very mad" and ''in his face." She asked him to leave, but he pushed her aside and went into the back yard. She told him Cotie was a hybrid dog and had been raised as a pet, and he had a seizure disorder that required medication. She feared he would die if he was confiscated and treated like wildlife. O'Leary told Awbrey the Department had informed her she did not need a permit for the birds.
O'Leary retrieved Cotie's medical records from the house and confronted Awbrey again. She screamed at him to look at the records, and he ordered her to "Back up. Back up. Back up." As she was backing up, he caught her by the arm and threw her into a fence post, injuring her face, right eye and neck and causing her to briefly lose consciousness. When she came to, Awbrey was standing over her and warned that if she caused any trouble for him he would ensure that her animals died.
According to Gary, when Awbrey asked for permission to enter the property to confiscate a coyote, Gary said he needed to talk to O'Leary first. He jumped over a fence to find O'Leary, and she told him to insist on a search warrant. Gary complied, but Awbrey said he did not need a search warrant since there was wildlife on the property. O'Leary then came out and began arguing with Awbrey. She left to telephone a lawyer, and Awbrey told Gary to calm her down or he would arrest her. Gary eventually consented to Awbrey's search because he was intimidated and did not want O'Leary arrested or further confrontation.
Gary did not observe an assault, but he heard Awbrey order O'Leary to "back off," and heard her say, "Take your hands off of me." Gary then heard "a thump on the gate" and the gate "shuddered." When he checked on O'Leary she was crying, the side of her face and her neck were red and she reported that Awbrey shoved her.
Awbrey denied ever touching or threatening O'Leary. Further, the persons who assisted him in seizing the animals saw no physical contact between Awbrey and O'Leary or any type of injury to her, and neither she nor Gary complained that she had been assaulted or injured.
O'Leary contacted the press about the confiscation, and on November 5, 2004, an article appeared in the San Diego Union-Tribune. She also complained to Governor Schwarzenegger and a state senator.
Awbrey finalized his report on November 1, 2004, and he submitted it to the San Diego City Attorney's office and asked it to prosecute O'Leary criminally for possessing restricted species without a permit. It ultimately declined. Awbrey then approached an agent with the United States Fish and Wildlife Department for possible prosecution based on the illegal possession of migratory birds. That department cited O'Leary.
In September 2005 O'Leary sued Awbrey for violation of her federal civil rights (42 U.S.C. § 1983 (section 1983)). In August 2006 she filed a second amended complaint (hereafter complaint), which added Department employees Joseph Baima and Mervin Hee as defendants.
The complaint also named the Fund for Animals and its assistant manager as defendants, but before trial O'Leary voluntarily dismissed them with prejudice.
The predicate acts for O'Leary's federal civil rights claims were the alleged violations of her federal constitutional rights. She argued Awbrey violated her First Amendment rights by retaliating against her after she reported the incident to the press and the government, violated her Fourth Amendment rights by conducting an illegal search and seizure and using undue force, and violated her Fourteenth Amendment rights to due process by seizing the wildlife without notice or a hearing.
Defendants Hee and Baima were Awbrey's superiors. O'Leary argued Hee and Baima violated her Fourteenth Amendment rights by implementing a so-called "amnesty program" between late 2000 and late 2001, under which rehabilitation facilities could allegedly turn in illegal species without losing their permits, but not giving home care providers direct information on the program, such as its end date. Rather, the defendants required permit holders to relay information they received from the Department to home care providers, which caused confusion.
The jury returned a special verdict form, finding that none of the defendants violated O'Leary's civil rights.
O'Leary moved for a new trial, arguing there was irregularity in the proceedings, particularly juror misconduct, and insufficiency of the evidence to support the verdict. In support of the motion, she submitted declarations from five jurors. Four of the jurors stated they were influenced by the fifth juror, who misinterpreted a jury instruction on the elements of O'Leary's civil rights claims. The fifth juror stated he and the other four jurors all misinterpreted the instruction. Further, the jurors claimed they were confused on the legal concepts of O'Leary's alleged "consent" to a search and "harm" arising from Awbrey's alleged retaliation against her.
The defendants objected to most of the statements in the juror declarations on the ground they are improper impeachment barred by Evidence Code section 1150. The court sustained most of the objections and denied the motion for new trial. Judgment for the defendants was entered on April 5, 2007.
Section references are to the Evidence Code unless otherwise specified.
DISCUSSION
I
Juror Misconduct
A
1
"Juror misconduct is one of the specified grounds for granting a new trial." (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506; Code Civ. Proc., § 657, subd. 2.) "When a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. 'First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
Section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Italics added.)
The California Supreme Court has interpreted section 1150, subdivision (a) as drawing a " 'distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning process of the individual juror, which can be neither corroborated nor disproved.' " (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 413, disapproved on another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) The statute "limits impeachment evidence to 'proof of overt conduct, conditions, events, and statements. . . . This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent.' " (Hasson v. Ford Motor Co.,at p. 413, italics added.)
"[W]hen considering evidence regarding the jurors' deliberations, a trial court must take great care not to overstep the boundaries set forth in . . . section 1150. The statute may be violated not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by . . . section 1150." (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419, italics added.)
The rule of section 1150 "serves a number of important policy goals: It excludes unreliable proof of jurors' thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by losing counsel eager to discover defects in the jurors' attentive and deliberative mental processes. It reduces the risk of postverdict jury tampering. Finally, it assures the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors' thought processes." (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 414, fn. omitted.) " 'To require trial courts to review declarations reciting purported thought processes of jurors is certain to produce a deleterious effect upon the finality of jury verdicts.' " (Id. at p. 414, fn. 7.)
A trial court has broad discretion in determining whether juror affidavits are admissible, and its ruling will not be disturbed absent a clear abuse of discretion. (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.) The court abuses its discretion only when it exceeds the bounds of reason in light of all the circumstances. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 531.)
2
We find no abuse of discretion because the excluded juror statements relate to the mental processes and subjective reasoning of the jurors.
The declaration of J.R., the jury foreman, stated that an initial vote showed he and several other jurors intended to vote for O'Leary insofar as Awbrey was concerned, based on his retaliation against her by going to her former employer. Juror F.P., however, convinced the panel that under CACI No. 3000 (jury instruction 3000), the jury could not find for O'Leary unless it determined Awbrey violated her civil rights under the First, Fourth and Fourteenth Amendments. Thus, if the jury found Awbrey had consent to enter O'Leary's property, it could not find him guilty of retaliation or other constitutional violation.
J.R.'s declaration also stated the jurors "expressed their confusion about the law regarding 'consent' and we decided we needed further clarification on the issue as instructed," however, the court refused to give additional instruction. After that, "the majority of jurors expressed extreme confusion and could not decide the issue of 'consent' without further instruction on the law." Additionally, the declaration stated the jury was confused as to "what constituted harm to plaintiff. For example, there was no definition of 'harm' contained within the jury instructions leaving the jury to speculate as to what 'harm' meant in the context of civil rights violations." The jurors "never considered nor equated 'Nominal Damages' with 'harm.' "
The court instructed the jury as follows: "Ezekiel Awbrey claims that the search was reasonable and that a search warrant was not required. To succeed, [he] must prove both of the following: [¶] 1. That a person who controlled or reasonably appeared to have control of the area knowingly and voluntarily consented to the search; and [¶] 2. That the search was reasonable under the circumstances. [¶] In deciding whether the search was reasonable, you should consider, among other factors, the following: [¶] (a) The extent of the particular intrusion; [¶] (b) [T]he place in which the search was conducted; and [¶] (c) The manner in which the search was conducted."
Additionally, the J.R. declaration stated that because of F.P.'s interpretation of jury instruction 3000, the jury did not reach other instructions on the elements of the individual constitutional claims and damages. For the same reason the jurors ended their deliberations before "enter[ing] into meaningful jury deliberations for each of plaintiff's civil rights claims individually as applied to each named defendant and the jury did not reach deliberations as to defendants Baima and Hee." (Some capitalization omitted.)
The court instructed the jury as follows: "Pay careful attention to all the instructions that I give you. All the instructions are important because together they state the law that you will use in this case. You must consider all of the instructions together. [¶] After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict." (See CACI No. 5000.)
The declarations of jurors T.B., A.G. and J.B. contained similar statements. In his declaration F.P. did not accept sole blame, but rather stated "[w]e" misinterpreted jury instruction 3000 by finding "retaliation could not stand alone without finding [Awbrey] also engaged in an illegal search and seizure." The declaration stated the jurors were confused on legal issues.
Jury instruction 3000, however, was phrased in the disjunctive rather than the conjunctive. It provided in pertinent part: "Plaintiff Lindy O'Leary claims that a defendant violated her civil rights. To establish this claim, Plaintiff must prove all of the following: [¶] (1) That a defendant: [¶] (A) Deprived Plaintiff of due process of law; OR [¶] (B) Intentionally retaliated against Plaintiff; OR [¶] (C) Engaged in an illegal search and or/seizure." (Original capitalization.) Accordingly, the jury could have found against Awbrey on the retaliation claim independently of the search and seizure, or consent, issue. Likewise, the instruction did not preclude the jury from finding against Baima or Hee based on the single constitutional violation O'Leary alleged against them.
O'Leary asserts the jury was guilty of misconduct because F.P. conveyed an incorrect interpretation of jury instruction 3000 to the panel, and jurors relied on it to her disadvantage. O'Leary cites Andrews v. County of Orange (1982) 130 Cal.App.3d 944 (Andrews), disapproved on another ground in People v. Nesler (1997) 16 Cal.4th 561, 582, footnote 5, but it does not support her theory. Rather, in Andrews, the court found a juror committed misconduct by stating to another juror during a field trip, " 'This whole thing is a big farce,' " apparently meaning the trial, and by sharing with the panel information he obtained from an outside source and discussing a matter on which there was no evidence. (Andrews, supra at pp. 958-959.) The declarations here make no such accusations.
O'Leary also relies on In re Stankewitz (1985) 40 Cal.3d 391, for the proposition that a juror's misstatements of the law to other jurors "have been found sufficient to represent overt evidence of juror misconduct." In Stankewitz, however, a juror gave erroneous legal advice based on his experience as a police officer. Under that circumstance, the court held "the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a juror's reading of a novel during the taking of testimony [citation], or a juror's consultation with an outside attorney for advice on the law applicable to the case [citation]." (Id. at p. 398.) Here, there is no suggestion any juror relied on his or her profession or other outside experience.
Rather, the declarations here showed only that the jurors misunderstood the law. When juror declarations suggest " ' " 'deliberative error' in the jury's collective mental process — confusion, misunderstanding, and misinterpretation of the law," ' particularly regarding 'the way in which the jury interpreted and applied the instructions,' the affidavit or declaration is inadmissible. [Citation.] The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule." (People v. Sanchez, supra, 62 Cal.App.4th at p. 476, italics added.)
This court explained as follows in an analogous situation: "Ford asks us to vacate the order denying a new trial and direct the trial court to admit the juror declarations. However, on this record a new trial is not warranted. Moreover, further inquiry into the juror's asserted confusion and misunderstanding of relevant law would simply constitute improper probing of the jurors' subjective mental processes. [Citations.] [¶] The juror declarations proffered here do not meet the standards required by statute and case law. The declarations lack objective and verifiable incidents of juror misconduct. [Citations.] The declarations do not suggest any juror violated the court's instruction to follow the law by recounting his or her own outside experience on a question of law. [Citations.] The declarations do not describe overt acts, statements, or conduct showing the jury intentionally agreed to disregard applicable law and apply inapplicable law. [Citation.] Instead, the declarations at most suggest 'deliberative error' in the jury's collective mental process — confusion, misunderstanding, and misinterpretation of the law." (Ford v. Bennacka (1990) 226 Cal.App.3d 330, 336; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683 [declarations showing jurors used a definition of battery that conflicted with court's instruction were inadmissible].)
In sum, there is no merit to O'Leary's position that a verdict may be impeached by evidence of a juror's misstatement of the law to other jurors.
At oral argument, O'Leary emphasized that the juror declarations show the jury did not even consider her constitutional claims against Baima and Hee. O'Leary cited Andrews, supra, 130 Cal.App.3d 944, 959, in which the court held a "refusal to deliberate constitutes misconduct; the parties are entitled to the participation of all 12 jurors." There, a juror committed misconduct by sitting during deliberations in an anteroom adjacent to the jury room to avoid angry jurors. (Ibid.) O'Leary asserted that when the jury fails to consider a claim altogether, the particular reason for the failure, such as confusion on the law, is immaterial and thus impeachment evidence is admissible notwithstanding section 1150, subdivision (a).
Even if O'Leary's theory arguably has merit as a general proposition, we cannot fault the court for excluding juror statements pertaining to the lack of consideration of O'Leary's claims against Baima and Hee because they do not comport with verifiable facts. In the special verdict form the jury rendered separate verdicts for Awbrey, Baima and Hee, and the jury was polled in open court. Nine jurors indicated they voted for Awbrey, and the jurors unanimously indicated they voted for Baima and Hee, an outcome consistent with the weakness of O'Leary's Fourteenth Amendment claims against them. Under the circumstances, the court could reasonably reject the posttrial juror statements as unreliable. Even if the court did not rely on this reason, "we review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record." (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712.)
B
Alternatively, O'Leary contends the portions of the juror declarations the court admitted establish juror misconduct, and thus the court erred by denying her motion for a new trial. O'Leary, however, relies principally on statements the court should have excluded but for unexplained reasons admitted.
For instance, O'Leary cites paragraph 5 of J.R.'s declaration, which states that F.P. "vehemently argued to the jury panel that in order to find for plaintiff the jurors must find that each of plaintiff's civil rights were violated under sub-parts (A), (B) and (C) of element (1) of jury instruction 3000." Paragraph 5 of A.G.'s declaration contains a similar statement. O'Leary also cites paragraph 5 of T.B.'s declaration, but the court correctly excluded the statement there pertaining to F.P.'s interpretation of jury instruction 3000. The court should also have excluded that matter in J.R.'s and A.G.'s declarations as it pertains to F.P.'s subjective reasoning. The " 'subjective quality of one juror's reasoning is not purged [because] another juror heard and remembers the verbalization of that reasoning.' " (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683.) The same analysis applies to statements the court allowed pertaining to F.P.'s conveyance to other jurors of his belief that if Awbrey had consent to enter O'Leary's property he could not be liable for violating any of her constitutional rights.
Additionally, O'Leary cites the statement in J.B.'s declaration that "the jury foreman never told us he had all the jury instructions for our consideration and review. The jury instructions were never circulated among the jury panel with the exception of jury instruction 3000. As a result, the only instruction considered by the jury was jury instruction 3000." The same declaration states the "jury panel never deliberated as a whole, but rather, was segregated into two or three small groups." The declaration also states "we were informed that we had to reach a verdict by 3:30 p.m., as instructed by the Court, or return Monday for further deliberations. [Redacted sentence.] . . . I had family commitments and did not want to return on Monday, however, was more than willing to stay until midnight on Friday, if necessary, to further deliberate."
O'Leary cites no legal authority for the proposition that any of those statements shows jury misconduct. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) In any event, we are satisfied that the portions of the declarations that were actually admissible do not show misconduct or warrant a new trial. As to the jury's consideration of only jury instruction 3000, there is no suggestion the jury intentionally agreed to disregard applicable law. Rather, that resulted from its confusion and misunderstanding of the law, which may not impeach the verdict. "Justice is not served by tiresome replays of jury deliberations." (Ballard v. Uribe (1986) 41 Cal.3d 564, 575 (conc. opn. of Mosk, J.).) The court properly denied O'Leary's motion for a new trial.
II
Defense Counsel's Cross-Examination
O'Leary also claims she is entitled to a new trial because of "inaccurate statements of law" defense counsel, Karen Walter, made during cross-examination of O'Leary's expert witness on police practices, Jack Smith. O'Leary asserts that Walters misled the jury, and thus caused an irregularity in the proceedings within the meaning of Code of Civil Procedure section 657, subdivision 1.
Smith testified as follows: "What the law says concerning consent is that one person, if they are an owner of the property or have control of the property, they can give consent for somebody to enter the house or the property. However, if there's another person who also has control or owns the property says, 'No, wait a minute. I don't want a police officer or law enforcement officer to come in,' then the consent is denied."
The following exchange then took place between Walter and Smith:
"Q. Isn't it true . . . that the law since September of 2004, has changed to be what you just stated?
"A. I'm not sure what the date is, but it has been modified. It's modified all the time, but that's a current law.
"Q. Quite recently modified by the U.S. Supreme Court, isn't that correct?
"A. That's correct.
"Q. Prior to that, isn't it true that one person who gave consent, even though another person might not, if that first person resided at the property and had the authority to give consent, an officer is entitled to rely on that as consent, is that not correct?
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"THE WITNESS: . . . The answer to your question is no.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Q. My [sic] answer to my question is that in September of 2004, one person with authority couldn't give consent to enter a property?
"A. One person can give consent to enter a property they have control of. However, if there's another person on the property who also has control of it, they can deny consent."
O'Leary complains that Walter's questioning "indicated that Smith's testimony did notrepresent the law at the time O'Leary's property was entered." (Italics omitted.) O'Leary, however, waived appellate review of the issue by not objecting to Walter's questioning. O'Leary cites objections she made to certain hypothetical questions concerning consent, but those objections did not pertain to questions about a change in the law.
In any event, O'Leary cites no legal authority for the proposition that Walter's cross-examination was improper, or that Smith's opinion on the law of consent in force at the time of the incident was correct. The court instructed the jury that Awbrey was not required to have a search warrant to enter O'Leary's property if "a person who controlled or reasonably appeared to have control of the area knowingly and voluntarily consented to the search."
The instruction was taken from CACI No. 3005, which went into effect in September 2003 and has been continuously in effect since then. (CACI No. 3005 (2003-2004) p. 376; CACI No. 3005 (Feb. 2008 ed.) p. 388.) The instruction is based on Illinois v. Rodriquez (1990) 497 U.S. 177, 181, which explains: "The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. [Citation.] The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched [citation], or from a third party who possesses common authority over the premises [citation]." (Italics added; Sources and Authority Note to CACI No. 3005 (Feb. 2008 ed.) p. 388; 20 Cal.Jur.3d (2001) Crim. Law: Pretrial Proceedings, § 456, citing In re Scott K. (1979) 24 Cal.3d 395; see also People v. Rivera (2007) 41 Cal.4th 304, 311.)
In March 2006, in Georgia v. Randolph (2006) 547 U.S. 103, the Supreme Court held as a matter of first impression that the warrantless search of a home violated the defendant's Fourth Amendment rights, when the defendant's estranged wife was present and consented to the search, advising officers the defendant used drugs, but the defendant was present and expressly refused to allow police entry. (Id. at pp. 103, 106; see also People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1199, fn. 8.) This was not the law in September 2004 when Awbrey searched O'Leary's property, and thus Smith's testimony to the contrary was incorrect and Walter's questioning was proper.
Moreover, O'Leary's argument pertaining to Walter's cross-examination rests on the affect it had on the five jurors who gave declarations in support of the new trial motion. Those portions of the declarations however, are inadmissible as they pertain to the jurors' subjective mental processes in reaching the verdict.
O'Leary also complains that Walter gave Smith a hypothetical question based on Fish and Game Code section 1006, which provides: "The department may inspect the following: [¶] (a) All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage."
Walter asked Smith to assume that before he entered O'Leary's property he observed a hawk on the property, he knew the bird was a restricted species, and he had researched whether O'Leary had a permit for a hawk and found she did not. Based on those assumptions, Walter asked Smith, "Isn't it true that [Fish and Game Code] section 1006 . . . would permit him to go on the property?" Smith responded, "Well it would depend how he saw it. If it was in plain sight, there's a plain sight doctrine. If . . . you were standing on the sidewalk and you look and something is visible to you, then certainly, based upon what you've seen in plain sight, you would have cause to seize if, if you had the right to seize it, yes."
In her opening brief, however, O'Leary does not explain how the use of Fish and Game Code section 1006, subdivision (a) or the hypothetical question was improper. An appellant abandons an issue by failing to raise it in his or her opening brief. (California Recreation Industries v. Kierstead (1988) 199 Cal.App.3d 203, 205, fn. 1.) " ' "Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned." [Citation.]' " (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711.) The questioning appears proper as the statute allows the Department to inspect "all receptacles" where birds and other restricted species may be placed (Fish & Game Code, § 1006, subd. (a)), but we are not required to resolve the issue because of abandonment principles.
III
Substantial Evidence
Lastly, O'Leary challenges the sufficiency of the evidence to support the verdict in favor of Baima. "A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision . . ., unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." (Code Civ. Proc., § 657, subd. 7.)
O'Leary does not challenge the sufficiency of the evidence to support the verdicts for Awbrey and Hee.
"[W]here a trial court's factual finding is challenged on the ground there is no substantial evidence to sustain it, the power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court's determination. [Citation.] [¶] The appellate court reviews the evidence in the light most favorable to the respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial court's findings [citation]." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.)
The jury's verdict is supported by substantial evidence. O'Leary asserts that Baima violated her Fourteenth Amendment rights to due process. There is no evidence, however, that Baima had anything to do with Awbrey's decision to go to O'Leary's property on September 13, 2004, or with the incident there. In February 2000 Baima began working for the Department in Region 5 as a lieutenant and "rehabilitation coordinator." He retired on September 16, 2004, but his duties ended the preceding August.
O'Leary's theory is that Baima violated her due process rights by implementing a so-called "amnesty program." Baima testified that Hee, his superior, directed him "to start up a policy with Region 5 in getting the licensed rehabilitation facilities in line, to get them in compliance." Baima explained that when he began working at Region 5, its system for issuing permits was problematic since it had no listing of home care providers operating under the permits of rehabilitation facilities.
Baima also testified that some rehabilitators had animals they could not legally possess under their permits, and the purpose of the amnesty program was to allow them to turn in illegal animals without the threat of losing their permits, thereby allowing the Department to place them elsewhere and improve its image with the public. The Department "did not want to have people feel that we . . . were gestapo, going in and taking animals from everybody" and euthanizing them. The Department notified rehabilitation facilities of the amnesty program and advised them to pass the word along to persons operating their permits.
Baima testified the amnesty program began in November 2000, and it lasted approximately one year. O'Leary claims the program violated her due process rights because she received no notice of the dates of the program, particularly the end date, "though it clearly affected [her] due process rights." She claims "it was on the basis of that 'amnesty program' that [she] was not given a permit to possess her 19 non-releasable wild birds. [Citation.] Thereafter, because [she] had no permit, [Awbrey] seized the birds and Cotie."
O'Leary's theory is unclear as the record does not suggest the amnesty program precluded her from obtaining a permit for the birds. Rather, the evidence shows that in 2000 Sieberns asked O'Leary if she wanted to obtain permits to carry on the Wildlife Center's business, and she declined. She testified the Department told her she was not required to obtain a permit to possess the birds, but the Department disputed that and the jury could have found the Department more credible. Moreover, the amnesty program ended in late 2001, and the jury could have found that O'Leary's ostensible reliance on the program nearly three years later was unreasonable. Further, the program only applied to current permit holders and persons operating thereunder, and Sieberns's permits expired in 2000. Under all the circumstances, a new trial is unwarranted because it is not clear the jury would have reached a different decision.
DISPOSITION
The judgment is affirmed. The defendants are entitled to costs on appeal.
WE CONCUR: McDONALD, J., AARON, J.