Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA291808, Teri Schwartz, Judge.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Armando Abundis was convicted of assaulting and causing the death of Sarah Chavez, a child under the age of eight years (Pen. Code, § 273ab), as well as involuntary manslaughter (§ 192, subd. (b)) and child abuse under circumstances likely to produce great bodily harm and death (§ 273a, subd. (a)). On appeal, he contends that the evidence is insufficient to establish that he committed assault; that the verdicts were inconsistent; and that the trial court committed reversible error when it denied his motion for a new trial based on juror misconduct without adequately inquiring into the alleged misconduct. We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Two-year-old Sarah Chavez died on the morning of October 11, 2005, in the apartment where she lived with her great-aunt, Frances Abundis (Frances), and Frances’s husband, Abundis. Abundis was charged with assault on a child, causing death; murder (§ 187, subd. (a)); and child abuse under circumstances likely to produce great bodily harm and death.
Frances testified that the day before Sarah died she had taken Sarah to Home Depot, and that she was acting normally at that time. Video from the Home Depot showed Sarah walking, playing with a merchandise rack, picking her legs up, and kicking the shopping cart. Frances took Sarah home and left her with Abundis when she went to pick up her son from school. Frances and her son A.J. stopped for food before returning home around 2:00 p.m. Frances left the apartment again at approximately 3:00 p.m. to take Abundis’s mother to an appointment, leaving Sarah and A.J. with Abundis.
When Frances arrived home shortly before 7:00 p.m., Sarah’s arm was hanging abnormally, turned inwards and dangling. Frances asked what had happened, and Sarah said nothing had happened. Frances asked Abundis what had happened to Sarah, and Abundis replied that she could have fallen. Frances asked again what had happened, and Abundis answered that he did not know.
Frances took Sarah to a “sabadora, ” which she defined as being similar to a chiropractor. She feared that Sarah would be taken out of her custody if she took her to the hospital, for Sarah had previously been in the dependency system. The sabadora lifted Sarah’s arm up and “the whole arm squeaked” and cracked. She told Frances that she needed to take Sarah to a hospital for a “bone doctor.” During the sabadora’s examination, Sarah did not cry, and she did not speak; she was quiet, and Frances thought that she was acting “funny.” The sabadora observed that Sarah neither cried nor winced; she “just was lying there. And she opened her eyes and it looked like she wasn’t there. She just looked up. That’s all.”
Frances took Sarah to the hospital. On the way, Sarah vomited. Frances carried her into the hospital, though Sarah wanted to walk. Surveillance video of the hospital room showed Frances, Sarah, and Frances’s mother in the hospital waiting room. At one point, Sarah got up for water, then sat back down. Minutes later, she vomited. Sarah sat with her feet and legs curled up. While waiting, Frances wrapped Sarah in a sheet because she was cold. Frances described Sarah as tired, but not sleeping, “just sitting there.” Frances carried Sarah in for vital signs measurement and then back to the waiting room. Sarah did not complain of pain while they waited.
The video was a time lapse video. The officer who testified about the video estimated that it took Sarah approximately 20 full seconds to get back into her chair after she got the drink of water, of which 15 seconds could not be seen due to the time lapse nature of the recording.
An emergency room nurse who saw Sarah observed her elbow injury and that her lips were dry. She thought that perhaps Sarah was mentally delayed because Sarah was sleepy and quiet at all times. The nurse did a general physical examination that included palpating Sarah’s abdomen. The nurse detected nothing abnormal about Sarah’s abdomen, nor did Sarah express discomfort to the nurse.
Frances told the nurse and doctor that Sarah had fallen. The doctor ordered an x ray of Sarah’s arm, and it was determined that Sarah had a fracture requiring a cast. Sarah was also given 300 cubic centimeters of saline solution intravenously. A lab technician tried to get a blood sample from Sarah, but was unsuccessful. The nurse asked for a urine sample. Sarah refused and said she wanted to go home. Frances took Sarah home against medical advice because she wanted to go home and she was tired. Sarah walked part of the way to the car.
Frances and Sarah arrived home very late, at approximately 1:00 a.m. Frances carried her partway, but told her she would have to climb the steps to the door. On the way in, Sarah said she wanted her daddy, meaning Abundis. Frances put Sarah to bed. Sarah wanted water, but Frances would not give her any because she was concerned that Sarah would wet the bed. Sarah had not urinated since the time that they had left for the sabadora’s house.
Frances went to sleep but woke up to Sarah calling, which was unusual for her. Sarah wanted to watch television but Frances told her no. Sarah called again some time around 3:00 or 4:00 a.m., and Abundis went to her room, then returned. They fell asleep. Frances woke up at about 6:55 a.m., and went to check on Sarah. Sarah, lying on her broken arm, was unresponsive and stiff. She had vomited in her bed. Frances screamed for Abundis and began to shake Sarah to try to wake her. She tried to give Sarah cardiopulmonary resuscitation by pushing on her chest, approximately above her waist and below her ribs. It did not work, so Frances called 911.
When the police arrived, Abundis was waiting at the bottom of the apartment building stairs. He appeared calm, not crying or screaming, and he told the police that Sarah was upstairs and was not breathing. Frances was kneeling next to Sarah’s bed, crying and screaming. Sarah’s body was warm but the officer detected no pulse; he was preparing to begin cardiopulmonary resuscitation when firefighters and paramedics arrived. They rushed Sarah to the hospital. The first responders were unable to revive Sarah. Sarah was pronounced dead at 7:30 a.m.
Photographs taken soon after her death demonstrated that Sarah bore lacerations and bruises around both ears, a black left eye, a swollen and disfigured finger on her left hand, her right arm in a soft case, and marks on her legs. The lower portions of her body were discolored and red.
Frances was interviewed by the police at the hospital, then at the police station. Right before Frances was first interviewed at the police station, Abundis hugged her and told her not to say that he had stayed with the kids by himself. She told them that Sarah had fallen because she was afraid that her son would be taken away from her. She also failed to disclose the visit to the sabadora.
Frances and Abundis were both charged with murder and child abuse leading to death. After 16 months, Frances agreed to a plea deal in which she pleaded guilty to being an accessory after the fact to child abuse and to felony possession of marijuana; she was released from custody in exchange for her truthful testimony.
Dr. David Whiteman, the medical examiner who performed the autopsy on Sarah, concluded that the death was a homicide and that she died of multiple traumatic injuries that were intentionally inflicted a number of hours before she died. Sarah’s abdomen was distended and round, with subcutaneous hemorrhages on the right side that extended down into the muscles. More subcutaneous hemorrhages were found on the left side of the abdomen. These hemorrhages were inflicted before death. Sarah had suffered intestinal injuries: her jejunum was severed, ragged, and hemorrhagic. The hemorrhages established that the injury occurred while she was still alive, and the raggedness of the separation meant that the injury was traumatic in nature. The medical examiner explained that the tear to the small intestine would have prevented the absorption of digested food and would have released bacteria belonging in the intestines into the peritoneal cavity, resulting in inflammation (peritonitis) and infection (sepsis), both of which were found in Sarah’s body. Peritonitis generally takes from 30 minutes to hours to develop. A person who is developing peritonitis is likely to become extremely thirsty.
Sarah’s liver was torn in two places-a one-inch tear to the left lobe and a one and one-half inch tear to the right lobe-and it had also sustained multiple hemorrhages. The falciform ligament that holds the liver in place was torn, ragged, and hemorrhagic. The liver was swollen and contained dead tissues from abdominal trauma. The liver tissues would have taken from minutes to possibly hours to die.
Sarah’s lesser omentum-a sheet of fatty tissue that protects the stomach area-was torn and hemorrhaged. Her pancreas was hemorrhaged, and the areas around her kidneys and adrenal glands were also hemorrhaged. The medical examiner also found approximately 400 cubic centimeters of watery brown liquid in Sarah’s peritoneal cavity. Sarah also had a broken arm and a broken ring finger. The finger break showed some signs of healing, but the broken arm did not.
The medical examiner concluded that the injuries that Sarah sustained would have been caused by multiple blows of a force that could not have been inflicted by a child. Based on her injuries, there may have been five separate strikes. These blows, inflicted by an adult with punch-like force, caused her death. Sarah’s injuries could not have been caused by a fall down steps. Most likely the injuries were inflicted in the same time period. The medical examiner believed that a person who had sustained the injuries that Sarah had sustained would not walk and act in a manner suggesting that nothing was wrong, but that if there were a reason for the injured person to walk, such as being extremely thirst or wanting something badly, it might be possible for the person to walk.
Pediatrician and child abuse expert Dr. Carol Berkowitz testified as an expert witness. Berkowitz opined that a person of Sarah’s age would have been able to move about with a severed jejunum, but slowly, perhaps holding her stomach or trying not to move much. The pain would be comparable to suffering a perforated appendix, and people with perforated appendices walk slowly and carefully to minimize the pain. Berkowitz would expect that palpating the abdomen would cause the subject to complain or to tense their abdominal muscles to protect against the pressure. Elbow fractures like the one Sarah had suffered are common in children and would not alert a doctor to child abuse without other signs. They are, however, painful, and she would ordinarily expect a child to cry out from the pain. A chronically abused child might not react to the pain for a number of reasons: dissociation; pain somewhere else in the body that distracts from the pain in the examined part; the desire to remain still because of the pain caused by movement; or shock.
Berkowitz testified that an elevated heart rate, such as Sarah’s at the hospital, can be a sign of impending shock, and that dehydration may contribute to shock. Someone in shock may appear “out of it” or disoriented, not interacting or aware of what is happening. It would be consistent with shock if a person with an elbow fracture such as Sarah’s remained staring with a blank look while the elbow was being manipulated. For a two-year-old to remain still, not jumping, moving, or crying out, while being poked with an I.V. needle would also be consistent with shock. Berkowitz believed Sarah may have been in compensated shock when she was at the emergency room, based on her elevated heart rate and her apparently altered mental status.
Berkowitz testified that a person with a severed jejunum would become dehydrated and would feel thirsty, but would likely vomit any liquids consumed. Receiving saline intravenously and reducing an elevated pulse rate would make the person feel better and might make him or her feel more able to walk.
Sarah did not have a fever at the emergency room, which Berkowitz would have expected if she had suffered the injuries four hours before being examined, although the absence of fever does not preclude the injuries having been inflicted prior to her visit to the hospital. Sarah’s behavior in wanting water in the night “would be consistent with her having had the abdominal injury at the time she was seen with the arm fracture, because that thirst would represent-the thirst and the elevated heart [rate] would represent that she was dehydrated third spacing, and that the third spacing lo[]sing fluid into her abdomen and that she already had that tear in her intestine. So it would be completely consistent with a time frame such that she had the abdomen injury already at the time when she was seen at the hospital.” The repeated vomiting would further be consistent with having already sustained the internal injuries, as would the fact that the child did not urinate even after receiving intravenous fluids. Berkowitz viewed the video of Sarah in the hospital waiting room and saw “a little girl kind of crunched over in a chair, holding fairly still.” Had Sarah been running around or moving extensively, Berkowitz would have concluded that she had not yet suffered her fatal injuries; but Sarah’s behavior did not change her opinion that she could already have been suffering from the internal injuries at the time of the video.
Berkowitz acknowledged that the doctor at the hospital reported normal bowel sounds when Sarah visited the hospital, and observed that if it was in fact true that Sarah had already suffered the internal injuries the doctor would have had to have misinterpreted the sounds. She testified that the slushing noises that would have been present with internal injuries like Sarah’s may sound like normal bowel sounds if the physician presses the stethoscope down while listening. Berkowitz also recognized that a capillary refill test performed on Sarah by pinching her skin was normal; the test was performed after Sarah had received the intravenous fluids and she would expect the refill test to be normal at that time. Moreover, had Sarah been normal or only slightly dehydrated, the saline solution should have caused an increased production of urine. Sarah’s bladder was dry at autopsy.
The defense called pediatrician Dr. Michael Wineraub as a witness. Wineraub believed that Sarah had suffered abdominal injuries on more than one occasion, but that the massive abdominal trauma that caused Sarah’s death was inflicted after she left the hospital emergency room, not before. He concluded that the vomiting did not indicate that the massive injuries had already occurred: although Sarah’s vomiting was consistent with an abdominal injury occurring before the hospital, it could also be seen in a child in a state of shock with a broken arm; and there were indications in Sarah’s medical records that she vomited when she was upset and angry. Sarah’s dehydration did tend to support the theory that her serious injuries occurred before the hospital visit. Her listlessness would also support that theory, but that it could also be due to her broken arm. The fact that Sarah urinated before leaving her home is inconsistent with dehydration.
Wineraub believed that it was likely that Sarah was injured after her hospital visit because she did not have a fever; not seeing at least a low grade fever after such an injury is unusual, although it could happen. But Wineraub would have expected that if a fever did not accompany injuries so extreme, it would be because the child was so severely ill that her body could not mount a fever-and a child so ill would look ill in other ways, such as being pallid, having poor circulation and poor oxygenation of tissues. Sarah’s capillary refill tests at the hospital were normal, so her blood supply was in the normal range and she was not dehydrated. The normal capillary refill makes it less likely that Sarah had massive abdominal injuries at that time. Wineraub agreed that the saline solution Sarah received might have temporarily improved her condition if she had been dehydrated, but over the time she was at the hospital he would have expected to see progressive worsening of her physical condition. Wineraub testified that the observations of the medical staff supported his theory that Sarah was not yet injured at the hospital: Sarah was observed to have normal bowel sounds, no gastrointestinal tenderness or masses, her abdomen was not distended, and she appeared to be walking normally.
Wineraub testified that he would not have expected Sarah to be able to walk out of the hospital on her own if she had been injured at 6:00 p.m. He would also expect her to have complained of pain if she had already received the injury and to cause her to have shallow or more rapid breathing, but this was not noted at the hospital. He had never come across a case in the medical literature where a child suffering injuries like Sarah’s had not complained of pain. He had also viewed the video from the hospital waiting room, and he did not believe from Sarah’s movements that she was injured already.
Wineraub believed that Sarah’s injuries were inflicted closer in time to her death than Berkowitz did. He testified that Sarah’s peritoneal lining would not have looked as shiny as it had at autopsy if Sarah had been injured earlier. He would have expected to see more bleeding in the abdominal cavity if Sarah’s jejunum had been severed 12 hours before her death.
The medical examiner subsequently testified that he should not have included the phrase “smooth and shiny” in his report, because the peritoneal linings were actually slightly dull.
Abundis was convicted of assault on a child under eight years of age, causing death; of involuntary manslaughter; and of child abuse under circumstances likely to produce great bodily harm and death. He was sentenced to 25 years to life in prison. Abundis appeals.
DISCUSSION
I. Sufficiency of the Evidence
Abundis argues that the evidence was insufficient to support his conviction for assault on a child, causing death. He characterizes the prosecution’s case against him as resting on “three questionable evidentiary premises”-conversations between Abundis and Frances, Abundis’s having been alone with Sarah for several hours before she died; and Berkowitz’s opinion that the abdominal injuries occurred before the hospital visit. Abundis then devotes a paragraph to each of the first two premises, arguing that his statements in custody to Frances did not include any confessions to harming the child and that the fact that he was alone with Sarah did not itself mean anything. Abundis is correct that standing alone, the first two alleged premises are not sufficient to establish his guilt. It is really the third category of evidence, Berkowitz’s testimony, when taken in conjunction with the evidence that Sarah was in Abundis’s custody at the time the injuries would have been inflicted, that supports the conviction and that Abundis challenges here.
“When a jury’s verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury.” (People v. Brown (1984) 150 Cal.App.3d 968, 970.) We review the record in the light most favorable to the judgment and determine whether it discloses substantial evidence such that a rational trier of fact could find Abundis guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We conclude that the evidence is sufficient to sustain Abundis’s conviction.
Abundis argues that Berkowitz’s conclusion that Sarah was assaulted before she went to the emergency room is “inherently implausible and contradicted by the available medical evidence.” Specifically, he asserts that it is “virtually impossible” that a child that had suffered the injuries inflicted on Sarah would not have cried out when her stomach was palpated or complain of abdominal pains, would not have a fever, would not bleed, and would be able to move under her own power. He characterizes Berkowitz’s testimony as to why these factors were absent as “not only strained but completely incredible.” He contends that her testimony leaves the impression that Berkowitz drew her conclusions to be consistent with the prosecution’s theory of the case.
On appeal, we may not reject testimony believed by the jury unless it is physically impossible or obviously false. (People v. Friend (2009) 47 Cal.4th 1, 41.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) We have reviewed the evidence presented in the trial court and find nothing physically impossible or obviously false in Berkowitz’s testimony. Berkowitz testified to a number of reasons why a child who had suffered Sarah’s injuries might not have complained of pain, and her conclusion that Sarah was likely in shock and was in an altered mental state at the time of the hospital visit was supported by the testimony of the sabadora, the emergency room nurse, and Frances, as well as by the videotape of the hospital waiting room, where Sarah appears to have been still for most of the waiting period except for some foot movements and a few steps to get water-water that she promptly vomited. Berkowitz acknowledged that a fever would have been expected, but both she and the defense expert agreed that it was possible to suffer an injury like this without having a fever. As far as Abundis’s assertion of no bleeding, the 400 cubic centimeters of liquid that filled Sarah’s abdominal cavity were not analyzed to determine how much of that brown fluid was blood. With respect to the contention that Sarah was moving under her own power, there was little evidence of Sarah moving under her own power for any sustained period of time after the time the injury would have been inflicted, and the medical examiner also believed that although a person who had sustained the injuries that Sarah had sustained would not walk and act normally, if there were a reason for the injured person to walk, such as extreme thirst or wanting something badly, it might be possible for the person to walk. Berkowitz, too, testified that after receiving intravenous saline, a child with Sarah’s injuries might feel better and more able to walk. As far as Abundis’s conclusory arguments that Berkowitz’s testimony was strained and incredible, and apparently tailored to the prosecution’s theory, these arguments are more an improper invitation to reweigh this witness’s credibility and less a demonstration that the testimony was so obviously false or physically impossible so as to be rejected by this court on appeal. Abundis’s argument merely exposes a conflict in the evidence that was resolved against him by the jury at trial. That is the jury’s role. (People v. Friend, supra, 47 Cal.4th at p. 41.)
Finally, he contends that it is “at least []equally plausible” that Frances inflicted the injuries here. This was the defense theory at trial, and the defense produced an expert witness who testified that he believed that the injuries had not been inflicted until after the hospital visit, thereby placing the time of injury to a period when both Frances and Abundis were with Sarah. The jury did not believe this account, and substantial evidence supports the jury’s verdict. When the evidence reasonably justifies the jury’s finding, reversal is not warranted even if the record could have supported a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Although Abundis structures his argument to parallel People v. Blakeslee (1969) 2 Cal.App.3d 831, with the hope of a similar outcome, the cases may only be equated if Berkowitz’s testimony is disregarded in its entirety: Only then could it be said that the conviction here rests on such unconvincing evidence as mere presence and a false story, as the conviction was in Blakeslee. What we have here is a qualified expert witness who opined that Sarah’s injuries had been inflicted the day before her death after a morning outing but prior to her hospital visit-which, in conjunction with the other evidence, placed the infliction of the injuries during the period when she was with one adult: Abundis. Unlike the evidence in Blakeslee, the evidence here reasonably inspires confidence in defendant’s guilt, and it is sufficient to constitute proof beyond a reasonable doubt.
II. Consistency of the Verdicts
Abundis argues that the verdicts for assault resulting in the death of a child under the age of eight and involuntary manslaughter are fatally inconsistent because the verdict of involuntary manslaughter “necessarily negated elements of the fatal child abuse offense.” Abundis’s argument depends entirely on the characterization of section 273ab, the statute concerning assault resulting in the death of a child under the age of eight, as a “murder statute, ” a statement made in dicta in People v. Preller (1997) 54 Cal.App.4th 93 (Preller). Abundis argues that because section 273ab is a “murder” statute, and the jury expressly found Abundis not guilty of murder, that acquittal and the accompanying involuntary manslaughter conviction preclude the 273ab conviction.
This argument was rejected in People v. Albritton (1998) 67 Cal.App.4th 647, 654-656, in which the court observed that the “murder statute” language in Preller, supra, 54 Cal.App.4th 93 was not a statement of law necessary to the holding of the case but was merely a general observation. (Albritton, at p. 655.) Moreover, the language in Preller is, as the Albritton court wrote, “at best imprecise, ” because section 273ab does not include malice aforethought, an element of murder, as an element of the offense of child abuse resulting in death of a child under the age of eight years. (Id. at p. 656.) Abundis urges us to reject Albritton, but we agree with the Albritton court that Preller does not demonstrate that the verdicts were inconsistent. One court’s reference in dicta to section 273ab being a “murder statute” does not change the elements of that offense or somehow import into it any of the legal elements of murder, and Abundis has not demonstrated that the jury’s determination that Abundis lacked malice aforethought is at all inconsistent with a verdict that he committed child abuse resulting in death of a child under the age of eight years.
III. Alleged Juror Misconduct
Abundis moved for a new trial based, inter alia, on alleged juror misconduct. An alternate juror provided a declaration asserting that in several conversations with Juror No. 1 she observed that “he reeked of alcohol and was red faced.” He “tended to ramble and appeared ‘giddy’.” Based on her experience, she believed that he was under the influence of alcohol on several days during Abundis’s trial. At the hearing on the new trial motion, Abundis clarified that his motion should have been entitled a motion for an evidentiary hearing and for the release of confidential information regarding the juror. He sought an evidentiary hearing to determine the level of intoxication and its effect on the juror’s ability to deliberate. The court denied the motion. We review the ruling for an abuse of discretion. (People v. Hayes (1999) 21 Cal.4th 1211, 1256 [denial of a new trial motion without a hearing]; People v. Avila (2006) 38 Cal.4th 491, 604 [motion for evidentiary hearing and release of identifying information].)
We find no abuse of discretion here. The trial court found the alternate juror’s declaration to be supposition and speculation. It noted that the trial was lengthy and that the court and staff had contact with the jurors but had observed nothing amiss. The court said, “I think, if we had a juror that was reeking of alcohol and red faced and giddy, someone else would have noticed it and brought it to my attention; and no one did.” The court noted that the alternate juror’s contact with the jurors was limited and that she was not present during deliberations. The court found the alternate juror’s declaration incredible and concluded that the showing was not sufficient to merit the release of identifying information or an evidentiary hearing.
Abundis has not established any abuse of discretion here. Trial courts have discretion to fashion procedures to investigate an allegation of misconduct. (People v. Seaton (2001) 26 Cal.4th 598, 676.) As Abundis notes, courts have the discretion to hold evidentiary hearings to investigate possible misconduct, but a defendant is not entitled to a hearing as a matter of right. (People v. Davis (2009) 46 Cal.4th 539, 625 (Davis).) An evidentiary hearing is warranted only when the defense adduces evidence demonstrating a strong possibility that prejudicial misconduct has occurred, and the court concludes a hearing is necessary to resolve material, disputed issues of fact. (Ibid.)
Here, there was no strong possibility of prejudicial misconduct to require a hearing. The court found the alternate juror’s declaration to be not credible, and it believed her observations were limited and her statements largely speculative. Over the numerous weeks the trial lasted, the court had not observed any juror to be red-faced or to smell of alcohol, and the court had received no other reports of any such conduct by the juror in question. Even if the alternate juror was correct that the juror in question had consumed alcohol, the court in its discretion could conclude that there was no reasonable ground to suspect that the juror’s consumption of alcohol actually impaired the juror’s capacity to competently perform his duties. (People v. Allen (1986) 42 Cal.3d 1222, 1266.) In the absence of evidence demonstrating a strong possibility that prejudicial misconduct had occurred (Davis, supra, 46 Cal.4th at p. 625), the trial court did not abuse its discretion in refusing to order an evidentiary hearing.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.