Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD203926, Robert F. O'Neill, Judge. Affirmed.
NARES, J.
In December 2007 a jury convicted Derek K. Ancrum of five counts of second degree robbery (Pen. Code, § 211) and one count of attempted robbery (§§ 664, 211). The jury found true the allegations Ancrum personally used a firearm during the commission of two of the robberies (§ 12022.53, subd. (b)). Ancrum admitted two prior strike and serious felony convictions (§§ 667.5, 667, 1170.12), and two prior prison terms (§ 667.5, subd. (a)). The court sentenced Ancrum to an indeterminate term of 150 years to life, plus a determinate term of 28 years.
All further statutory references are to the Penal Code.
On appeal, Ancrum asserts the judgment must be reversed because a juror engaged in misconduct by (1) engaging in a conversation with a witness during trial; and (2) making a comment to fellow jurors while testimony was being given. We affirm.
The factual background is substantially abbreviated because it is only marginally relevant to the sole issue presented on this appeal: alleged juror misconduct.
In July 2006 Ancrum held up an AutoZone store in San Diego. He was carrying a gun, hiding his face with a black plastic bag, and wearing a baseball cap. Ancrum left behind the plastic bag.
In August 2006 Ancrum attempted to hold up a Shell gas station in Encinitas. He was unsuccessful because the person he demanded money from saw he was only carrying a pellet gun and grabbed the barrel of the gun, causing Ancrum to flee. He was wearing a plastic bag on his head, which he left at the gas station when he fled.
In October 2006 Ancrum held up a Wienerschnitzel restaurant in Imperial Beach. He had a rag covering his face and was holding a gun. A worker indentified Ancrum both at a photographic lineup and at trial.
In October 2006 Ancrum held up a Subway restaurant in National City. He was holding a gun and had a black bandana covering his face. A worker at the restaurant identified Ancrum at trial as the robber.
In October 2006 Ancrum held up a Carl's Jr. restaurant in Vista. He had a gun and his face was covered by a black bandana. A worker testified at trial that a sweater and shorts recovered from Ancrum's car were identical to the ones he wore during the robbery. Shoes found in Ancrum's hotel room were the same shoes he wore during the robbery. A bandana recovered from Ancrum's vehicle matched the one he wore during the robbery.
In December 2006 Ancrum robbed a Taco Bell restaurant in Oceanside. He was wearing a blue sweatshirt and had a blue and white bandana masking his face. He was holding what appeared to be a pellet gun. A worker at the restaurant identified Ancrum out of a live lineup. A pellet gun recovered from Ancrum's car looked like the one he used in the robbery. Sweatpants found in Ancrum's car looked like those worn during the robbery.
San Diego Police Detective Ramon Valentin was assigned to investigate the Chevron and AutoZone robberies. He identified Ancrum as a possible suspect. Ancrum's identity was determined based upon a review of videotapes of some of the robberies, DNA evidence, and a witness's identification of a partial license plate number on the vehicle he used to flee from one of the robberies. Detective Valentin obtained an arrest warrant for Ancrum and a search warrant for Ancrum's residence. Ancrum was arrested at a hotel room in Colton. Police recovered a black pellet gun from Ancrum's vehicle, as well as clothing he wore during the robberies. They found over $500 in one- and five-dollar bills in two plastic bags in the closet of Ancrum's hotel room. A DNA swab from Ancrum confirmed his DNA was on the bags left at the AutoZone and Shell robberies.
Ancrum testified in his own defense. He denied committing any of the robberies. The money found in his hotel room was left over winnings from playing poker at a casino. He did not put the pellet gun in the car. It was his wife's car, and he rarely drove it.
DISCUSSION
Ancrum asserts that the judgment must be reversed and he be granted a new trial because of comments a juror made to a prosecution witness and that same juror's comment to fellow jurors during the trial. This contention is unavailing.
A. Background
Prior to trial, the jury was admonished that they were not to talk about the case or any of the people involved or any subject involved in the case, including each other. They were also instructed not to speak with any party, witness, or lawyer involved in the trial.
The following evidence was presented at the hearing on Ancrum's claim of juror misconduct:
On December 5, 2007, attorney Ricardo Garcia of the Alternate Public Defender's Office was a spectator in the courtroom during the cross-examination of Detective Valentin. When Ancrum's counsel requested a sidebar conference, the jurors and Detective Valentin were excused from the courtroom. Shortly after Detective Valentin left the courtroom, Garcia heard conversation and laughter in the hallway.
Garcia looked out the window on the courtroom door. Detective Valentin had his back to the door. Two or three jurors were standing near him. It appeared to Garcia that Detective Valentin was engaged in conversation with the jurors, while additional jurors, seated nearby, looked at the detective. Garcia interrupted the court proceedings and informed the court of his observations.
Juror No. 2 recalled someone telling Detective Valentin that he was "in the hot seat." Detective Valentin acknowledged the person and moved on. Juror No. 3 recalled that it was Juror No. 8 who made the comment. Juror No. 3 recalled Detective Valentin responding something to the effect of, "No comment. This happens." Juror No. 3 testified that a short conversation followed the initial exchange. At least two other jurors were listening to the conversation. One of these jurors, Juror No. 7, told Juror No. 8 not to talk to Detective Valentin. Juror No. 8 responded that she did not want to know about the case. Rather, she only wanted to know "what it is like."
Juror No. 7 heard Juror No. 8 say, "Oh, you're on the hot seat." Detective Valentin responded, "Yes, that happens sometimes." Juror No. 7 told her not to talk to Detective Valentin. Juror No. 7 also recalled that during court proceedings the next day, Juror No. 8 commented to her that the prosecutor looked upset.
Juror No. 8 admitted that she said to Detective Valentin something to the effect of, "You are on the hot seat." She recalled that he replied, "I'm used to that." She then told him, "I guess this is typical." Detective Valentin agreed that it was, smiled, and walked down the hall. Juror No. 8 did not recall talking to her fellow jurors while testimony was being given.
Juror No. 9 heard Juror No. 8 say to Detective Valentin, "So you are in the hot seat, huh?" Detective Valentin replied, "[K]ind of comes with the territory." Juror No. 9 then commented that she was sure he was used to it. Another juror told Juror No. 8 to "shut up" because they were not supposed to talk to witnesses. Juror No. 9 also heard Juror No 8 say, during the cross-examination of Detective Valentin, something to the effect that they would be there forever.
Juror No. 10 heard someone tell Detective Valentin he was on the hot seat. He replied, "It is just part of the drill."
Alternate Juror No. 2 testified that when Detective Valentin stepped into the hallway, he made a comment about being in the hot seat. Alternate Juror No. 3 heard Detective Valentin say, "That's the way the game is played."
The remaining jurors did not hear or see any contact between Juror No. 8 and Detective Valentin. All jurors and alternate jurors stated they could be fair and impartial.
After the evidentiary hearing, Ancrum made a motion to discharge Juror No. 8, which the court denied. In doing so, the court found her statements to the other jurors did not indicate any prejudice or bias. The court also noted that Detective Valentin had not discussed the evidence with jurors. The court found that "[t]here is no indication that Juror No. 8 has formed or expressed any opinions, discussed any aspects of the case, [or] any of the evidence with anyone."
Before testimony resumed, the court admonished the jurors not to converse with witnesses, to judge all witnesses and their testimony by the same standards, to disregard anything they might overhear said by anyone involved in the case, and to decide the case based only on the evidence.
Following the jury's verdict, Ancrum brought a motion for new trial on the grounds of juror misconduct, relying on the evidence presented at the juror misconduct hearing at trial. The court denied the motion.
B. Standard of Review
In reviewing the court's finding that Juror No. 8's conduct did not prejudice Ancrum, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 582.) Thus we must independently determine whether, from the nature of Juror No. 8's misconduct and all the surrounding circumstances, there is a substantial likelihood she prejudged the case. (Id. at pp. 582-583.)
C. Analysis
There is no dispute that Juror No. 8 committed misconduct in speaking to Detective Valentin. (In re Hitchings (1993) 6 Cal.4th 97, 119; see also People v. Pierce (1979) 24 Cal.3d 199, 207 (Pierce); In re Hamilton (1999) 20 Cal.4th 273, 294.)
Such unauthorized communication usually raises a rebuttable presumption of prejudice. (In re Hitchings, supra, 6 Cal.4th at p. 119; In re Hamilton, supra, 20 Cal.4th at p. 295.) However, no presumption of prejudice arises where the subject matter of the communication did not involve the matter pending before the jury, i.e., the guilt or innocence of the defendant. (People v. Cobb (1955) 45 Cal.2d 158, 161; People v. Chavez (1991) 231 Cal.App.3d 1471, 1485.)
In this case, the conversation between Juror No. 8 and Detective Valentin did not involve the guilt or innocence of the accused, or the evidence in the case, but only consisted of the brief, innocuous statement, "You are in the hot seat." As such, no presumption of prejudice arises. Moreover, even if a presumption of prejudice did arise, it has been effectively rebutted by the brief, innocuous nature of the comment.
The "presumption of prejudice ' "may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct]...." ' [Citations.]" (In re Hitchings, supra, 6 Cal.4th at p. 119.) "The standard is a pragmatic one, mindful of the 'day- to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts [citations]. It is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.] Moreover, the jury is a 'fundamentally human' institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] '[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.' [ Citation.]" (In re Hamilton, supra, 20 Cal.4th at p. 296.)
Juror No. 8 did not attempt to discuss the evidence, or the issue of Ancrum's guilt or innocence. Her comment, as the court noted, did not indicate any bias or prejudice. Thus, the evidentiary hearing conducted by the court dispelled any presumption of prejudice that may have arisen.
Ancrum asserts Juror No. 8's communication was similar to the conduct of a juror in Pierce, supra, 24 Cal.3d 199. However, that case is easily distinguishable. In Pierce, the juror asked a prosecution witness, who was a police officer, neighbor and personal friend of the juror, about photographic and fingerprint evidence and the prosecutor's tactics. (Id. at pp. 205-206.) The court found that the discussion was tantamount to the introduction of expert testimony, which the defendant did not have the chance to rebut. (Id. at p. 209.) Here, by contrast, the discussion was brief, trivial, not about evidence or tactics, and, as discussed, ante, did not did not evidence bias.
Likewise, the alleged comment by Juror No. 8 to fellow jurors while testimony was being given does not require a reversal. In People v. Majors (1998) 18 Cal.4th 385, several jurors discussed the case six or seven times during the course of trial. The trial court denied the defendant's request for a new trial, and the California Supreme Court upheld that ruling. In doing so, our high court noted that " '[t]he law does not demand that the jury sit with the muteness of the Sph[i]nx, and when jurors are observed to be talking among themselves it will not be presumed that the act involves impropriety, but in order to predicate misconduct of the fact it must be made to appear that the conversation had improper reference to the evidence, or the merits of the case.' [Citation.]" (Id. at p. 425.) In this case Juror No. 8's comments made during trial also did not constitute an improper reference to the evidence or the merits of the case.
In sum, the court did not err in denying Ancrum's motion for new trial or refusing to discharge Juror No. 8.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.