Opinion
B186186
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. EMON BARNES, Defendant and Appellant.
Nana Gyamfi and Rebecca Henry for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
This case returns to us after the trial court reinstated a judgment convicting defendant Emon Barnes of two counts of attempted murder and one count of assault with a semi-automatic firearm. The jury also found a number of sentence enhancements, including his commission of a felony for the benefit of or in association with a criminal street gang. In his first appeal, defendant raised, inter alia, the issue of juror misconduct. We vacated the judgment and remanded the case for the trial court to consider possible juror misconduct. The trial court held an evidentiary hearing and found no juror misconduct. Defendant contends the court abused its discretion in the manner in which it conducted the hearing. We affirm the judgment.
Penal Code sections 187, subdivision (a), 664, 245, subdivision (b), 186.22, subdivision (b)(1).
Defendant also filed a petition for writ of habeas corpus, alleging some overlapping contentions in his appeal, which we ordered heard together with his appeal. We denied the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of defendants offenses are fully set forth in our unpublished opinion, and we need not repeat them at length. In brief, based on two separate shootings defendant was tried by jury on seven felony counts including two gang-related attempted murders and aggravated assaults. The jury convicted defendant of the three counts arising from the August 2, 2001 shooting and acquitted him of the four counts arising from the August 17, 2001 shooting. The jurors were polled; they collectively and individually confirmed the verdicts.
People v. Barnes and In re Emon Barnes (Oct. 25, 2004, B167122, B170671) [nonpub.opn.] at pages 2-4.
Defendant moved for a new trial, in part, on the ground of juror misconduct. In support of this motion trial counsel submitted the December 30, 2002 declaration of juror Claudelle West, in which she stated: "From the onset of the trial, even before defendant presented his case, certain jurors openly stated to other members of the jury that the defendant was guilty. They further discussed . . . his failure to testify . . . and claimed he must be guilty because he did not testify." The People did not present any declarations countering these charges and did not respond to defendants claim of juror misconduct in their points and authorities opposing the motion for a new trial. The trial court denied the motion.
In defendants first appeal, this court vacated the judgment and remanded the matter to the trial court with directions to determine whether one or more jurors declared their belief in defendants guilt prior to the cause being submitted to them or whether one or more jurors declared their belief defendant must be guilty because he did not testify. If the trial court were to find either or both statements were made, then it was to grant defendants motion for a new trial. If the court were to find neither statement was made, then it was to reinstate the judgment.
People v. Barnes and In re Emon Barnes, supra, B167122, B170671.
The post-remand evidentiary hearing was conducted over three days during which Claudelle West, ten other seated jurors, and two alternate jurors testified. Claudelle West was the sole witness on February 25, 2005, and the remaining jurors were questioned on March 25 and April 8, 2005. Defendant was present all three days of the hearing, represented by attorney Nana Gyamfi, who has also been defendants appellate counsel, but was not his trial counsel. The prosecutor and Ms. Gyamfi submitted questions in advance to the trial court to be asked of the jurors. The court used some of these questions and asked its own questions as well. Before each juror was excused after testifying, the court afforded the prosecutor and Ms. Gyamfi an opportunity to be heard at a side bar conference. Ms. Gyamfi asked the court to clarify some of the testimony, but she never objected to or otherwise commented on the manner in which the hearing was being conducted.
The trial court was unable to locate the eleventh juror, who had changed residences without leaving a forwarding address.
According to Ms. Wests testimony, prior to deliberations two or three jurors she could not identify by name or by jury box seat number repeatedly expressed the opinion defendant was guilty, and then during deliberations these same jurors stated defendant must be guilty because he did not testify. In light of Ms. Wests testimony, the trial court concluded a prima facie showing of jury misconduct had been made and ordered the remaining jurors to testify. The available seated jurors all testified such statements were not made by them or by any other juror. The two alternate jurors testified they never heard such statements from any jurors.
In a written decision, the trial court determined after "[w]eighing the conflicting testimony, comparing the jurys verdict with Ms. Wests assertions, and weighing the credibility of all the juror witnesses," there "was no juror misconduct." Upon reconsideration, the court reaffirmed its finding and decision. We granted defendants motion for relief from default for filing a late notice of appeal and ordered the Superior Court to accept the notice as timely filed.
DISCUSSION
Defendant contends the trial court abused its discretion by conducting an unreasonable inquiry into potential juror misconduct. His contention stumbles at the threshold for two reasons: By failing to raise this objection in the trial court, defendant has waived or forfeited his contention on appeal. "The forfeiture doctrine is a `well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been — but were not — raised in the trial court." "Strong policy reasons support this rule: `It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." The stated purpose of the forfeiture rule would have been served here had the defense challenged the courts purported unfairness of its inquiry.
People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, footnote 20.
People v. Stowell (2003) 31 Cal.4th 1107, 1114, quoting People v. Vera (1997) 15 Cal.4th 269, 275.
People v. Stowell, supra, 31 Cal.4th at page 1114.
Additionally, proof of juror misconduct has two fundamental elements, neither of which is the subject of this appeal. The first is an adequate factual showing to establish the misconduct. The second is a showing of prejudice; that is, the claimed misconduct must have materially affected the partys substantial rights. It is the moving partys burden to establish the factual underpinnings of the claim by an adequate evidentiary showing of misconduct. Decisions concerning the weight and sufficiency of allegations of juror misconduct are for the trial court and are affirmed on appeal if supported by substantial evidence. Adequate proof of juror misconduct raises a presumption of prejudice, which may be rebutted by a showing no prejudice exists. In this case, defendant cannot show prejudice because he is not claiming the trial court actually erred in finding there was no juror misconduct.
See People v. Nesler (1997) 16 Cal.4th 561, 580, accord People v. Ault (2004) 33 Cal.4th 1263-1264.
Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, 991.
Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.
People v. Nesler, supra, 16 Cal.4th at page 582, footnote 5.
In re Hitchings (1993) 6 Cal.4th 97, 118.
In any event, the manner in which the trial court conducted the post-remand evidentiary hearing was not outside the bounds of reasonable inquiry into potential juror misconduct. On the contrary, a fair review of the entire record reveals a thoughtful, thorough, and even-handed investigation by the trial court as was contemplated by our remand order. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur:
PERLUSS, P. J.
ZELON, J.