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People v. Barrientos

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E043087 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. SWF12663 Albert J. Wojcik, Judge.

United Defense Group and Michael N. Friedman for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck, David Delgado-Ricci, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

King J.

I. INTRODUCTION

In July 2005, defendant drove a Ford F-150 pickup truck into a group of persons on a residential street in Murrieta, killing two and injuring two others. Nine-year-old Pedro Romero and his grandmother, Martha Romero, died of multiple blunt force trauma injuries. Four-year-old Josie Favela and her mother, Imelda Favela, were injured. Defendant fled the scene and led police on a high speed chase, after which he was taken into custody.

A jury found defendant guilty as charged of two counts of second degree murder (Pen. Code, § 187, subd. (a)); two counts of gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a)); two counts of driving under the influence causing injury, each with three multiple victim enhancement allegations (Veh. Code, §§ 23153, subd. (a), 23558); felony hit and run, with a fleeing the scene of the crime enhancement (Veh. Code, §§ 20001, subd. (b)(2), 20001, subd. (c)); felony evading (Veh. Code, § 2800.2); misdemeanor marijuana possession (Veh. Code, § 23222, subd. (b)); and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)). Defendant admitted he had one prison prior (Pen. Code, § 667.5, subd. (b)), and the trial court sentenced him to an aggregate term of 44 years 4 months to life in prison.

Defendant appeals. He first claims that insufficient evidence supports the implied malice element of his second degree murder convictions. Second, he claims the trial court abused its discretion under Evidence Code section 352, in admitting evidence of his September 2002 arrest for driving under the influence of methamphetamine, his September 2003 arrest for being under the influence of methamphetamine, and recorded phone conversations he had with family members and friends when he was in jail following his arrest for the current crimes.

Third and finally, defendant claims the trial court erroneously denied his motion for a new trial based on juror misconduct. During deliberations and in response to the trial court’s inquiry, several jurors acknowledged they had heard of a Press-Enterprise news article, published that morning, that misquoted defense counsel as saying defendant knew two people were beneath his truck when he backed over them after he initially ran over them. We find each of defendant’s claims without merit and affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

1. The July 23, 2005, Collision

At approximately 4:30 p.m. on Saturday, July 23, 2005, defendant drove a Ford F-150 pickup truck into a group of family members who were standing behind a parked car on Autumn Woods Road, a residential street in Murrieta. The group had just arrived for a birthday party at a home on Autumn Woods Road, had parked the car directly in front of the home, and were unloading some things from the rear hatch of the car. Defendant struck the rear portion of the car and four people who were behind it, including Martha Romero, her grandson Pedro Romero, age nine, her sister Imelda Favela, and Imelda’s daughter Josie Favela, age four.

Just prior to the collision, defendant was driving on Magnolia Point Drive toward that street’s L-shaped intersection with Autumn Woods Road, at excessive speeds of 50 to 60 miles per hour. The parked car defendant struck was at the end of Magnolia Point Drive and on Autumn Woods Road. Without turning or hitting his brakes, defendant plowed into the parked car and into Martha, Pedro, Imelda, and Josie. The truck came to rest on the lawn of the home on Autumn Woods Road, after also striking a tree and a six-foot-high brick wall in front of the home.

When the truck came to rest, Martha was lying on the grass behind the truck, screaming in pain. Imelda quickly grabbed her daughter Josie and got away from the area near the truck. Pedro was lying face down and unconscious near the driver’s side door of the truck, with his body and legs perpendicular to the truck. Imelda testified that Pedro’s feet were two feet from the truck. Another witness testified that half of Pedro’s body was under the truck.

After the collision, defendant got out of the truck, walked to the front of the truck, and inspected the damage to it. Next, he walked back to the driver’s side of the truck, got back in, put the truck in reverse, and, with its tires spinning, backed up and sped away while Martha was still behind the truck and Pedro was either next to it or beneath it. Defendant ignored bystanders who were screaming at him to stop because he would run over people again. Defendant ran over Pedro again as he backed up and sped away. It is unclear whether defendant ran over Martha a second time. Pedro and Martha died of multiple blunt force trauma injuries.

2. The Police Pursuit

Defendant fled the scene and resumed his high rate of speed as he drove off. A short time later, he abandoned the truck. In a cell phone message left shortly after the accident, defendant notified his friend Rigoberto Gonzalez, the registered owner of the truck, that he had been in a “bad wreck” and asked Gonzalez to report the truck stolen as soon as possible. The front license plate of the truck had fallen off during the collision. Through Department of Motor Vehicle records, officers located Gonzalez’s home address in Menifee. Gonzalez lived with his girlfriend and defendant’s friend, Amber Perez.

Several sheriff’s deputies went to a “staging area” near Gonzalez’s and Perez’s home. From a helicopter, other deputies observed a green Ford Thunderbird leaving Gonzalez’s residence at a high rate of speed. Another friend of defendant, David Nieves, had driven to Gonzalez’s home in the Thunderbird and picked up defendant. Deputies followed Nieves and defendant in the Thunderbird. Nieves stopped the car and got out, after which defendant led officers on a high speed chase in the Thunderbird.

During the pursuit, defendant drove into oncoming traffic and through several red lights and stop signs, forcing motorists off the road. One sheriff’s deputy described defendant’s driving as “almost like a scene out of the Bullet movie.” The pursuit ended after defendant ran over a spike strip, flattening three of the Thunderbird’s tires, and a highway patrol officer, performing a “P.I.T.” maneuver or “pursuit intervention technique,” rammed the left rear of the Thunderbird and caused it to spin out.

3. Defendant’s Drug Tests and Evaluations

Defendant was arrested and taken into custody. At the time of his arrest, officers found a small bag of marijuana in defendant’s pocket. Defendant also showed signs of being under the influence at the time of his arrest: he was sluggish and sleepy, his eyes were red and droopy, his speech was thick, slow, and slurred, and he would nod off, pop up, and repeatedly ask the same questions. Officer Les Jones, a drug recognition expert, conducted a drug evaluation of defendant at the time of his arrest. At trial, Officer Jones opined that defendant was under the influence of methamphetamine at the time of his arrest.

The results of a blood test taken at the time of defendant’s arrest revealed he had 451 nanograms of methamphetamine per milliliter of blood, 31 nanograms of amphetamine per milliliter of blood, and 84 nanograms of 11-Carboxy-Delta-9-THC, which is the predominant inactive metabolite produced by marijuana use. According to toxicologist Maureen Black, amphetamine is not found in a person’s blood until 8 to 12 hours after that person has ingested methamphetamine, and the amount of methamphetamine in defendant’s blood was an “appreciable” and nearly lethal amount.

4. Defendant’s Recorded Jailhouse Calls

Following his arrest, defendant was detained at the Riverside County jail. From the jail, he made numerous phone calls to friends and family members, several of which contained admissions of his drug use before and intoxication at the time of the collision, and his understanding of the severity of the charges against him. These phone conversations were recorded and played to the jury.

During one recorded conversation on August 10, 2005, defendant told Amber Perez that he hoped the results of his blood test would be lost. Defendant said the same thing to an unidentified male friend during an August 11 call. And during another call on August 11, defendant was asking whether heroine would be found in his blood tests.

During an earlier conversation with “Anna” on August 8, defendant said he was on heroine and was “nodding off” at the time of the collision. During a subsequent conversation with “Sarah” on August 10, defendant said he was “jacked up like a mother fucker” at the time of the collision. In response, Sarah said she had told defendant many times to “slow down” and not to “drive like that,” meaning not to drive under the influence of drugs.

Finally, during an August 10 conversation with Amber, defendant said he was trying to kill himself during the police pursuit because he knew “something bad happened.” He also said he wanted to “hit some mother fucker” during the pursuit because he wanted to kill himself.

5. Defendant’s Prior Arrests Involving Methamphetamine Use

The prosecution also presented evidence that defendant had two prior methamphetamine-related arrests, one on September 20, 2002, for driving under the influence of methamphetamine, and another on September 18, 2003, for being under the influence of methamphetamine. The arresting officers testified about the circumstances surrounding defendant’s prior arrests.

Hemet Police Officer Michael Elmore testified that he arrested defendant for driving under the influence of methamphetamine on September 20, 2002. Officer Elmore was driving in his marked patrol car around 10:00 p.m., after dark, when he observed defendant driving erratically and without headlights. After Officer Elmore turned on his blue overhead lights to stop defendant, defendant continued to drive slowly while swerving his vehicle back and forth. When defendant finally stopped, his vehicle was partly on the street and partly on the sidewalk.

In conducting a field sobriety test, Officer Elmore saw that defendant exhibited symptoms of methamphetamine use, including an elevated pulse, fluttering eyelids, twitching hands, dilated pupils, and an inability to estimate the passage of time. Defendant admitted to Officer Elmore than he had smoked methamphetamine earlier that day. At trial, defendant stipulated that he was under the influence of methamphetamine at the time of his September 20, 2002, arrest, and Officer Elmore opined that he was.

One year later, on September 18, 2003, Hemet Police Officer Frank Pitette, a drug recognition expert, arrested defendant for being under the influence of methamphetamine. On September 18, 2003, Officer Pitette was driving in his marked patrol car when he found defendant sitting in a car, alone, parked on the dirt shoulder of a road in Hemet. Defendant showed signs of being under the influence of methamphetamine. He appeared very nervous, his hands were shaking, and his speech was rapid and stuttering. He also had “violent eyelid flutters” and a high pulse rate, he was grinding his teeth, and he greatly overestimated the passage of time. A methamphetamine pipe was found in the car defendant was sitting in. At trial, Officer Pitette opined that defendant was under the influence of methamphetamine at the time of his 2003 arrest.

B. Defense Evidence

Defendant testified in his own behalf. He was 27 years old at the time of trial in 2006. He was a member of the Pechanga Indian tribe and had been raised on the reservation. He had no more than a fourth or fifth grade education and could not read or write. He had been addicted to methamphetamine since he was 12 or 13 years old.

Regarding the collision, defendant recalled hitting the car with the truck but did not recall seeing any people by the car or anything that occurred at the scene of the collision. For example, he did not recall getting out of his truck or backing over anyone after the collision. He did, however, recall driving away from the scene. He parked the truck and “took off walking” until someone gave him a ride. He was dropped off at Amber’s house. From there, he walked to the home of Amber’s neighbor, Dave Nieves. He saw a police helicopter, became frightened, and took off in a Ford Thunderbird with Nieves. He recalled the high speed chase with police, but said he did not stop because on another occasion the police had not been nice to him and he feared having to return to jail.

Defendant claimed he was not under the influence of methamphetamine or any other drugs or alcohol at the time of the collision, and had not taken any drugs since the morning before the collision. During the high speed chase, he said he swallowed a one-inch “rock” of methamphetamine because he feared being caught with it in his possession.

Defendant admitted he lied to police after the accident when he said he had last used methamphetamine on the morning before the accident. He also admitted he lied when he told a police officer at the time of his arrest, and again while he was in custody, that he was not the driver of the truck involved in the accident. He said he lied because he was “scared” and did not want to be in trouble.

On cross-examination, defendant also admitted he knew, at the time of the accident on July 23, 2005, that it was illegal to drive under the influence of methamphetamine because it was dangerous and could cause a crash. He also acknowledged that, a week before the accident, his friend Sarah warned him not to drive under the influence of drugs. He knew what a designated driver was: someone who drives for you when you are under the influence, because you should not be driving when you are under the influence. He also agreed he was not “dumb” and was “a smart man” even though he was illiterate. At one point, defendant admitted he was “high” at the time of the collision, but later insisted he was not.

III. DISCUSSION

A. Substantial Evidence Supports the Implied Malice Element of Defendant’s Second Degree Murder Convictions

Defendant claims that insufficient evidence supports the implied malice element of his second degree murder convictions, because there was no evidence he knew his act of driving under the influence endangered the lives of others. We disagree. The evidence was sufficient to allow the jury to reasonably infer that defendant knew his act of driving under the influence on July 23, 2005, endangered the lives of others.

In reviewing a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that any rational trier of fact could have found the elements of the offense true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Young (2005) 34 Cal.4th 1149, 1180.) We do not reweigh the evidence; instead, we evaluate whether the evidence and the reasonable inferences that could be drawn from it support the jury’s conclusions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The crime of second degree murder requires a finding of malice, either express or implied. (People v. Rios (2000) 23 Cal.4th 450, 460; accord, People v. Martinez (2007) 154 Cal.App.4th 314, 332.) Malice is implied when the killing is proximately caused by “‘“an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’ [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 143.) “In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.” (Ibid.)

Stated another way, “a finding of implied malice depends upon a determination that the defendant actually appreciated the risks involved.” (People v. Watson (1981) 30 Cal.3d 290, 296-297.) This is a subjective standard. (Ibid.) Still, “[i]mplied malice, like all other elements of a crime, may be proven by circumstantial evidence. [Citations.]” (People v. Garcia (1995) 41 Cal.App.4th 1832, 1849, disapproved on other grounds in People v. Sanchez (2001) 24 Cal.4th 983, 991, fn. 3.) “The very nature of implied malice . . . invites consideration of the circumstances preceding the fatal act. [Citations.]” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 107.)

First, and as part of his substantial evidence claim, defendant raises the distinct claim that the jury was erroneously instructed on the mental state required for implied malice. Not so. The jury was instructed in the language of CALJIC No. 8.11, which provided, in pertinent part: “Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (Italics added.)

Defendant argues that the phrase, “knowledge of the danger to, and with conscious disregard for, human life,” as used in the instruction, is not the same as “knowledge of the danger to the life of another,” as implied malice requires. We disagree.

CALJIC No. 8.11 unambiguously told the jury that, in order to find that defendant acted with implied malice, it had to find he knew his act of driving the truck under the influence of methamphetamine was dangerous to “human life,” that is, dangerous to the lives of others or persons other than himself. It is thus not “reasonably likely” the jury misconstrued CALJIC No. 8.11 in the manner defendant claims. (People v. Rogers (2006) 39 Cal.4th 826, 876 [in reviewing ambiguous instructions, the court inquires whether it is reasonably likely the jury construed the instructions in a manner that violates the defendant’s rights].)

Apart from his claim of instructional error, defendant argues that the evidence was insufficient to show he knew or was subjectively aware that his act of driving under the influence endangered the lives of others. He claims the evidence showed only that he knew his act of driving under the influence was dangerous to himself and could get him arrested or in trouble, but not that it endangered the lives of others.

Defendant observes he had a fourth grade education; he was illiterate; and he did not have a driver’s license because he could not read. He also points out that no charges were filed against him following his September 2002 arrest for driving under the influence, and as a result, he did not attend any classes regarding the effects of driving under the influence following that arrest. And, he argues, his September 2003 arrest and subsequent conviction for being under the influence of methamphetamine (Health & Saf. Code, § 11550) did not involve his driving a motor vehicle.

Defendant also points out that the prosecution did not elicit testimony from any of its witnesses to the effect that any of them had specifically warned him that his driving under the influence of methamphetamine could cause him to kill someone. He also claims he did not testify, either on direct or cross-examination, that he knew his act of driving under the influence of methamphetamine endangered the lives of others. He argues the jury must have concluded he acted with implied malice based on speculation, or to punish him for the gravity of his crimes.

We disagree with defendant’s characterization of the evidence. First, defendant admitted he knew that the act of driving under the influence of methamphetamine was both illegal and dangerous because it could cause a crash. He also agreed that methamphetamine use impaired his judgment and that he could not drive very well when he was under the influence. He said he knew this based on his common sense. He also acknowledged he understood the importance of having a designated driver. And he acknowledged that, despite his inability to read or write, he was not “dumb” and was “a smart man.”

The evidence also showed that defendant’s friend Sarah had warned him many times before July 23, 2005, not to drive under the influence. Indeed, defendant admitted Sarah had warned him not to drive under the influence only one week before the July 23, 2005, collision. Finally, defendant was arrested in 2002 for driving under the influence of methamphetamine, and arrested in 2003 and later convicted of being under the influence of methamphetamine. He was driving a motor vehicle at the time of both prior arrests. And he admitted he had been addicted to methamphetamine for 14 years, since he was 12 or 13 years old.

Based on all of the evidence, including defendant’s testimony and admissions, the jury could have reasonably inferred that defendant knew, and was subjectively aware, that his act of driving under the influence on July 23, 2005, was dangerous to the lives of others. Thus, here, substantial evidence supports the implied malice element of defendant’s second degree murder convictions.

B. The Trial Court Properly Admitted the Evidence of Defendant’s Recorded Jailhouse Calls and the Evidence of His Prior Arrests on the Issue of Implied Malice

Defendant next claims the trial court abused its discretion under Evidence Code section 352 in admitting the recorded conversations he had with friends and family when he was in jail following his July 23, 2005, arrest, and also abused its discretion in admitting the evidence of his prior methamphetamine-related arrests in 2002 and 2003. We find no abuse of discretion.

Indeed, all of the challenged evidence was relevant to the issue of whether defendant acted with implied malice when he drove the truck under the influence of methamphetamine on July 23, 2005. Furthermore, the trial court minimized the potential prejudicial effect of the evidence by giving limiting instructions, admonishing the jury it was to consider the evidence only on the issue of implied malice.

1. Background

Before trial, the prosecutor moved to admit the evidence concerning defendant’s 2002 and 2003 arrests, and the fact that defendant was under the influence of methamphetamine at the time of both arrests, as well as defendant’s recorded phone calls from the Riverside County jail following his July 23, 2005, arrest on the current charges. The prosecutor argued that all of the evidence was admissible to show that, on July 23, 2005, defendant was on notice of and knew that driving under the influence of methamphetamine was dangerous.

Defense counsel did not object to the admission of the recorded calls. Counsel did, however, object to the admission of the prior arrest evidence on the grounds it had little probative value on the issue of defendant’s mental state in July 2005, and was therefore more prejudicial than probative.

The trial court concluded that the probative value of the prior arrest evidence was not substantially outweighed by its potential prejudicial effect. The evidence that defendant was under the influence of methamphetamine at the time of his 2002 and 2003 arrests, the court reasoned, tended to show that, in July 2005, he knew his act of driving under the influence of methamphetamine posed a danger to the lives of others. And, given the additional evidence that defendant was under the influence of methamphetamine at the time of his July 2005 arrest, the jury would not be unduly prejudiced against defendant based on the prior arrest evidence.

During trial, and following the People’s presentation of the 2002 and 2003 arrest evidence, the court gave limiting instructions, admonishing the jury it could not use the prior arrest evidence for any purpose other than on the issue of whether defendant acted with implied malice, or knew his act of driving the truck under the influence of methamphetamine endangered the lives of others.

2. Applicable Law

Under Evidence Code section 352, the trial court may in its discretion exclude evidence if its probative value is substantially outweighed by the probability that its admission will “create substantial danger of undue prejudice,” confuse the issues, or consume undue amounts of time.

The court enjoys broad discretion in determining whether the probative value of particular evidence is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We apply the deferential abuse of discretion standards when reviewing a trial court’s ruling under Evidence Code section 352. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Evidence is unduly prejudicial if it is “uniquely inflammatory” without regard to its relevance (People v. Zambrano (2007) 41 Cal.4th 1082, 1138), or if it “‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance . . . .” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Stated another way, evidence is unduly prejudicial if it creates a substantial risk that the jury will “prejudge” the defendant or his defense based on “extraneous or irrelevant considerations.” (People v. Zapien (1993) 4 Cal.4th 929, 958.)

3. Analysis

The People argue that defendant has forfeited his claim regarding the trial court’s admission of the jailhouse phone calls, because he failed to object to the admission of the calls in the trial court. (Evid. Code, § 353, subd. (a); People v. Zambrano, supra, 41 Cal.4th at p. 1139.) Setting aside the forfeiture issue, we conclude the trial court did not abuse its discretion in admitting either the recorded calls or the prior arrest evidence.

(a) The Recorded Jailhouse Conversations

Defendant first challenges the admission of the recorded jailhouse conversations on relevance grounds. (Evid. Code, § 210.) He claims the conversations were irrelevant to the issue of implied malice, because they did not have any tendency in reason to show he knew that driving under the influence of methamphetamine was dangerous to persons other than himself. Not so.

As discussed, during one recorded call, defendant’s friend Sarah indicated she had warned him many times before July 23, 2005, not to drive under the influence. This was clearly relevant to the issue of implied malice, because it tended to prove defendant knew and was subjectively aware that his act of driving under the influence on July 23, 2005, was dangerous to persons other than himself.

Although, as defendant points out, neither Sarah nor any of the other persons he spoke with during the calls specifically told him not to drive while under the influence because he could kill someone, a specific warning was not necessary to make the evidence relevant to the issue implied malice. Based on Sarah’s warnings, the jury could have reasonably inferred that he knew, on July 23, 2005, that his act of driving the truck under the influence of methamphetamine was dangerous to the lives of others.

Nor were the contents of the calls unduly prejudicial. Defendant claims, for the first time on this appeal, that the calls were unduly prejudicial but because he used “gansta speech” during some of the calls. Defendant does not explain what he means by “gansta speech,” and we discern none in the calls. Defendant did use foul language and “fool” several times, as did some of the people he spoke with, but these references were not excessive or unduly prejudicial.

(b) The Prior Arrest Evidence

Defendant argues the evidence concerning his prior arrests was more prejudicial than probative because there was no indication he had learned anything from either prior arrest, or more specifically that he knew, based on the prior arrests, that driving under the influence of methamphetamine was dangerous to the lives of others. This is similar to defendant’s claim, discussed above, that the recorded calls were irrelevant to the issue of implied malice because they had no tendency in reason to show he acted with implied malice.

Again, we disagree with defendant’s characterization of the evidence. The prior arrest evidence was indeed probative on the issue of implied malice. Both prior arrests involved defendant being under the influence of methamphetamine, and both occurred while defendant was either driving or sitting in a motor vehicle. Moreover, the jury could have reasonably inferred, based on the circumstances of both prior arrests, that defendant had learned something from the prior arrests and knew his act of driving under the influence of methamphetamine on July 23, 2005, posed a danger to the lives of others. As defendant admitted on cross-examination, he knew that driving under the influence of methamphetamine was dangerous because it could cause a crash, and he knew this based on his common sense—that is to say, his prior experience.

Finally, the prior arrest evidence was not unduly prejudicial to defendant given the additional evidence that he was under the influence of methamphetamine on July 23, 2005. And the court’s instruction limiting the use of the prior arrest evidence to the issue of implied malice effectively mitigated any potentially prejudicial effect of the evidence. Thus, the trial court properly exercised its discretion in admitting the prior arrest evidence over defendant’s Evidence Code section 352 objection.

C. Defendant’s Motion for a Mistrial and Subsequent Motion for a New Trial Based on the Press-Enterprise Article Were Properly Denied

Finally, defendant claims the trial court abused its discretion in denying his motion for a new trial based on the Press-Enterprise news article that was published during jury deliberations. We find no error.

1. Relevant Background

On November 9, 2006, during jury deliberations, the Press-Enterprise published a news article, misquoting defendant’s counsel as saying defendant “did know” rather than “did not know” there were two people lying under his truck when he backed up. Specifically, the article quoted defense counsel as stating, “‘There is no doubt in my mind that [defendant] caused the death of two people . . . .’ ‘But, he is not a murderer. He did know people were there when he backed up the truck. Two people died. I’m not questioning that.’” (Italics added.)

Defense counsel brought the article to the attention of the court on the morning of November 9. He advised the court how he had been misquoted, and that the author of the article had acknowledged the misprint and was going to publish a retraction. He asked the court to inquire of the jurors whether any of them had read the article. He expressed concern that, even though the jurors had been admonished not to read news articles concerning the case, at least some of them may have read the article and it could improperly influence their deliberations.

In open court, the court asked the jurors whether any of them had seen, read, or heard of any news articles printed, on either November 8 or 9, concerning the trial. In response, Juror Nos. 2, 3, 7, 8, and 11 revealed that they were aware of the article, either because they had seen it in the newspaper or a family member had seen it and brought it to their attention. But these jurors also said they had not read the article and had not discussed it with anyone. In addition, each of them acknowledged the court’s previous instruction not to read news articles concerning the case, and affirmatively stated that the article would not affect their deliberations.

The court commended the jurors for following its instruction, and doing “exactly” what they were supposed to do by not reading the article or discussing it with anyone. Then, out of the presence of the jury, the court indicated to counsel it was satisfied that none of the jurors had read the article or discussed it with anyone, and that none of the jurors had committed misconduct relative to the article. Defense counsel said he was not “really satisfied” because he believed some of the jurors had read the article, but he was “absolutely satisfied” with the court’s questioning of the jurors.

Thereafter, defendant moved for a new trial on grounds of juror misconduct based on the article. In support of the motion, the defense noted the article was published just as the jury was beginning deliberations and contained a photo of defendant and a two-part title which read: “Murder conviction sought,” and “Lawyers for both sides state the man was responsible for the two deaths.” Defense counsel argued that the caption of the article was prejudicial to defendant, even if none of the jurors read the article. And, given that some of the five jurors who knew of the article had acknowledged seeing it, there was juror misconduct and a presumption of prejudice.

The prosecutor argued the defense failed to establish any juror misconduct, because all of the jurors who acknowledged seeing or hearing of the article also said they had neither read it nor discussed it with anyone. Thus, the prosecutor argued there was no indication that any of the jurors had committed misconduct, or failed to follow the court’s instructions not to read news articles concerning the case or allow such extraneous matters to influence their deliberations. After reviewing the responses of the jurors who acknowledged seeing or being aware of the article, the trial court denied the motion.

2. Applicable Law

“A juror who ‘consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors’ commits misdconduct.” (People v. Tafoya (2007) 42 Cal.4th 147, 192, citing In re Hamilton (1999) 20 Cal.4th 273, 294.) Indeed, it is “well settled that evidence obtained by jurors from sources other than the court is misconduct and constitutes grounds for a new trial if the defendant has been prejudiced thereby.” (People v. Von Villas (1992) 10 Cal.App.4th 201, 253; Pen. Code, § 1181, cl. 2.)

Juror misconduct gives rise to a presumption of prejudice which may be rebutted by a showing that no prejudice occurred. (People v. Stanley (2006) 39 Cal.4th 913, 950.) The presumption of prejudice may be rebutted if, after reviewing the entire record, the reviewing court determines there is no reasonable probability the defendant was actually prejudiced. (Ibid.)

Whether prejudice arose from juror misconduct is a mixed question of law and fact subject to the reviewing court’s independent determination. (People v. Nesler (1997) 16 Cal.4th 561, 582.) But in determining whether any jury misconduct occurred in the first instance, the reviewing court is bound by the trial court’s credibility determinations and findings on questions of historical fact, if supported by substantial evidence. (Ibid.)

3. Analysis

The trial court found there was no juror misconduct, because it believed the statements of Juror Nos. 2, 3, 7, 8, and 11 that, although they had either seen or heard of the news article, they had neither read it nor discussed it with anyone. The trial court also accepted the statements of these jurors that they would not allow the article to influence their deliberations. None of the other jurors indicated they had any knowledge of the article. Substantial evidence supports the trial court’s credibility determinations, and we are bound by them. (People v. Nesler, supra, 16 Cal.4th at p. 582.)

Thus, here, there was no juror misconduct. Nor, given the trial court’s credibility determinations, is there any basis for concluding that any misconduct occurred. None of the jurors committed misconduct simply by seeing the article or by having it brought to their attention by family members. None of the jurors read the article or discussed it with anyone, and none of them allowed the article to influence their deliberations. Defendant’s motion for a new trial was therefore properly denied.

For the first time on this appeal, defendant argues that the trial court did not fully, fairly, or adequately inquire of the jurors concerning “the impact caused by the newspaper article and its misstatement on the critical issue of the defendant’s knowledge at the time of the offense.” He claims the trial court asked leading questions which suggested the answers the court wanted to hear, and that the tenor of the court’s questioning suggested it was not going to allow the article, “or any incidental consideration of it, to interfere with the jury’s deliberations.”

The record does not support defendant’s characterization of the court’s inquiry. The court fairly inquired of the jurors concerning whether they knew of the article, had read it or discussed it with anyone, and whether their knowledge of the article would affect their deliberations. Its questions were straightforward and neither leading nor suggestive. The court was satisfied with the jurors’ responses, and so are we. Nothing in the record indicates the court should have inquired further of the jurors or differently than it did.

IV. DISPOSITON

The judgment is affirmed.

We concur: Ramirez P.J., Miller J.


Summaries of

People v. Barrientos

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E043087 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Barrientos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOE ANTHONY BARRIENTOS, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 9, 2008

Citations

No. E043087 (Cal. Ct. App. Sep. 9, 2008)

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