Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC775766.
McAdams, J.
A jury found defendant Robert O’Neal Brown guilty of two sexual offenses against his granddaughter, a child under the age of 10: penetration and continuous sexual abuse. (Pen. Code §§ 288.7, subd. (b), 288.5, subd. (a).) The jury was unable to agree on two other charges, and the court declared a mistrial as to those counts. The court sentenced defendant to consecutive prison terms of 16 years and 15 years to life.
On appeal, defendant asserts two errors by the trial court: (1) the admission of evidence of a prior uncharged sexual offense and (2) the denial of his motion for mistrial, which was brought on the ground of jury misconduct.
Rejecting both of defendant’s contentions, we affirm the judgment.
BACKGROUND
Defendant was charged with sexual offenses against his granddaughter, S., which took place during the period from January 2007 through June 2007, when S. was nine years old. Following a preliminary examination, defendant was held to answer these four charges: (1) sexual intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)); (2) oral copulation with a child 10 years of age or younger (id., subd. (b)); (3) sexual penetration of a child 10 years of age or younger (ibid); (4) continuous sexual abuse of a child under the age of 14 – resident child molesting (id., § 288.5, subd. (a)).
Jury trial began on September 27, 2008. Among the witnesses were S. and N. S. is defendant’s granddaughter, the child of his daughter T. N. is S.’s maternal aunt, her mother T.’s half-sister. S. testified that defendant had performed sexual acts on her, including touching her breast and her vagina, with his hand and with his mouth; placing her hand on his penis; putting his fingers in her anus and in her vagina; and putting his penis in her vagina. N. testified concerning an incident when she was a child, in which defendant touched her vagina with his hand.
The jury began deliberating on October 22, 2008. Two days later, the jury had reached a verdict on counts 3 and 4 but it was deadlocked on counts 1 and 2. A subsequent jury note prompted discussions between the court and the jurors. Thereafter, defendant moved for a mistrial on the ground that improper juror discussions regarding penalty had “poisoned” the jury. After polling the jury, the court denied the motion for mistrial as to counts 3 and 4. The court granted a mistrial as to counts 1 and 2, on which the jury was deadlocked.
The sentencing hearing took place on December 5, 2008. The court sentenced defendant to a prison term of 15 years to life on count 3, consecutive to 16 years on count 4.
Defendant brought this timely appeal. He asserts that the trial court erred first by admitting N. testimony and also by denying his motion for mistrial based on juror misconduct. Represented by the Attorney General, the People dispute both of defendant’s assertions.
DISCUSSION
We consider the two issues in turn. As to each, we proceed in four steps: (a) we summarize the governing legal principles; (b) we describe the pertinent procedural context; (c) we set forth the applicable review standard; and (d) we analyze defendant’s claim, applying the relevant legal principles to the facts of this case.
I. Admission of Evidence of Prior Sexual Offense
In his first appellate argument, defendant challenges the admission of N.’s testimony about his sexual conduct with her some 30 years before.
A. The Statutory Framework
As to this claim, the relevant statutes are all part of the Evidence Code. (Unspecified statutory references are to that code.) This case concerns the interplay among sections 1108, 1101, and 352.
1. Section 1108
The governing statute is section 1108, which states in pertinent part: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) Section 1108 was enacted “to expand the admissibility of disposition or propensity evidence in sex offense cases.” (People v. Falsetta (1999) 21 Cal.4th 903, 911; People v. Abilez (2007) 41 Cal.4th 472, 502.) “Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes.” (People v. Falsetta, at p. 915.)
2. Section 1101
“Prior to the enactment of section 1108, section 1101 governed the use of evidence of prior uncharged sexual misconduct in a criminal trial.” (People v. Britt (2002) 104 Cal.App.4th 500, 505.) Section 1101 declares the general rule that character evidence, including evidence of prior bad acts, is inadmissible to prove a person’s conduct on a specified occasion. (§ 1101, subd. (a); see People v. Falsetta, supra, 21 Cal.4th at p. 911.) Section 1101 contains two statutory exceptions to that general rule. The first permits the use of evidence of uncharged misconduct to prove some fact other than propensity, such as motive, intent, identity, or plan. (§ 1101, subd. (b); People v. Falsetta, at p. 911; People v. Britt, at p. 505.) The other permits the use of such evidence for impeachment. (§ 1101, subd. (c); People v. Falsetta, at p. 911.)
In Falsetta, the California Supreme Court identified “three separate reasons supporting the general rule against admission of propensity evidence. The rule of exclusion (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protracted ‘mini-trials’ to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant’s other offenses.” (People v. Falsetta, supra, 21 Cal.4th at pp. 915-916.) The high court found section 1108 “reasonably compatible with these three factors, ” with the result that “the provision does not offend due process.” (Id. at p. 916.)
Concerning “the third factor disfavoring propensity evidence, the possible undue prejudice arising from the admission of defendant’s other offenses, ” Falsetta concluded that “section 352 provides a safeguard that strongly supports the constitutionality of section 1108.” (People v. Falsetta, supra, 21 Cal.4th at p. 916; see id. at p. 918.)
3. Section 352
Section 352 provides that the “court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” In cases involving section 1108, trial courts “must engage in a careful weighing process under section 352.” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Under section 1108, evidence of prior sexual offenses may be considered for any relevant purpose, “subject only to the prejudicial effect versus probative value weighing process required by section 352.” (People v. Britt, supra, 104 Cal.App.4th at p. 505.) As used in section 352, “prejudice” refers to “ ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 19.) Fundamentally, “the ultimate object of the section 352 weighing process is a fair trial.” (People v. Harris (1998) 60 Cal.App.4th 727, 736.)
Various factors inform “the trial court’s discretionary decision to admit propensity evidence under sections 352 and 1108.” (People v. Falsetta, supra, 21 Cal.4th at p. 919, citing People v. Harris, supra, 60 Cal.App.4th at pp. 737-741.) As explained in Falsetta: “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, at p. 917; People v. Pierce (2002) 104 Cal.App.4th 893, 900.) As distilled in the earlier Harris case, the factors vital to the weighing process are the inflammatory nature of the evidence; the probability of confusion; remoteness; consumption of time; and the probative value of the evidence. (People v. Harris, at pp. 737-741.)
B. Procedural Context
On the first day of trial, the prosecutor and defense counsel both filed written motions in limine concerning proposed testimony by N. about an uncharged sexual offense against her by defendant from some thirty years before, when N. was about nine years old. After learning of the current charges against defendant from S.’s mother, N. cooperated with investigating officers in this case by participating in a “pretext call” in which she confronted defendant about his molestation of her when she was a child. The prosecutor sought a ruling allowing N. to testify about the prior offense, under the authority of section 1108. Defendant sought to exclude the testimony under sections 1101 and 352.
At the hearing on the in limine motions, the court stated that it had “engaged in a balancing act under Evidence Code [section] 352 to determine if the probative value of the evidence of the prior act is substantially outweighed by the possibility that its admission will create a substantial danger of undue prejudice.” The court cited three cases, including People v. Harris, supra, 60 Cal.App.4th 727. The court stated that it had “considered the inflammatory nature of the evidence, the probability of confusion to the jurors, the similarity of the past crime to the current crime, the remoteness factor, the potential for undue consumption of time and the probative value.”
The court granted the prosecution motion, ruling that “the prior alleged act against N.” was admissible under section “1108 to show propensity, ” and also was admissible to “give context to the pretext call” made by N. to defendant. During the trial, N. testified that defendant touched her “in a sexual way” when she was “probably about 9 or 10.” After defendant’s objection to the testimony was overruled, N. described how defendant had touched her vagina with his hand.
On appeal, defendant contends the trial court erred when it permitted N. to testify about the touching incident. He argues that admission of the evidence was more prejudicial than probative “because the uncharged misconduct was separated by thirty years from the currently charged conduct, and involved a single incident which was wholly dissimilar from” the current case.
C. Review Standard
We review the trial court’s decision to admit evidence under sections 1108 and 352 for an abuse of discretion. (People v. Pierce, supra, 104 Cal.App.4th at pp. 900-901; People v. Waidla (2000) 22 Cal.4th 690, 724.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
D. Analysis
As we now explain, we find no abuse of discretion. In deciding to admit N.’s testimony, the trial court properly identified and applied the pertinent law.
1. As the trial court recognized, sections 1108 and 352 govern.
In his opening brief, defendant acknowledges that section 352 controls the analysis. But he nevertheless makes arguments under section 1101, subdivision (b), concerning intent, common plan, identity, and motive. Those arguments are misplaced. They assume that the provision’s “test for admissibility of prior uncharged offenses in a sex offense case survived the enactment of section 1108. It did not.” (People v. Britt, supra, 104 Cal.App.4th at p. 505.) “When section 1108 swept away the general prohibition on character evidence set forth in section 1101, it rendered moot the exceptions to that prohibition created by section 1101, subdivision (b).” (Id. at p. 506.) In essence, “section 1108 functions as another albeit much broader exception to the general rule of exclusion of other-crimes evidence.” (People v. Harris, supra, 60 Cal.App.4th at p. 737.) As the trial court recognized, “an 1101 analysis is not required if the evidence should come in under 1108.”
Thus, under governing law, section 1108 allows “ ‘the jury in sex offense... cases to consider evidence of prior offenses for any relevant purpose’ [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352.” (People v. Britt, supra, 104 Cal.App.4th at p. 505.) Various factors guide that weighing process, as described in People v. Harris, supra, 60 Cal.App.4th 727. As we explain next, contrary to defendant’s contentions, the trial court properly applied those factors here.
2. The trial court did not abuse its discretion in admitting the evidence.
In his reply brief, defendant focuses on the pertinent factors under section 352, as described in Harris, which are: (a) the inflammatory nature of the evidence; (b) the probability of confusion; (c) remoteness; (d) consumption of time; and (e) the probative value of the evidence. (People v. Harris, supra, 60 Cal.App.4th at pp. 737-741.) The trial court cited those factors when it decided that the evidence would be admitted. Defendant contends that the court erred in its analysis of all of the factors except the first.
We reject defendant’s contention that the trial court should have excluded the evidence under the factors set forth in People v. Harris, supra, 60 Cal.App.4th 727. To explain that conclusion, we address each factor in turn.
a. Nature of the evidence
In applying this first factor, the court examines the nature of the prior acts evidence, to assure that it is “no stronger and no more inflammatory than the testimony concerning the charged offenses.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405, quoted in People v. Harris, supra, 60 Cal.App.4th at p. 738.)
In his reply brief, defendant concedes that “the testimony regarding the uncharged act was not more inflammatory than” evidence of the current offenses. That concession is well-taken. This factor thus does not support exclusion.
b. Confusion
Where no conviction results from the prior misconduct, that circumstance may heighten “the danger that the jury might have been inclined to punish defendant for the uncharged offenses” and thus risk jury confusion. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Harris, supra, 60 Cal.App.4th at pp. 738-739.)
Here, defendant argues that since he “had never been punished in any way for his alleged conduct 30 years ago, there was a great probability that the jury would have taken it upon themselves to punish him for the conduct in that allegation.” Defendant makes that argument for the first time in his reply brief, and he offers no evidence, argument, or authority to support it.
We reject defendant’s argument as both tardy and unsupported. (See, e.g., Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [argument would not be considered where it was raised for the first time in the reply brief]; Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2 [contention was forfeited where it was “merely asserted without argument or authority”].)
In any event, it does not appear that the jury was motivated by a desire to punish defendant for the uncharged offenses, since it failed to convict him of two of the four current charges.
c. Remoteness
The passage of time between the prior and current conduct “is an appropriate factor to consider in a section 352 analysis.” (People v. Harris, supra, 60 Cal.App.4th at p. 739.) But “there is no bright-line rule” for assessing remoteness. (Ibid.) “No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch (2001) 91 Cal.App.4th 274, 284; People v. Pierce, supra, 104 Cal.App.4th at p. 900.) Moreover, “substantial similarities between the prior and the charged offenses” may “balance out the remoteness of the prior offenses.” (People v. Branch, at p. 285; People v. Pierce, at p. 900.)
In this case, “the trial court carefully weighed the remoteness issue with a series of other factors.” (People v. Pierce, supra, 104 Cal.App.4th at p. 900.) The trial court cited two cases, People v. Harris, supra, 60 Cal.App.4th 727, and People v. Branch, supra, 91 Cal.App.4th 274. The trial court noted its discretion under those cases “to allow 50-year-old priors” but it expressed the view “that a 10 year or more passage of time requires higher scrutiny.” In deciding to admit the evidence despite the passage of time, the trial court implicitly found that the remoteness of defendant’s prior conduct with N. was balanced out by its similarity to the current conduct with S.
Contrary to defendant’s contentions, the trial court did not abuse its discretion in making that determination. Here, the two sets of incidents share at least three areas of similarity. First, there are similarities between the victims. In both cases, they were young girls, about nine years old. S. is “tall for her age” just as N. was. Both victims had a family relationship with defendant, by blood or marriage. (See People v. Wallace (2008) 44 Cal.4th 1032, 1054.) Second, there are similarities with respect to defendant’s access to the victims. In both cases, defendant committed the offenses in the place where he was living. With N., it was his at his residence in Pasadena, where she and S.’s mother T. were staying during a summer visit. With S., the conduct occurred first at her apartment in San Jose, during defendant’s temporary residence there, and later at his apartment in Richmond, where she visited. Third, the nature of the acts is similar, at least in part. In both cases, defendant touched the girls on their vaginas with his hand. N. testified that defendant pulled her legs apart with his hand, moved her panties to the side, opened the lips of her vagina, placed his finger on top of her clitoris and rubbed it. His finger penetrated the lips of her vagina. S. testified that defendant touched her vagina under her clothes, including putting his fingers inside. The fact that defendant also engaged in other acts with S. does not undermine the trial court’s assessment of the similarities between defendant’s acts with N. and his acts with S. (See People v. Frazier (2001) 89 Cal.App.4th 30, 41 [“evidence shows defendant has a pattern of molesting his young female relatives”]; cf., People v. Harris, supra, 60 Cal.App.4th at pp. 740-741 [there was no “meaningful similarity” between prior “act of inexplicable sexual violence” and current “ ‘breach of trust’ sex crimes”].)
Given the similarity of the acts, the remoteness of the prior conduct did not compel exclusion of the evidence.
d. Undue time consumption
In another argument raised for the first time in the reply brief, defendant makes the bare assertion that the challenged evidence “did take additional time during the preparation for trial and during the trial itself.” Again, defendant’s assertion is both untimely and unsupported by analysis or authority. (Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 295, fn. 11; Taylor v. Roseville Toyota, Inc., supra, 138 Cal.App.4th at p. 1001, fn. 2.)
Even on the merits, defendant’s argument cannot be sustained. Concerning trial preparation, there is no showing of the time spent in preparing to meet N.’s testimony. Concerning presentation of the evidence at trial, the record does not support the claim that N.’s trial testimony was unduly time consuming. Ten witnesses testified, with their testimony covering some 700 pages of trial transcript. N.’s entire testimony represents about 30 pages of transcript, of which less than half was devoted to descriptions of the offense itself. (See People v. Pierce, supra, 104 Cal.App.4th at p. 901 [“Little time was devoted to the prior offense; it involved only 17 pages of transcript”].) We therefore reject defendant’s arguments concerning this factor.
e. Probative value
“On the issue of probative value, materiality and necessity are important. The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative.” (People v. Stanley (1967) 67 Cal.2d 812, 818-819, fns. omitted, quoted in People v. Harris, supra, 60 Cal.App.4th at pp. 739-740.) The degree of similarity between the prior and current conduct is a pertinent factor in assessing probative value, even in a case governed by section 1108 rather than section 1101. (People v. Harris, at p. 740; see People v. Falsetta, supra, 21 Cal.4th at p. 917 [among the section 1108 factors is the prior act’s “similarity to the charged offense”]; People v. Abilez, supra, 41 Cal.4th at p. 501 [same].)
Defendant argues that “the probative value was not substantial given that the prior and current offenses were not substantially similar.” In making this argument, defendant contrasts the “ongoing sexual abuse” of S., which included a wider range of sexual offenses, with the uncharged conduct with N., which he describes as “a single isolated incident of touching a finger to a vagina without penetration.”
We reject that argument. As explained above, there are a number of similarities between the prior and current acts, including the age of the victims, defendant’s means of access to them, and some of the acts themselves. This record thus supports the court’s implied finding that the similarities here are sufficiently probative.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) We find no abuse of that discretion here.
II. Jury Misconduct
In his remaining appellate argument, defendant contends that the trial court erred in denying his motion for mistrial, which was based on a claim of jury misconduct. According to defendant, the discussion of punishment among some of the jurors “irreparably destroyed the integrity of the deliberations.”
A. Legal Framework
A motion for new trial may be granted on grounds of jury misconduct. (Pen. Code, § 1181, subd. 2; People v. Atkins (1988) 203 Cal.App.3d 15, 26, disapproved o other grounds in People v. Jones (1990) 51 Cal.3d 294, 322.) To prevail on a jury misconduct claim, the complaining party must show both misconduct and resulting prejudice.
1. Misconduct
“Evidence obtained by jurors from sources other than in court is misconduct and constitutes grounds for a new trial if the defendant has been prejudiced thereby.” (People v. Trujillo Garcia (2001) 89 Cal.App.4th 1321, 1338; see Pen. Code, § 1181, subd. 2; People v. Nesler (1997) 16 Cal.4th 561, 578.) But the “receipt of information from an outside source does not always warrant reversal. Sometimes the information is obtained in a way that cannot be deemed misconduct; sometimes the information is not relevant to the issues in the case; and sometimes, even if misconduct occurred, it did not result in prejudice.” (7 Witkin, Cal. Procedure (5th ed., 2008) Trial, § 328, p. 381.)
2. Prejudice
“Prejudice exists if it is reasonably probable that a result more favorable to the complaining party would have been achieved in the absence of the misconduct.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 415.) “Juror misconduct raises a rebuttable presumption of prejudice. The presumption may be rebutted by proof that prejudice did not actually result.” (People v. Mendoza (2000) 24 Cal.4th 130, 195.) Even where prejudice is shown, it may be curable at trial by admonition or instruction. (See People v. Wallace, supra, 44 Cal.4th at p. 1084.)
B. Procedural Context
After the jury reached verdicts on counts 3 and 4, and while it was still deliberating on counts 1 and 2 without success, the jury foreperson sent a note to the court with a question about how to deal with jurors’ failure to follow instructions. In response to the note, the court summoned the foreperson for questioning.
The foreperson revealed to the court that some jurors were considering improper matters, including punishment. The foreperson described a specific comment by juror number 8 “as to what could possibly be the maximum sentencing.” The foreperson stated: “It was a comment. It wasn’t elaborated on because I didn’t let it go anywhere.” The foreperson also stated that juror number 8 “did say he is not taking that into consideration after I told him we can’t take it into consideration.”
After asking the foreperson to step out of the courtroom, the court expressed its concern that if juror number 8 “is considering penalty or punishment then we may not have proper deliberations. He may have to be removed, but if he simply made a comment about punishment and followed up with I’m not going to consider that or I’m not considering that, then perhaps we have good verdicts.”
Thereafter, the court brought in juror number 8 and asked him whether he had mentioned punishment during the deliberations. Juror number 8 acknowledged that he had done so; more specifically, in response to another juror’s question, he had expressed his opinion that defendant faced a sentence of 25 years to life. Juror number 8 did not “at any time consider penalty or punishment” in reaching the verdicts. To his knowledge, the same was true for the other jurors.
Outside the jury’s presence, the court and the attorneys discussed what to do about the revelations. Defendant’s counsel indicated his intent to move for a mistrial. But counsel did not want juror number 8 removed, because he was a “holdout on counts 1 and 2.” The prosecutor concurred in keeping juror number 8 on the panel. The court found that there was “not good cause to replace juror number 8” under the circumstances. Defense counsel then moved for mistrial, arguing that the discussions regarding penalty had “poisoned” the entire jury.
The court took the mistrial motion under submission, saying: “I will explore with the jurors whether any of them considered penalty or punishment. If they said they did or the court believes that they did, then I will grant the mistrial. [¶] If they said they did not then I believe that will be a lack of grounds for a mistrial, because that’s the sole basis for [the] motion.”
The court then brought in the entire jury for polling. The jurors each answered “no” to the question “did you consider penalty or punishment?” The jurors each answered “yes” when asked to confirm that they had based their “decisions on counts 3 and 4 entirely on the evidence presented and nothing else.” After polling the jury, the court denied the motion for mistrial as to counts 3 and 4.
C. Review Standard
Generally speaking, “we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Silva (2001) 25 Cal.4th 345, 372; People v. Wallace, supra, 44 Cal.4th at p. 1084.) As more specifically pertinent to jury misconduct claims, we employ a two-prong review standard. “We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Nesler, supra, 16 Cal.4th at p. 582; People v. Stanley (2006) 39 Cal.4th 913, 951.) “Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler, at p. 582.)
D. Analysis
In denying the defense motion for mistrial, the trial court made an implied finding that no juror misconduct occurred. That finding is supported by substantial evidence. (See People v. Stanley, supra, 39 Cal.4th at p. 951.) To a person, the jurors all confirmed that they had not considered punishment in reaching their verdicts. (See People v. Wallace, supra, 44 Cal.4th at p. 1084.) “When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias.” (People v. Nesler, supra, 16 Cal.4th at p. 578.) No such showing appears on this record.
In a somewhat analogous context, the California Supreme Court characterized a juror’s “prediction that the court would commute a death verdict” as “merely the kind of comment that is probably unavoidable when 12 persons of widely varied backgrounds, experiences, and life views join in the give-and-take of deliberations. Not all comments by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such comments cannot impeach a unanimous verdict; a jury verdict is not so fragile.” (People v. Riel (2000) 22 Cal.4th 1153, 1219.) Similarly, in another somewhat analogous case, our state’s high court found no jury misconduct where “the jurors briefly discussed the possibility that defendant would be released despite any verdict of life imprisonment without the possibility of parole, and also discussed television episodes dramatizing such an event.” (People v. Schmeck (2005) 37 Cal.4th 240, 307.) As this authority reflects, a fleeting discussion of punishment does not necessarily support a jury misconduct claim.
In this case, the trial court rejected defendant’s misconduct claim based on unanimous statements by the jurors that they did not consider punishment in reaching their verdicts. Because those statements provide adequate evidentiary support for the trial court’s decision to deny the defense motion for mistrial, no abuse of discretion is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.