Opinion
A144393
02-14-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CALKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR281140)
After ingesting psilocybin mushrooms during a small gathering at his apartment, and without any apparent motive, defendant Richard Calkins shot and killed two of his friends, Cameron S. and Richard P., and shot and seriously injured another friend, Sarah B. A jury convicted Calkins of one count of second degree murder of Cameron S. and one count of attempted murder of Sarah B. but was unable to return a verdict on the count of murder of Richard P. Calkins was sentenced to 74 years to life in prison.
On appeal, Calkins argues that his convictions must be reversed because the trial court improperly: (1) denied his Batson/Wheeler motion after the prosecutor exercised a peremptory challenge on an African-American prospective juror; (2) excluded evidence that another user of mushrooms sold by Calkins's drug dealer also committed "bizarre and uncharacteristic violent" offenses; (3) refused to grant use immunity to the drug dealer after he invoked his privilege against self-incrimination; and (4) denied Calkins's motion for a new trial based on two types of juror misconduct. We affirm.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Shootings.
The shootings occurred early on the morning of November 16, 2010, during a social gathering at a two-story Vacaville apartment that Calkins, then 18 years old, shared with his girlfriend, Nichole O.; their seven-month-old daughter; his older brother, Josh; and Josh's pregnant wife, Britney.
We refer to Josh and Britney Calkins by their first names to avoid confusion.
Earlier that night, around 7:00 p.m., Britney and Nichole O. went shopping for dinner. They eventually returned and began cooking. Richard P., a friend, had arrived at the apartment, and Britney called Sarah B. to invite her and her longtime boyfriend, Cameron S., to come over. Sarah B. and Cameron S. were close with Calkins, Josh, and Britney, and regularly spent time with them.
Sarah B. and Cameron S. arrived at the apartment around 9:30 p.m. After an hour or so, Calkins, Sarah B., and Cameron S. left to buy psilocybin mushrooms to consume that night, an idea Sarah B. originally proposed. The three drove to the Vacaville home of Gabe T., a minor, and purchased $80 worth of mushrooms from him.
Around 11:00 p.m., Calkins, Sarah B., Cameron S., and Richard P. ingested varying amounts of the mushrooms, which they had split four ways. Neither Britney nor Josh participated. Sarah B. testified that after ingesting the mushrooms she felt "very calm, and . . . things were bright and vibrant," consistent with her previous experiences taking the drug. She observed that Cameron S. also seemed quiet and mellow but that Calkins, who was normally talkative, started acting "weird and quiet" and Richard P. became "happy" and was "giggling" and "laughing hysterically" at points. Josh also noticed that Calkins was being especially quiet. Britney, however, testified that everyone seemed calm and happy, and Calkins "didn't seem any different."
After taking the mushrooms, Sarah B., Cameron S., and Calkins sat in the living room with Nichole O., Josh, and Britney, and the group watched television for a couple hours. Richard P. sat nearby, in the dining area. Eventually, he and Josh went outside to smoke. After Josh came back inside, he and Britney went upstairs. Britney lay down in their bedroom, and Josh showered.
Sometime later, Nichole O. stood up, said she was going to bed, and walked toward the staircase. As Sarah B. got ready to gather her things to leave, she heard what "sounded like two really loud fire[]crackers going off" in the kitchen. She saw Cameron S. approach the kitchen in a crouched position as if to investigate the sound. After he had taken a few steps, Sarah B. heard another shot and saw him fall to the ground. Calkins approached, holding a gun, and Cameron S. began crawling toward her. Calkins, who had a "blank stare," then aimed the gun toward her, shot her in the shoulder, fired two more shots at Cameron S., and shot her in the face as she held her hands in front of it.
Nichole O. testified that she was halfway up the stairs when she heard a noise that "sounded like gunshots," prompting her to run to the upstairs bedroom where her daughter was sleeping. Nichole O. picked up the baby and went to Josh and Britney's room. Meanwhile, Josh and Britney heard a gunshot as Josh was getting into bed. Josh put on his clothes and opened the door for Nichole O. After pulling her into the room, he told her and Britney to lock the door after him and then ran downstairs.
Josh testified that as he reached the bottom of the stairs, he saw Sarah B. lying face down on the couch and Calkins shooting Cameron S. from behind. Josh said he ran to Calkins and started shaking him and yelling at him. Josh testified, "[Calkins] looked at me and he stopped shooting, and I was yelling what is wrong, what is wrong. And he wouldn't answer me, and he was very quiet like he wasn't there. He wasn't responding to me." According to Josh, Calkins then turned and pointed the gun at his brother's face and pulled the trigger, which clicked. When Josh asked Calkins why he had done that, Calkins pulled the trigger again. Josh repeatedly told Calkins to leave, and Calkins eventually walked out the front door, still holding the gun.
Other testimony cast doubt on some of Josh's testimony about his interaction with Calkins. Sarah B. never mentioned seeing Josh downstairs at this juncture, and she specifically testified that she never saw Calkins point the gun at Josh. Josh also admitted at trial that he never told the police that Calkins had aimed the gun at him and pulled the trigger and had lied to police about other aspects of the incident.
Josh testified that he then went back upstairs to his bedroom and told Britney and Nichole O. to come with him. After the women followed Josh downstairs, he made sure that Calkins was not outside. Josh then ran to his car, unlocked it, and ran back to the apartment to lead Britney, Nichole O., and his niece outside.
Two sisters who lived in the same fourplex, Katrina and Kayla G., also testified at trial. Katrina G. testified that she was lying down when she heard gunshots. She heard yelling in "a combination of both male and female" voices and a woman screaming for help. Katrina G. crawled to a window and looked out to see a man holding a gun walk out of Calkins's apartment a minute or so after the shooting had stopped. Though it was dark and she could not see the man's face, she believed he was Calkins, "based on the body type, which [was] . . . significantly different than everyone else." He quickly walked away down the street.
Calkins was five feet, seven inches and about 265 pounds at the time.
Kayla G. testified that she was awakened by gunshots and could hear a woman screaming. She called 911 and went downstairs to open her front door. Sarah B. was standing at the door, "and behind her everybody was running." Sarah B. appeared "shocked[,] like she had no emotion," and was bleeding from her face and hand. She said Calkins had shot her.
The first police officer arrived on the scene around 1:45 a.m., within a minute of being dispatched. Josh and Britney were getting into a car, seeming "anxious to leave," and the officer ordered them to stay. After determining that Sarah B. had been shot, the officer entered Calkins's apartment and discovered Cameron S. "in a kneeling position face down on the couch." Backup arrived, and the officer went further inside and found Richard P. "in a seated position leaning against a cabinet" in the kitchen. Both Cameron S. and Richard P. were dead.
At 1:53 a.m., a witness dialed 911 and reported that a man, later determined to be Calkins, was walking toward the Vacaville police station with a gun. The witness testified that when he saw Calkins walking in the middle of the street, he stopped his vehicle, believing that Calkins might be intoxicated and in need of help. Calkins then pulled out a gun and pointed it at the witness, who quickly drove away.
The police dispatcher watched on a surveillance camera as Calkins entered the station's lobby, which had mistakenly been left unlocked. Calkins "seemed very agitated" and was hitting "the records window" and "some type of a sign" with the gun. He also shattered a lobby window. Calkins eventually discarded the gun and began descending the outside stairs to leave.
A police officer responding to the scene came up the stairs, aimed his weapon at Calkins, and told him to put up his hands. Calkins displayed his hands "out by his side and said, 'What's up, what's up?' " The officer repeatedly ordered Calkins to the ground, but Calkins continued to walk down the stairs. The officer then deployed a Taser, hitting Calkins and causing him to fall down the stairs. The fall rendered Calkins unconscious, and he was transported to a hospital. Due to serious head injuries, he was intubated, put on a ventilator, and placed in a medically-induced coma.
B. The Physical Evidence.
Calkins shot all three victims with a Smith & Wesson .40 caliber semiautomatic handgun, which was recovered from the police station lobby. The weapon was functioning normally, and shooting it required a slide on the top to be pulled back and then the trigger to be pulled. It had a 10-round capacity magazine, which was empty when the gun was recovered. Eight expended shell casings were found in Calkins's apartment, three in the kitchen and five in the living room. A box of .40 caliber ammunition with eight rounds missing was recovered from the bottom shelf of the coffee table in the living room.
Richard P. died from three gunshot wounds: one to his left upper eyelid, one to the right side of his head, and one to his upper chest. The physical evidence suggested that he "was standing or leaning against the kitchen counter when he was first shot" in the eye and that the following two shots came after he "slumped against the counter."
Cameron S. died from four gunshot wounds: one to the right side of his face near his mouth, one to his left cheek, a graze wound to the right side of his upper chest, and one to his right shoulder, possibly caused by the same bullet as the one that wounded his cheek. The evidence suggested that Cameron S. was first shot in the mouth as he crouched to look into the kitchen. After he fell to the floor, he was shot in the cheek. Sarah B. sustained gunshot wounds to her face and hand.
3.72 grams of mushrooms were collected from the kitchen table, and a plastic bag containing 2.64 grams of mushrooms was collected from Sarah B.'s purse. Both sets of mushrooms tested positive for psilocybin and psilocin, psilocybin's active ingredient, and the mushrooms recovered from the kitchen table also tested positive for THC (marijuana). Around 5:00 a.m. on November 16, Calkins tested positive for THC, as well as benzodiazepines, which are commonly used during intubation. He tested negative for a number of other substances, including amphetamines and methamphetamines. He was not tested for psilocybin or psilocin.
The evidence showed that drug testing rarely detects the ingestion of mushrooms for several reasons, including the need for a preservative to be added to any sample collected and the biological mechanisms by which the human body processes the drug.
C. Calkins's Police Interview.
The police interviewed Calkins on December 5, 2010, the same day he was discharged from the hospital after an almost three-week stay. A videotape of portions of the interview was played for the jury. Calkins did not testify at trial.
For the first part of the interview, Calkins appeared unaware of the shootings. He claimed to recall little about that evening and stated that the last thing he remembered was going to sleep. He also said that Cameron S. and Sarah B. had visited him after he was hospitalized. After the police told him that he had killed Cameron S. and Richard P., he expressed shock and disbelief.
Pressed to explain what had happened, Calkins said, "It coulda been the shrooms and the drinking." He said that it was his first time taking mushrooms in two years. That night, they made him "feel funny," and he had a "weird feeling" and was "tripping [himself] out." He also described previous bad trips on mushrooms during which he would think about "weird stuff" that he thought was "fake" or stare at the ceiling. Calkins admitted that he had had the gun in his pocket, and he explained he had bought it a couple days beforehand and intended to sell it to a friend, Tim D. Calkins had loaded it with only eight rounds instead of ten because he had accidentally discharged another gun before.
Tim D. testified that he had asked Calkins to buy the gun for him and that Calkins did so soon before the shootings.
Calkins revealed that he remembered shooting the gun but thought it was a "bad dream" and not real. Though unable to remember many details, he consistently said he recalled shooting Cameron S. But Calkins's story about Richard P. and Sarah B. varied. At some points, Calkins said he did not recall shooting either one, but he also said he remembered shooting Richard P. after shooting Cameron S. and shooting Sarah B. while she was on the ground. Calkins was unclear on what prompted him to start shooting but thought he had argued with someone, likely Cameron S.
D. The Unconsciousness Defense.
No clear motive for the shootings ever emerged. Sarah B., Nichole O., Josh, and Britney uniformly denied that there were any arguments or that there was animosity between Calkins and anyone else on the evening of the shootings. The defense presented witnesses who testified that Calkins was good friends with the victims and denied knowing about any disputes between Calkins and the victims. The prosecution posited that Calkins had shot Richard P. because Richard P. had teased him, but Tim D., the primary source of that theory, testified at trial that he had previously seen Cameron S., Richard P., and Calkins making fun of each other "jokingly, not antagonizing or anything. That's just what friends do."
Calkins presented a defense of unconsciousness due to voluntary intoxication. Dr. Alex Stalcup, M.D., an expert on psychedelic drugs' effect on the human body, opined that Calkins's actions on the night in question were consistent with his having been under the influence of mushrooms. He explained that mushrooms "turn off a necessary biologic filter" and "flood" the user with stimuli. As a person becomes more intoxicated, "the line between being conscious and aware of what you're doing and the fantasies in your head gets blurred," to the extent that "[i]n extreme forms of intoxication, people enter a dream state" during which they may be purposefully committing actions even as they are "unconscious mentally." The point at which a person reaches the highest level of intoxication, referred to as "peaking," occurs one to two hours after ingestion, which was consistent with the timing of the shootings, and lasts for about two hours.
Dr. John Shields, Ph.D., testified as an expert in neuropsychology, "including . . . the effects of hallucinogenic drugs on a human brain." Based, in part, on about 20 hours of interviews with Calkins, Dr. Shields testified that Calkins was of average cognitive and memory ability and exhibited no obvious signs of any mental disorder. Given these characteristics, Dr. Shields opined that Calkins's "altered state of consciousness" during the shootings was due to his consumption of mushrooms, not some other mental issue. Dr. Shields also agreed that, given the lack of any rational motive for it, Calkins's behavior was consistent with his having been "unconscious due to the consumption of psilocybin mushrooms."
Dr. Stalcup explained that many people "hav[e] a wonderful time" when they take mushrooms, but "a bad trip" during which the user becomes unconscious of reality is also possible. The witness descriptions of Calkins's "suddenly falling silent, getting this strange expression, huge pupils, is what we would regard as someone becoming internally preoccupied, entering into this dream-like bad trip." The victims' differing reactions to the same mushrooms did not undermine this conclusion, as the same batch of mushrooms could have a different effect on different people. Dr. Stalcup testified that "[d]eterminants of the quality of the trip are the mindset, the setting in which [the drug is] done[,] and previous experiences. . . . So if someone has had a bad trip, the likelihood that they'll have another bad trip is much greater than [for] someone who has never had a bad trip."
Some evidence corroborated Calkins's own statements that he had previously had bad trips. Sarah B. told the police that Calkins had taken a smaller amount of the mushrooms than she had because "he had had a bad trip on a prior occasion using [them], and he was concerned about that." Kayla G. also told the police she had spoken to Calkins earlier in the evening of the shootings, and he "had told her that the last time he had some mushrooms, he had a bad trip." Finally, Tim D. described a "bad trip" of Calkins's about two years before the shootings during which Calkins "just walked around, wouldn't say anything, real quiet and was walking around with one hand on his head . . . and not responsive pretty much." Tim D. characterized Calkins as acting "zombie-like."
Dr. Stalcup disagreed with the prosecutor's suggestion that "the prior bad trip experience will usually be determinative of what the bad trip is going to be like in the future," indicating that it is generally unpredictable how a bad trip will manifest itself. The doctor explained, "[T]he whole point of psychedelic intoxication is that it's unpredictable. It's very risky to make predictions because someone can change on a dime." Although reported cases of violent behavior while on mushrooms are rare, Dr. Stalcup was aware of approximately ten cases in which people had attacked or killed others with whom they had good relationships. He testified, "[T]hese crimes are bizarre, they make no sense, they are gruesome, they are way out of proportion with what you'd expect an angry person or a murderer to do. They just sort of come out of the mind, and the person doesn't know what they are doing, isn't aware of what they're doing. [¶] Also, in the cases that have been reported, they have very little memory of what happened or they remember themselves in a dream. . . . None of it makes sense because it isn't sensible, it's not rational, it's not reasonable behavior. It's drug behavior."
The defense also sought to establish that two other factors influenced Calkins's behavior after Calkins took the mushrooms: the video games he played earlier that evening and the possibility that the mushrooms were adulterated with MDMA (Ecstasy). As to the first factor, Josh testified that earlier that night he and Calkins had played Call of Duty and Grand Theft Auto, both of which Josh characterized as violent games in which a primary objective is to kill people. When Josh returned to the apartment after the shootings, Grand Theft Auto was still in the PlayStation. A friend who had stopped by earlier in the evening also testified that during his visit Calkins and others were playing video games, including Grand Theft Auto. Dr. Shields testified that Calkins's having played violent video games could have "inform[ed] in some way subsequent behavior, particularly as it relates to shooting."
As to the second factor, the defense presented evidence that mushrooms from the same batch as those Calkins consumed were laced with MDMA. Three days after the shootings, the police searched the residence of Gabe T., recovered a backpack and a grocery bag containing mushrooms, and arrested him. Gabe T. admitted that he had sold Calkins " 'a lot, possibly two to five . . . eighths of mushrooms, containing stems, caps[,] and a super cap' " from the same batch as the mushrooms discovered at Gabe T.'s house. Some of the mushrooms in Gabe T.'s possession tested positive for MDMA. Dr. Stalcup testified that a combination of mushrooms and MDMA, which is a form of methamphetamine, "produces a very intense, very colorful, pretty much out-of-control form of a high" that most people would not want to experience again. Dr. Shields testified that taking the two drugs in combination "could potentially have a much more significant clinical impact" on users than mushrooms alone, "particularly on [the users'] level of awareness and their perceptual acuity." No expert testimony was presented, however, to establish whether Calkins's negative test for amphetamines and methamphetamine was possible even if he had consumed MDMA-laced mushrooms.
E. The Verdict and Sentencing.
The jury convicted Calkins of one count of second degree murder of Cameron S. and one count of attempted murder of Sarah B. It also found true the allegations that Calkins personally and intentionally discharged a firearm causing death or great bodily injury during both crimes. But the jury was unable to reach a verdict on the count of murder of Richard P. and the allegation that the attempted murder of Sarah B. was willful, deliberate, and premeditated. The trial court sentenced Calkins to a total term of 74 years to life in prison, comprised of terms of 15 years to life for the murder of Cameron S., 9 years for the attempted murder of Sarah B., and 25 years to life for both firearm enhancements.
Calkins was found guilty of second degree murder under Penal Code section 187, subdivision (a) and attempted murder under Penal Code sections 187, subdivision (a) and 664.
These allegations were found true under Penal Code section 12022.53, subdivision (d).
II.
DISCUSSION
A. The Trial Court Properly Denied Calkins's Batson/Wheeler Motion.
Calkins contends that his convictions must be reversed because the trial court erroneously denied his Batson/Wheeler motion after the prosecutor exercised a peremptory challenge on an African-American prospective juror, Ms. S. We are not persuaded.
1. Additional facts.
During voir dire, Ms. S. responded to the defense's questions about certain information in her juror questionnaire. First, she indicated on the questionnaire that she did not have any opinions about "criminal defense attorneys and prosecuting attorneys." When asked to reconcile this response with the fact that she had worked at the law firm Bingham McCutchen, Ms. S. responded that the firm was "basically corporate" even though it did some white collar defense work and that she was "not familiar with criminal." Second, the defense asked Ms. S. about her disclosed involvement in a previous criminal case. She explained that she was a character witness for her nephew during his trial for murder in the 1990's. Ms. S. indicated that she was not concerned about her ability to be objective in this case.
The questionnaire is not in our record.
The prosecutor eventually exercised a peremptory challenge on Ms. S., and Calkins made a Batson/Wheeler motion. Calkins's trial counsel explained, "Ms. [S.] appears to be African[-]American. Her answers were neutral in regard to the questionnaire and in the courtroom. She didn't have any bias toward either side. I don't believe any of the representations she made or any of her life history . . . has any relationship with law enforcement or criminal defense."
The prosecutor responded that Calkins had failed to make a prima facie showing of racial discrimination because "there [were] sufficient reasons from the record why [Ms. S.] was excused [that had] nothing to do with the fact she is an African[-]American" but asked the trial court for an opportunity to state those reasons for the record "in an abundance of caution." After the court agreed, the prosecutor explained that Ms. S. had worked at Bingham McCutchen, which had represented a defendant in another case, Alex Cervantes, who engaged in violent offenses after ingesting mushrooms purchased from Gabe T. The prosecutor also explained that Ms. S. had testified in her nephew's murder trial, which signaled her potential "sympathy for someone who is a defendant in a criminal murder case." Calkins's trial counsel responded that Ms. S. had stopped working at Bingham McCutchen before its involvement in the Cervantes case and that her involvement in her nephew's murder case was not good a reason to excuse her. Calkins's trial counsel also noted that there were no more African-Americans on the panel.
The trial court ruled that Calkins had failed to make a prima facie showing of racial discrimination and denied the motion. It found that although Ms. S. seemed like she "could be a very good juror in many respects," there were "race neutral" reasons in the record for her dismissal. It also found that the prosecutor was credible when giving his reasons for dismissing Ms. S. and concluded that he had properly exercised the peremptory challenge.
2. Substantial evidence supports the trial court's conclusion that Calkins did not make a prima facie showing of racial discrimination.
The federal and state Constitutions forbid the removal of prospective jurors based only on their race. (People v. Duff (2014) 58 Cal.4th 527, 544.) Claims that the prosecution impermissibly exercised a peremptory challenge based on race require a three-step analysis. (Id. at p. 545.) First, the defendant must " 'make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." ' " (Ibid.) "When reviewing the denial of a first stage Batson/Wheeler inquiry, we sustain the trial court's ruling if, upon our independent review of the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose." (People v. Montes (2014) 58 Cal.4th 809, 854.)
Although Calkins acknowledges that the trial court denied his Batson/Wheeler motion on the ground that he failed to make a prima facie showing, his arguments for reversal address the third stage of the inquiry, not the first stage. In particular, he claims to be entitled to relief because the prosecutor did not "conduct voir dire as to subject matter that the prosecutor later invoked as reason for a peremptory strike" and the court failed "to probe [the] prosecutor's stated reasons" for dismissing Ms. S. As the Attorney General observes, that a prosecutor offers reasons for excusing a prospective juror does not require this court to "proceed immediately to the third step of the Batson analysis—determining whether the record supports the prosecutor's race-neutral explanations—without first determining whether [the] defendant established a prima facie case of intentional discrimination." (People v. Taylor (2010) 48 Cal.4th 574, 612.) Instead, where, as here, "(1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling. [Citations.] If the appellate court agrees with the trial court's first-stage ruling, the claim is resolved." (People v. Scott (2015) 61 Cal.4th 363, 391, fn. omitted.) Here, the trial court unambiguously found that Calkins failed to make a prima facie showing, and we therefore "undertake an independent review of the record to decide 'the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.' " (Taylor, at p. 614.) Because we answer in the negative, we need not address Calkins's arguments addressed to the third stage. (See Scott, at p. 391.)
Calkins argues that he made his Batson/Wheeler motion "on [the] two bases that the challenged [juror] was (1) a racial minority; and (2) a paragon of apparent objectivity based on the totality of the jury selection record at that time." We disagree with his characterization of Ms. S.'s objectivity. Her service as a character witness in her nephew's murder trial, standing alone, could give rise to a reasonable belief that Ms. S. might be sympathetic to the defendant in a murder case like this one and justified the prosecutor's peremptory challenge. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 554-555 [brother's manslaughter conviction was a " 'reason[] other than racial bias for any prosecutor to challenge' " prospective juror]; People v. Farnam (2002) 28 Cal.4th 107, 138 [no prima facie showing made where prospective juror's nephew was in prison]; People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1098, 1114 [brother-in-law's murder conviction was race-neutral reason to dismiss prospective juror in murder trial].) Ms. S.'s promise that she could be objective despite her involvement in her nephew's case does not undermine our conclusion: even if a prospective juror protests to the contrary, "a prosecutor may reasonably surmise that a close relative's adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution." (Farnam, at p. 138.) The trial court did not err by finding that Calkins failed to make a prima facie showing of racial discrimination.
B. The Trial Court Did Not Err by Excluding Evidence Related to the Cervantes Case.
Calkins claims that the trial court violated his right to present a complete defense by excluding evidence that Cervantes violently assaulted two people after taking mushrooms from the same batch as those Calkins took. We disagree.
1. Additional facts.
Before trial, the prosecution moved to exclude "testimony involving [the] Alex Cervantes case," including both Cervantes's and Gabe T.'s testimony. (Some capitalization omitted.) According to our record, approximately a month after the shootings in this case, Cervantes stabbed two minor half-siblings of Gabe T. and raped one of them, after which Cervantes was found "naked in the house of the victims and just was kind of talking to himself when the police came." Cervantes, who was a juvenile at the time but was tried as an adult, was convicted in September 2012. In conjunction with his motion for a new trial, Cervantes submitted a declaration in which he claimed for the first time that during the attacks he was under the influence of mushrooms he had purchased from Gabe T. The prosecution here argued that evidence of Cervantes's crimes was irrelevant to proving Calkins's intent, particularly because Cervantes "had a history of mental health issues and sexually sadistic behavior." In addition, noting that the evidence of any tie between Cervantes's and Calkins's crimes was "highly speculative," the prosecution argued that the evidence was also unduly prejudicial under Evidence Code section 352.
Cervantes's appeal from his convictions is currently pending in Division Four of this court. (People v. Cervantes, A140464.)
All further statutory references are to the Evidence Code unless otherwise noted.
At a hearing on the issue, the prosecutor expounded on the differences between the two cases. There was evidence that Cervantes had previously "exhibited acts of sexual violence or had tendencies towards acts of sexual violence," including having "drawn some very, very violent drawings of women with parts of their private areas being mutilated." In contrast, Calkins did not commit "sexually-motivated" crimes, and there was no indication that he was predisposed to commit violent acts. Observing that there was a "very, very attenuated" connection between the two cases, the prosecutor asked the trial court to exclude the Cervantes evidence under section 352 because it would require a mini-trial and confuse the jury. Calkins's trial counsel responded that behavior such as Cervantes's and Calkins's "is unusual in regard to mushroom intoxication" and that "more bizarre behavior by someone else committing a crime under the influence of mushrooms" purchased from the same source and around the same time confirmed that the mushrooms caused Calkins's behavior.
The trial court ruled that the parties could not mention the Cervantes incident without first seeking a hearing under section 402. In doing so, the court suggested that much of the Cervantes evidence would be inadmissible under section 352, stating, "I don't see how you get into the particulars of [the Cervantes] case which is so different unless the D.A. opened the door on cross-examination, because the number of differences as well as the internal inconsistences in the Cervantes case do[] raise a legitimate [section] 352 issue . . . [and] I don't know how we could effectively put on just bits and pieces of that case and not permit the D.A. to fully expose any inconsistencies or inapplicability to our case."
The issue was revisited after Cervantes's attorneys sent a letter stating that Cervantes would invoke his privilege against self-incrimination if called to testify in Calkins's case. The trial court stated, "I've heard nothing so far that leads me to believe I would change my tentative ruling," and it reiterated its inclination that evidence about the Cervantes case would require "a full other trial" and would be of "very little value" and thus inadmissible under section 352. The court said it was willing to reconsider if Cervantes did testify and had "anything new or different" to say but expressed doubt that would happen given his intention to invoke his Fifth Amendment privilege.
Calkins's trial counsel later made an offer of proof of a connection between the Cervantes case and this one, stating that he intended to elicit evidence that Cervantes was found naked in the victims' home after committing the crimes, told the police he had "no recollection of what had occurred," and told his attorneys that before the crimes he had taken mushrooms he bought from Gabe T. Counsel argued that "the reasonable inference is that[,] . . . at least in regard to this batch of mushrooms, there's something that causes people to go haywire."
The prosecutor responded that Cervantes had made conflicting statements about whom he had obtained mushrooms from and that his primary defense at trial had been alcohol intoxication. At the trial court's invitation, the prosecutor identified some of the evidence he would introduce in rebuttal if Calkins was permitted to present evidence of the Cervantes incident, including testimony to establish that Cervantes's crimes had a "sexual component," Cervantes had previously "act[ed] out in a sexual manner," Cervantes was under the influence of multiple substances, and Cervantes had given conflicting statements about the source of the mushrooms he took.
The trial court again said that its "prior [section] 352 analysis" remained the same, stating, "It sounds like any nexus, if at all, is scant. And then in terms of the undue consumption of time, as well as . . . confus[ion] to the jury, I don't see it as relevant, especially in the context of the testimony we've already heard. Every person is different. Mr. Cervantes'[s] situation is completely different in terms of motivation and prior history. . . . [¶] . . . [I]f there's evidence of prior mutilation of women in addition to inconsistent statements, it bolsters my view that it has nothing to do with this particular trial, and I wouldn't allow it." The court stated that it would permit the defense to see if Cervantes invoked his Fifth Amendment privilege but if he did "that's likely the end of it."
Cervantes did ultimately invoke his Fifth Amendment privilege outside the jury's presence. The defense then made an additional offer of proof that included a transcript of the older victim's testimony in Cervantes's trial, evidence that Cervantes told one of his prior attorneys he had taken mushrooms obtained from Gabe T., and expert declarations opining that Cervantes was under the influence of mushrooms during his crimes. After reading the proffered materials, the trial court ruled that evidence of the Cervantes incident was "clearly" subject to exclusion under section 352. The court explained, "Not only is it an undue consumption of time, [there are] so many possible motivations and unexplored avenues. All I had [were] certain excerpts provided by the defense. What [the prosecutor] said in response to that is that he had many other avenues that would have been explored if those limited topics were introduced. So I'm convinced that the prior ruling was correct."
2. The trial court did not err by excluding the Cervantes evidence.
Calkins never directly argues that the ruling was erroneous under section 352, but instead contends that the ruling violated his federal constitutional right to present a complete defense. We consider both arguments in an abundance of caution.
Section 352 provides that evidence may be excluded "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." We review the trial court's ruling under section 352 for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Calkins maintains that evidence of the Cervantes case was relevant and admissible to support Dr. Stalcup's opinion that Calkins was unconscious when he shot the victims. But even if evidence is otherwise relevant and admissible, that does not end the section 352 inquiry. Calkins argues that the evidence was not "prejudicial to either party," but, in doing so, he ignores the multiple other grounds on which evidence can be excluded under section 352, including ones relied on by the trial court here: undue consumption of time and confusion of the issues. (§ 352.) As a result, he has not demonstrated an abuse of discretion under section 352.
Calkins's more direct argument is that the trial court's ruling violated his federal constitutional right to " 'a meaningful opportunity to present a complete defense' " (Crane v. Kentucky (1986) 476 U.S. 683, 690), a claim we review de novo. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 70.) "[A] state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right." (People v. Cornwell (2005) 37 Cal.4th 50, 82.) Calkins bases his argument on Crane, which held that the right to present a complete defense is violated by the exclusion of "competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence." (Crane, at p. 690.) In Crane, that standard was met where the trial court excluded evidence that the defendant sought to introduce to discredit his confession. (Id. at pp. 685-686, 690-691.)
Here, the excluded evidence would not have tended to establish Calkins's innocence or otherwise "impact[ed] the credibility of his defense as directly as the exclusion of evidence that was at issue in Crane." (People v. Wright (2005) 35 Cal.4th 964, 974; see also People v. Roberts (1992) 2 Cal.4th 271, 302 [rejecting claim under Crane because excluded evidence at issue was not "evidence 'central to the defendant's claim of innocence' "].) Calkins argues that evidence of the Cervantes case "was an essential part of the foundation for the unconsciousness defense" and key to supporting Dr. Stalcup's testimony. But while the evidence may have strengthened that defense, the trial court's ruling "did not completely preclude him from pursuing [it]." (People v. Masters (2016) 62 Cal.4th 1019, 1079.) Rather, Calkins was able to present, and did present, evidence that the mushrooms could have rendered him unconscious, including expert testimony about other users who had violent, bizarre reactions to the drug. There was no constitutional error.
C. Calkins's Claim that the Trial Court Should Have Granted Use Immunity to Gabe T. Lacks Merit.
Calkins next argues that the trial court violated his federal constitutional rights to compulsory process and to present a complete defense by not conferring use immunity on Gabe T. after it found Gabe T. had a Fifth Amendment privilege not to testify. We conclude that Calkins forfeited this claim and that, even if he had not, the claim fails under a recent decision of our state Supreme Court.
After the defense subpoenaed Gabe T. to testify at trial, the parties learned that he intended to invoke his Fifth Amendment privilege against self-incrimination. In a hearing outside the jury's presence, Calkins's trial counsel expressed an intention to elicit Gabe T.'s testimony that all the mushrooms found in his possession came from one batch, which was the source of the mushrooms he sold to Calkins. Given that some of the mushrooms in Gabe T.'s possession had tested positive for MDMA, the defense sought to raise the possibility that the mushrooms Calkins took also contained MDMA. The prosecutor said that a "foundational link" was missing, as Calkins tested negative for amphetamines and the two sets of mushrooms recovered from his apartment tested negative for MDMA.
Gabe T.'s attorney explained that her client "was charged with possession for sale or selling mushrooms" in juvenile court and the case had been resolved. She voiced concern that the statute of limitations had not run on all the crimes with which he might be charged, such as accessory to murder. Calkins's trial counsel argued that there was no indication that the police intended to charge Gabe T. with any other crimes and asked the trial court to convey immunity if the prosecutor refused to do so. When asked whether he objected to that request, the prosecutor replied that the determination was left to the court's "independent discretion" but stated that court-conveyed immunity was "a very rare occurrence," appropriate only if "a severe miscarriage of justice" would otherwise result.
The District Attorney ultimately declined to offer immunity to Gabe T. The trial court found that Gabe T. had a Fifth Amendment privilege not to testify, and Gabe T. then invoked the privilege outside the jury's presence. Calkins did not renew his request for the court to extend immunity to Gabe T., and the court never explicitly ruled on the original request.
We agree with the Attorney General that Calkins forfeited this claim, because Calkins never requested a ruling from the trial court on his request. " ' "[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling[,] . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if [the party] had failed to make the objection in the first place." ' " (People v. Braxton (2004) 34 Cal.4th 798, 813.) "This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent. [Citations.] ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his [or her] legal rights and of calling the judge's attention to any infringement of them." ' " (Id. at pp. 813-814.) Here, Calkins never asked that the court rule on his request even after the court determined that Gabe T. could invoke his Fifth Amendment right not to testify. As a result, Calkins forfeited the issue.
Even if the claim had been properly preserved, it would fail because of a recent decision of our state Supreme Court. At the time Calkins filed his opening brief, it was an open question whether a California trial court had authority to grant use immunity to a witness. (See People v. Stewart (2004) 33 Cal.4th 425, 468 [assuming, without deciding, that such authority existed even though characterizing it as a " 'doubtful' " proposition].) On the same day that Calkins filed his reply brief, however, the Supreme Court issued People v. Masters, supra, 62 Cal.4th 1019, which decisively resolved the issue by holding that "California courts have no authority to confer use immunity on witnesses." (Id. at p. 1051.) As a result, there was no error.
D. Calkins Is Not Entitled to Relief on His Claims of Juror Misconduct.
Finally, Calkins claims that he was denied a fair trial because of two different instances of juror misconduct: one juror's failure to disclose involvement in a prior criminal case, and another juror's receiving and spreading of outside information about Calkins's gang affiliation. We conclude that in both instances the juror misconduct was serious and gave rise to a presumption of prejudice. But our independent review of the record ultimately persuades us that Calkins's motion for a new trial was properly denied because there is no substantial likelihood that any juror was actually biased against Calkins.
1. General legal standards.
A criminal defendant has a constitutional right to a trial by impartial and unbiased jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110.) "A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process," which is aimed at discovering whether prospective jurors are impartial, and such untruthfulness constitutes misconduct. (Hitchings, at pp. 110-111.) A juror's "receipt of information about a party or the case that was not part of the evidence received at trial," even if inadvertent, undermines " 'the fundamental integrity of all that is embraced in the constitutional concept of trial by jury' " and also constitutes misconduct. (People v. Nesler (1997) 16 Cal.4th 561, 578-579 (Nesler).)
Juror misconduct is grounds for granting a new trial. (Pen. Code, § 1181, subds. (2)-(4).) If misconduct is established, a presumption of prejudice arises. (People v. Gamache (2010) 48 Cal.4th 347, 397; In re Hitchings, supra, 6 Cal.4th at p. 119.) As relevant here, "the presumption of prejudice is rebutted, and the verdict will not be disturbed, if a reviewing court concludes after considering the entire record, including the nature of the misconduct and its surrounding circumstances, that there is no substantial likelihood that the juror in question was actually biased against the defendant." (People v. Merriman (2014) 60 Cal.4th 1, 95.) "[I]f it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict," because "[a] biased adjudicator is one of the few 'structural defects . . . which defy analysis by "harmless-error" standards.' " (In re Carpenter (1995) 9 Cal.4th 634, 654 (Carpenter).)
In reviewing the denial of a motion for a new trial based on juror misconduct, "[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." (Nesler, supra, 16 Cal.4th at p. 582.)
2. The record reveals no substantial likelihood that Juror No. 1 was actually biased against Calkins.
a. Additional facts.
According to Calkins's motion for a new trial, Juror No. 1 reported on his jury questionnaire that he had never "had contact with employees of the criminal justice system," "called the police," or "been involved in a criminal case." A postverdict investigation by the defense, however, revealed that Juror No. 1 had in fact received deferred entry of judgment a few years before the trial after pleading no contest to a misdemeanor count of destroying evidence. According to the motion, Juror No. 1 had been an eyewitness to the shooting of his friend and "then attempted to destroy evidence and lied to the police who were investigating the case."
Neither the police report on which the motion relied for its characterization of the offense nor Juror No. 1's questionnaire is in our record.
The trial court held a hearing to question Juror No. 1. Juror No. 1 confirmed that he had been involved in an incident during which "[p]olice were summoned" but nevertheless indicated on the questionnaire that he had never "called the police" before. He explained that he believed the prior incident "didn't have to do with any involvement in this case anyway, so [he] just didn't put it down." He also confirmed that he had failed to mention the incident in response to another question about whether he had ever had a positive or negative interaction with law enforcement. Juror No. 1 stated that he had not intended to give either side an advantage, the incident did not affect his deliberations, and he was able to be fair to both sides.
The trial court indicated that "it certainly would have been preferable to have all the information" and that "both sides were denied the opportunity to further explore the incident." The court found Juror No. 1 to be credible, however, when he said he could be fair. It therefore denied the motion for a new trial on the basis of this juror's misconduct, stating, "I don't believe the information that he did not provide did constitute any prejudice to Mr. Calkins. Recognizing it would have been better to have, but the legal inquiry doesn't stop with whether [Juror No. 1] should have given the information. The question is whether it prejudiced the defense such that the verdict is patently unfair, and there was some manifestation of an injustice. And I don't believe that occurred."
At oral argument, Calkins's counsel expressed the belief that the trial court did not make a credibility determination as to Juror No. 1. In fact, right after observing that Juror No. 1 had "indicated he could be fair," the court stated, "I believed the witnesses - excuse me, the jurors when they indicated they could be fair. If I didn't believe that, I would have granted the motion [for a new trial], but I do believe they were fair, and I believed them in their testimony to the Court."
b. Discussion.
"Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct [citations], and the occurrence of such misconduct raises a rebuttable presumption of prejudice." (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.) Although the trial court did not make an explicit finding on this point, it apparently concluded that the concealment was intentional (as Juror No. 1 effectively admitted) and therefore constituted misconduct giving rise to a presumption of prejudice. The Attorney General does not seriously challenge this conclusion, and we therefore proceed to determine whether the record reveals a substantial likelihood that Juror No. 1 was actually biased against Calkins.
Initially, Calkins contends that reversal is required because the trial court applied the wrong standard, whether "the verdict [was] patently unfair," in assessing whether the presumption of prejudice was dispelled. But even if the court's framing of the issue was incorrect, reversal is not required because we apply de novo review in determining whether there is a substantial likelihood of juror bias. (People v. Green (1995) 31 Cal.App.4th 1001, 1017-1018 [trial court's failure to determine whether presumption of prejudice rebutted "of no consequence" because issue subject to appellate court's independent review]; see also Green v. Superior Court (1985) 40 Cal.3d 126, 138 ["a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasoning"].)
Calkins claims that both the offense of destroying evidence and the failure to disclose it suggests an unwillingness on Juror No. 1's part to follow the law, and that this shows bias against the defense because Juror No. 1 "may have fashioned himself something of a vigilante, obstructing justice when he felt it appropriate, and administering personal justice under his own standards" instead of accepting and applying the reasonable-doubt standard. This argument is speculative, as there is nothing in the record to suggest that any such unwillingness to follow the law would tend to benefit the prosecution instead of the defense or that Juror No. 1 was in fact biased against Calkins. (See People v. Green, supra, 31 Cal.App.4th at p. 1018 [inappropriate to assume ex-felon would be biased in favor of defense in absence of any evidence in record of such bias].) Moreover, the trial court found credible Juror No. 1's claim that he was fair, a determination to which we defer. Although Juror No. 1's willingness to conceal information when answering the questionnaire is troubling, it did not compel a finding that he was untruthful when he disclaimed any bias.
The primary decision on which Calkins relies, People v. Diaz (1984) 152 Cal.App.3d 926, is distinguishable. In that case, the trial court refused to discharge the jury foreperson after learning that she had failed to disclose during voir dire that "she had been feloniously assaulted at knifepoint during an appointed rape," and the defendant was convicted of assault with a knife. (Id. at p. 930.) The Court of Appeal reversed, holding that " 'prejudice reasonably could be inferred' " from the juror's failure to disclose the incident "because she had been the victim of a felonious knife assault, the same crime for which she was being evaluated to sit in judgment." (Id. at p. 936.) Here, in contrast, Calkins does not identify, and nothing in our record reveals, any similarity between the incident Juror No. 1 failed to disclose and the charged crimes that would suggest an anti-defense bias. In sum, there is no substantial likelihood that Juror No. 1 was actually biased against Calkins, and the trial court therefore properly denied the motion for a new trial based on this juror's misconduct.
3. There is no substantial likelihood of juror bias based on extraneous information about Calkins's gang affiliation.
a. Additional facts.
Before trial, Calkins moved to exclude any evidence that he "at some time claimed gang affiliation or association prior to the offense date in this case." In particular, he sought to exclude evidence that he had admitted to police that he was previously affiliated with a gang, that he had a particular gang moniker, and that gang-related objects were found at his apartment after the shootings. The prosecutor stated that he did not intend to introduce evidence of Calkins's gang affiliation. The trial court, noting that it was not aware of any evidence "that there was any retaliation, any gang-oriented, long-going dispute or anything related to any prior events" to explain the shootings, stated that the defense "would most likely win a [section] 352" motion should the prosecutor later seek to introduce gang-related evidence.
A few days after the jury began deliberating, Juror No. 7 sent a note to the trial court indicating that Juror No. 9 " 'said that her twin sister told her that [Calkins's] family may be affiliated (gangster). Her sister told her she should try to get off the case. Should we be worried?' " In response, the court questioned all the jurors individually.
When asked whether she was aware of any outside communications to any jurors "about this case," Juror No. 7 said that she "remember[ed] someone . . . saying that the defendant was affiliated." She explained that toward the end of the trial, when some jurors were gathered during a break, she heard Juror No. 9 say that Juror No. 9's "twin sister told her that she needs to get off the case or that she should try to get off the case because the family is affiliated." Juror No. 7 interpreted the term "affiliated" to mean affiliated "in a bad way, pertaining to [Juror No. 9] should get off the case." Juror No. 7 suspected that at least a few other jurors had heard the comment because they were all together and Juror No. 9 was not speaking quietly. Juror No. 7 experienced some concern about whether " 'everyone [is] looking at us when we go out to lunch or we're coming back in' " based on Juror No. 9's comment, but she said that the comment would not affect her deliberations and that she could be fair and impartial.
Juror No. 9 disclosed that she had shared with other jurors that there had been "a previous trial" in the case, which she had learned from her sister. Juror No. 9 was not sure whether she had learned what had occurred at any previous proceeding, and she could not remember whether she had said anything about Calkins to the other jurors. She specifically denied that the term "affiliated" had come up, saying, "It's not a word I would commonly use, so I doubt it." Juror No. 9 said that she had not been affected by the information she had learned from her sister and could keep an open mind. No other juror disclosed knowledge of the sharing of any outside information.
After the trial court finished questioning the jurors, Calkins's trial counsel stated that the court could correct the misinformation that a previous trial had occurred but that Juror No. 9 should be removed if she believed Calkins was "gang affiliated." The prosecutor responded that if Juror No. 9 was going to be dismissed for this reason, Juror No. 7 should be as well, because Juror No. 7 had "stated it was a concern going to and from" the courtroom. The prosecutor also observed that it was hard to predict how the information regarding affiliation would affect these jurors, as it could incline them to either be more " 'tough' " on Calkins or to find him not guilty out of fear of gang-related reprisals. Calkins's counsel then amended his position and stated that "the only action really to take is to tell Juror [No.] 9 that there hasn't been a prior trial in regard to this case." The court agreed to do so and decided it was unnecessary to remove either juror.
Juror No. 9 returned, and the trial court instructed her that no previous trial had occurred. Juror No. 9 then said that she also remembered her sister saying "that she wished [Juror No. 9] could get off" the case and "had heard that there had been a problem before." The court reaffirmed that there had been no previous trial, and Juror No. 9 again said that she could still be fair and impartial. The court then instructed the jurors as a group that receiving outside information would be unfair to the parties and that they must base their verdict only on evidence presented at trial. It also instructed them not to discuss the case with anyone except other jurors and not to "allow anything that happens outside of the courtroom to affect [their] decision."
After the jurors left the courtroom, Calkins moved for a mistrial. The trial court indicated that it would remove Juror No. 9 if the parties agreed, but the prosecutor argued that Juror No. 7 should be dismissed instead. The court denied "both the requests to remove one juror" and denied Calkins's mistrial motion.
In his motion for a new trial, Calkins argued that Juror No. 9's receipt of outside information and her passing it to Juror No. 7 was juror misconduct justifying a new trial. Before the hearing on the motion, a public defender investigator filed a declaration of due diligence about his attempts to serve a subpoena on Juror No. 9's sister. The investigator averred that when he spoke to the sister by telephone, she said she had read a story in a local newspaper about Calkins's "having been accused of being [a] gang member in another case in which [there] was a hung jury or he was acquitted and that there might have been some juror or audience misconduct mentioned." The sister mentioned the story to Juror No. 9 "before they started deliberating (she was not 100% sure)" and asked "if there were any problems with people (family members of people involved) in the audience and [the juror] said no."
At a hearing on Calkins's motion for a new trial, Juror No. 9's sister testified that she remembered reading in the newspaper that "the trial had been planned earlier and . . . was held over because of a problem with evidence or something." She also read that Calkins was in a gang or affiliated with a gang. The sister remembered asking Juror No. 9 whether "there [were] any concerns leaving the courthouse with problems related to the case," but the sister said she could not recall whether she had specifically told the juror that she was worried because of Calkins's gang involvement.
The trial court denied the motion for a new trial based on the outside information about Calkins's gang affiliation. The court effectively agreed that Juror No. 9's conversation with her sister constituted misconduct. But it found that Juror No. 9 was not actually biased, observing, "Juror [No.] 9 indicated she could continue on, could be fair, and we dispelled her of the falseness of the information in her mind at the time[.] . . . If there were indeed those fears, I highly suspect [Juror No. 9] would have asked to be removed, but she didn't and she promised she could be fair, and I believed her."
b. Discussion.
We begin by accepting Calkins's position that Juror No. 9's conversation with her sister about the case and Juror No. 9's sharing outside information with at least one other juror constituted misconduct, as the trial court found. (See Hitchings, supra, 6 Cal.4th at p. 118 [a juror's conversation with anyone " 'on any subject connected with the trial' " before case submitted constitutes "serious misconduct"].) In particular, we will assume Calkins is correct that Juror No. 9's sister disclosed that he was in or affiliated with a gang, a point the Attorney General does not seriously dispute. Although Juror No. 9's actions are troubling, our review of the record convinces us that there is no substantial likelihood of actual bias.
When juror misconduct based on outside information about a case is at issue, a substantial likelihood of actual bias may be demonstrated in two ways: "(1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not ' inherently' prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was 'actually biased' against the defendant." (Nesler, supra, 16 Cal.4th at pp. 578-579.) "The first of these tests is analogous to the general standard for harmless error analysis under California law. Under this standard, a finding of 'inherently' likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment." (Carpenter, supra, 9 Cal.4th at p. 653; see also People v. Danks (2004) 32 Cal.4th 269, 303.) But "even if the extraneous information was not so prejudicial, in and of itself, as to cause 'inherent' bias under the first test, the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose. Under this second, or 'circumstantial,' test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered," including "the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant." (Carpenter, at p. 654.)
Although Calkins does not specifically refer to the first test, he appears to center his argument on it by arguing that actual bias was demonstrated because the information about his gang affiliation was "highly inflammatory" and likely to prompt the conclusion that he "had a violent character in keeping with [that] affiliation and was, therefore, more likely to have committed the shootings intentionally." He primarily relies on People v. Holloway (1990) 50 Cal.3d 1098, which found that the presumption of prejudice from juror misconduct was not rebutted in a murder case where a juror learned about the defendant's prior conviction for assault, evidence the trial court had previously ruled inadmissible under section 352. (Holloway, at pp. 1107, 1111-1112.) We are mindful that the trial court here indicated it would probably exclude evidence of Calkins's gang affiliation were the defense to bring a section 352 motion. But "a [trial] court's in limine determination of prejudice is not the same as the determination that we must make on appeal" to decide whether a substantial likelihood of bias is demonstrated based on inherently prejudicial extraneous information. (Holloway, at p. 1112; see In re Boyette (2013) 56 Cal.4th 866, 892-893.) Thus, even if we assume that the gang-affiliation information's admission would have been erroneous under section 352, we must still determine whether it "was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment." (Carpenter, supra, 9 Cal.4th at p. 653.)
This position is in tension with Calkins's position below that only Juror No. 9 needed to be dismissed: if the information about Calkins's gang affiliation was so inherently prejudicial, it is far from apparent why Juror No. 7 should not have been dismissed as well. Moreover, after the possibility of dismissing Juror No. 7 arose, Calkins's trial counsel indicated that an admonishment to Juror No. 9 that there had not been a prior trial was sufficient to address the situation.
Because Calkins does not follow the traditional framework in making his claim, he does not explicitly argue that the extraneous information would have required reversal if it had been introduced at trial. He does argue, however, that the information was "prejudicial" because "motive was critical to this case" and "evidence of gang membership is generally viewed as providing a motive for otherwise senseless violence." In particular, Calkins argues that jurors privy to the outside information would have been more likely to accept the prosecution's theory that he shot Richard P. because Richard P. was making fun of him, as "gang members are notorious for shooting people for seemingly trivial motives such as a showing of disrespect." Of course, the jury did not return a conviction for Richard P.'s killing, and Calkins does not explain how we are to evaluate the prejudice issue in light of that. In any event, we are unwilling to assume that had evidence of gang affiliation been introduced at trial, the jury would have been more likely to convict Calkins of killing Richard P. Although it is unclear why the jury returned convictions for the shootings of only Cameron S. and Sarah B., motive apparently was not determinative: there was even less evidence of a motive to kill either of them than there was of a motive to kill Richard P. As Calkins has not shown that the outside information would have required reversal if admitted, it was not inherently prejudicial.
Having concluded that no substantial likelihood of actual bias is demonstrated under the "inherently prejudicial" test, we turn to whether the totality of the circumstances nevertheless establishes such a likelihood. (Nesler, supra, 16 Cal.4th at pp. 578-580.) Besides the "highly inflammatory" nature of the extraneous information, the only other factor Calkins relies on is that Juror No. 9 relayed the information to Juror No. 7. Nesler observed that "[a] juror's disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias." (Id. at p. 587.) In Nesler, however, the offending juror shared the extraneous information with other jurors "during deliberations when she disagreed with them." (Id. at p. 586.) She "made reference to extrajudicial evidence despite admonitions from other jurors not to do so" and brought up that evidence specifically when "attempting to change the views of other jurors" and "to persuade the jury to disregard the opinions of [the] defendant's experts." (Id. at pp. 588-589.) In holding that there was a substantial likelihood of bias, Nesler distinguished Carpenter, supra, 9 Cal.4th 634, which held there was no substantial likelihood of bias where a juror received outside information but did not reveal it to other jurors, "stress[ing] that nothing about the juror's conduct indicated that she had 'failed to base her verdict solely on the evidence.' " (Nesler, at pp. 586-587, 589, quoting Carpenter, at p. 656.)
Although Juror No. 9 did reveal the gang-affiliation information to at least one other juror, as in Carpenter, supra, 9 Cal.4th 634, there is no suggestion that she did so to try to influence deliberations. The record demonstrates that the extraneous information's primary significance to both her and Juror No. 7 was that it raised a concern about the safety of serving on the jury—not that the information tended to suggest Calkins was guilty or should otherwise affect the case's outcome. There is no evidence that Juror No. 9 ever mentioned the information during deliberations or otherwise used it to try to influence the verdict. Moreover, the trial court found Juror No. 9 credible when she stated that the information would not affect her consideration of the case. Given the absence of evidence that Juror No. 9 intended the information to affect the jury's deliberations or any other circumstances suggesting she harbored an actual bias, we cannot disregard the court's finding on this point.
Finally, we find it significant that the trial court reiterated instructions related to relying only on the evidence presented after it finished questioning the jurors about the issue of outside information. "The presumption of prejudice may be dispelled by an admonition to disregard the improper information. [Citations.] We generally presume that jurors observe such instructions." (People v. Pinholster (1992) 1 Cal.4th 865, 925.) Calkins argues that the subsequent instructions could not cure the harm because of the gang-affiliation information's "inflammatory nature." As we have said, that information was not inherently prejudicial. And even if it were, we would not be compelled to conclude that the instructions could not cure the harm: Holloway, which held that the outside information at issue was inherently prejudicial, emphasized that its holding might have been different had the juror misconduct "been revealed in time for the [trial] court to have taken corrective steps to cure it through admonition or by other prophylactic measures." (People v. Holloway, supra, 50 Cal.3d at pp. 1106, 1111-1112.)
In sum, the gang-affiliation information was not inherently prejudicial, and the totality of the circumstances does not reveal a substantial likelihood of actual bias.
c. The failure to ask one juror about outside information was harmless.
Calkins alternatively argues that the trial court "failed to make an adequate inquiry into the extent of the misconduct" because the court failed to question one of the jurors about the receipt of extraneous information. This claim lacks merit because Calkins cannot demonstrate that any prejudice resulted.
When the trial court questioned all the jurors during deliberations about potential misconduct, it asked each juror except Juror No. 2 whether he or she had received any outside information about the case. Juror No. 2 had sent a note to the court around the same time expressing concern about Juror No. 7's participation in deliberations, and the court asked Juror No. 2 questions only about that topic. The court's concluding question was, "Is there anything else you haven't already either told us in writing or here orally in open court?," to which Juror No. 2 responded, "No." The court then asked whether the parties' attorneys had any further questions for Juror No. 2, and both responded that they did not.
" '[O]nce the [trial] court is put on notice of the possibility a juror is subject to improper influences it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged.' " (People v. Cleveland (2001) 25 Cal.4th 466, 477.) "Although courts should promptly investigate allegations of juror misconduct 'to nip the problem in the bud' [citation], they have considerable discretion in determining how to conduct the investigation. 'The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.' " (People v. Prieto (2003) 30 Cal.4th 226, 274.)
Calkins argues that the trial court abused its discretion by not asking Juror No. 2 about receiving outside information. The court questioned every other juror about the topic, and it appears that the court's omission as to Juror No. 2 was an oversight. Even if we were to conclude that this omission constituted an abuse of discretion, however, Calkins fails to demonstrate the requisite prejudice. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Although he may not have waived this claim through his tacit agreement below that the trial court's inquiry of Juror No. 2 was sufficient, his failure to ask Juror No. 2 any follow-up questions when he had the opportunity to do so means that there is no evidence in the record to support his claim that "further inquiry might have shown that [Juror No. 2] also heard extrinsic information." (See People v. Farnam, supra, 28 Cal.4th at pp. 141-142 [inquiry adequate where "trial court made whatever inquiries were requested by the defense, and terminated questioning only after the prosecution and the defense each affirmatively indicated that no further inquiry was desired"]; People v. Davis (1995) 10 Cal.4th 463, 535-536 [defendant's claim that juror could have heard extrinsic information was speculative where defendant agreed below "that no further inquiry [of that juror] was necessary"].) Juror No. 7 told the court that she thought at least a few jurors besides her had heard Juror No. 9's comments about gang affiliation, but no other juror admitted to awareness of any outside communications about the case when asked. In the absence of any more concrete indication of how Juror No. 2 would have responded to further inquiry, Calkins is not entitled to reversal based on the court's failure to question that juror about receiving outside information.
As the Attorney General does not argue otherwise, we will assume that Calkins did not waive this claim despite the fact his trial counsel did not ask Juror No. 2 any additional questions when given the opportunity to do so. (See People v. Cowan (2010) 50 Cal.4th 401, 506-507 [no action by defendant required to preserve claim that "trial court erred by failing, sua sponte, to conduct an adequate inquiry" into possible juror misconduct].) --------
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.