Opinion
E072411
04-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JORGE MELCHOR CASTRO, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1401570) OPINION APPEAL from the Superior Court of Riverside County. Randall D. White, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jorge Melchor Castro guilty of murdering the two-and-a-half-year-old daughter of his girlfriend. Castro contends that the judgment must be reversed because the trial court erred in several respects, including by admitting certain evidence over his objection, erroneously instructing the jury, and rejecting his contention that juror misconduct required a new trial. We affirm the judgment.
I. BACKGROUND
Castro began dating his girlfriend in late 2012, and he moved in with her in early 2013. Also living in the household were the girlfriend's two children, the victim (a girl born October 2010) and her older brother (born December 2005). Castro had his own two children, a daughter born October 2004 and a son born March 2006, who sometimes stayed with them. Castro often cared for his girlfriend's children, as well as his own, while she was at work.
On the evening of April 5, 2013, Castro was in charge of all four children while his girlfriend went to work for a shift that began at 6:00 p.m. and lasted until 2:00 a.m. the next morning. During the shift, at about midnight, Castro called his girlfriend and said that he was upset with the victim because she had urinated while the two of them were lying in the master bedroom, watching television. The accident was uncharacteristic of her; she had been potty trained for months, since before her second birthday. During the call, Castro put the victim on the phone with his girlfriend, and the two spoke briefly. The victim was crying, but coherent; Castro's girlfriend did not perceive anything that caused particular concern.
According to Castro, once they got off the phone, he washed the victim off in the bathtub, got her calmed down, and laid her down to sleep on a child's bed, which was also in the master bedroom. Castro's girlfriend testified that when she got home at about 2:45 a.m., she checked on the victim, who appeared to be sleeping normally. She then went to sleep herself in the main bed of the master bedroom, together with Castro and Castro's daughter. (These sleeping arrangements were not unusual for the family: the victim had her own bedroom, but she did not like sleeping there, particularly since she had been ill recently; when Castro's daughter visited, she regularly shared the main bed of the master bedroom with Castro and his girlfriend.)
When Castro's girlfriend woke at about 8:00 a.m., she noticed that the victim was lying in the same position as the night before. But it was not unusual for the victim to sleep through the night on one side. Castro's girlfriend knew the victim had been up late the night before, so she left her to sleep while she went to the store for food, and then returned and made breakfast for the other children.
At about 10:45 a.m., when Castro's girlfriend went to wake up the victim, she realized something was wrong. The victim was lying face up, she had "a lot of mucus coming out of her nose," and she was "very, very cold." She was wet from having urinated. She was breathing, but nonresponsive, despite efforts to wake her up; her eyes opened, but were rolled back so only the white part showed. Castro's girlfriend screamed for Castro to call 911, and he did.
The victim never regained consciousness. She had suffered massive head trauma; the back of her skull was fractured, and she had extensive bleeding and swelling in her brain. There was bruising on the side of her face and on her forehead, in addition to the back of her head. On April 7, 2013, it was determined that efforts to save her had failed and she was brain dead. She was taken off life support, and she died.
At trial, prosecution experts opined that, in the absence of another type of high-impact trauma such as a car accident, the victim's injuries were most likely the result of abuse, specifically, a non-accidental trauma involving both impact and shaking, occurring within no more than about 72 hours of her death. They opined that the injuries were inconsistent with a simple accident, such as a fall. One, an expert in "child abuse pediatric[s]" or "forensic pediatrics," testified that the victim's injuries would likely have rendered her unconscious or at least noticeably impaired within minutes, so they probably were inflicted after the phone call at about midnight on April 6, 2013, during which she had been able to speak coherently.
Castro testified in his own defense, asserting that he did not hit, shake, or otherwise injure the victim. He recalled that a few days before April 5th, 2013, he and the victim had tripped on one another, and the victim fell and hit her forehead. Several defense experts opined that the victim's injuries were consistent with an accidental trauma, and one of them, Dr. Bennett Omalu, opined that the injuries could have occurred days or even weeks earlier than the window of 72 hours proposed by the prosecution's experts. Omalu suggested that the victim could have fainted and fallen backwards, and that her seeming illness in the several days before April 5, 2013, had actually been the early signs of "delayed presentation of brain injury or delayed traumatic brain injury."
Omalu suggested that a fainting spell could have been caused by an enlarged heart, as shown by a notation regarding the weight of her heart in a pathology report. The parties stipulated at trial, however, that a radiologist reviewed a scan taken while the victim was hospitalized immediately before her death, and determined that her heart was not enlarged.
During his testimony, Omalu gave a physical demonstration of how he believed the victim might have fallen, described for the record by defense counsel as follows: "the witness approached the bench, sort of bumped against it, and then fell backward on his back and onto his head on the well of the floor." Shortly thereafter, Omalu requested a recess, stating that he had hit his head "too hard" and was "seeing stars."
A jury found Castro guilty of second degree murder (Pen. Code, § 187, subd. (a), count one) and assault causing the death of a child under eight years old (§ 273ab, subd. (a), count two). The trial court sentenced him to 25 years to life, the statutory sentence for count two.
Undesignated statutory references are to the Penal Code.
This was Castro's third trial; the two previous trials had ended with mistrials, after those juries were unable to reach a verdict.
For count one, the trial court imposed a sentence of 15 years to life, which was suspended pursuant to section 654.
II. DISCUSSION
Castro contends the judgment must be reversed for three reasons: (1) the trial court improperly admitted evidence of two prior uncharged instances of domestic violence committed by Castro against former girlfriends; (2) the trial court erred by instructing the jury with the pattern instruction for general intent crimes, CALCRIM No. 250, given that murder requires proof of specific intent; and (3) the trial court should have granted Castro's motion for a new trial due to alleged juror misconduct, or at least held an evidentiary hearing to "determine the truth and breadth of the misconduct." (Bolding and capitalization altered.). We reject each of these arguments. A. Domestic Violence Evidence
1. Additional Background
Over Castro's objection, the trial court allowed the prosecution to present evidence of two prior uncharged incidents of domestic violence by Castro. The mother of Castro's children testified that in March 2012, Castro pushed her after she confronted him for yelling at their daughter, who had been having a tantrum. About six months later, a restraining order was issued against Castro, based at least in part on this incident and prohibiting contact "except for peaceful communication regarding the children."
Pursuant to its discretion under Evidence Code section 352, the trial court excluded evidence of two other prior uncharged incidents of domestic violence by Castro.
Also, a different former live-in girlfriend of Castro testified about an incident in June 2009. When she attempted to leave their apartment during an argument, he prevented her from doing so by grabbing her from behind by the hair, putting his arm around her neck, and dragging her up a flight of stairs. He pinned her down and choked her with two hands to the point that she could not breathe, then let go and started kicking her in the ribs.
2. Analysis
"Character or propensity evidence, including evidence of a person's prior conduct, is generally inadmissible to prove the person's conduct on a specified occasion." (People v. Disa (2016) 1 Cal.App.5th 654, 670; see Evid. Code, § 1101, subd. (a).) The Legislature has, however, adopted specific exceptions to this rule. Among these exceptions is Evidence Code section 1109, subdivision (a)(1), which "permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes," subject to the court's discretion under Evidence Code section 352. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.)
In its current form, Evidence Code section 1109 defines the term "domestic violence" broadly, to include (with limitations not applicable here) not only acts of violence against an adult spouse or other cohabitant of the defendant, but also against a child who regularly resides in the household. (People v. Dallas (2008) 165 Cal.App.4th 940, 952-953 (Dallas); Evid. Code, § 1109, subd. (d)(3).) Since Castro lived with the victim, there is no question that this is a prosecution for "domestic violence" within the meaning of Evidence Code section 1109, subdivision (a)(1), even though the charged offenses also fall within the definition of "child abuse" under subdivision (a)(3) of the same section. (See Dallas, 165 Cal.App.4th at pp. 942-943 [so holding in similar circumstances].)
More specifically, Evidence Code section 1109, subdivision (d)(3) defines the term "domestic violence" as follows: "'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to [Evidence Code] Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense."
Penal Code section 13700 defines domestic violence as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Id., subd. (b).) The term "cohabitant" as used in the Penal Code has been limited to "'those "'living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy.'"'" (See Dallas, supra, 165 Cal.App.4th at pp. 952-953.) The Family Code's definition, however, extends more broadly, to include anyone who lives in the household. (See Fam. Code §§ 6211 ["cohabitant" defined as used in Fam. Code, § 6209], 6209 ["'Cohabitant' means a person who regularly resides in the household.'"]; see also Dallas, 165 Cal.App.4th at p. 953.)
The incidents described by Castro's former girlfriends also qualify as "domestic violence" within the meaning of Evidence Code section 1109, subdivision (a)(1). Both occurred within five years of the charged offenses, so the broader, Family Code definition applies. (See Evid. Code, § 1109, subd. (a)(1).) Castro's act of pushing the mother of his children was a battery, which can be (and in fact was) enjoined under the Family Code. (See Fam. Code, § 6320, subd. (a); see also People v. Ogle (2010) 185 Cal.App.4th 1138, 1144 ["Family Code section 6211 defines domestic violence to require abuse and Family Code section 6203, subdivision (d) defines 'abuse' to include 'engag[ing] in any behavior that has been or could be enjoined pursuant to [Family Code] Section 6320'"].) Choking and kicking his other former live-in girlfriend also unambiguously qualifies as domestic violence, under any statutory definition of the term. It follows that, subject to exercise of the trial court's discretion pursuant to Evidence Code section 352, the evidence of Castro's "other acts of domestic violence" was admissible pursuant to Evidence Code section 1109.
Since Castro does not expressly raise the issue in his briefing, we need not address at any length whether this decision was an abuse of the trial court's discretion under Evidence Code section 352. We will only note briefly that we find the court's ruling was well within the bounds of reason.
Castro asserts that reading Evidence Code section 1109 to permit "cross-pollination," that is, "allowing evidence of domestic violence against an adult [to be used] in a prosecution for child abuse," would be "beyond any existing holding in the governing case law or any discussion of legislative intent involving the statute." This is simply untrue. In Dallas, the defendant was charged with injuring his girlfriend's nine-month-old son. (Dallas, supra, 165 Cal.App.4th 940, 942.) Pursuant to Evidence Code section 1109, the trial court admitted evidence that the defendant had committed previous acts of domestic violence against a former girlfriend, as well as previous acts of child abuse against that former girlfriend's child. (Dallas, supra, at pp. 942-943, 947-948) After discussing the statutory scheme and the legislative history of Evidence Code section 1109, this court held, among other things, that the trial court "did not err by admitting the evidence of prior acts of domestic violence" against the former girlfriend. (Dallas, at p. 957; see also id. at pp. 942-943 [holding that "because defendant lived with the baby, this was not only a prosecution for "child abuse" . . . but also a prosecution for 'domestic violence' so that prior acts of domestic violence were likewise admissible under Evidence Code section 1009, subdivision (a)(1)"].) Dallas is squarely applicable to the facts of this case, and we find no good reason to depart from our previous analysis. (See also People v. Ogle, supra, 185 Cal.App.4th at p. 1144 [evidence of stalking admissible to prove propensity to commit offense of criminal threats, because statute "unequivocally incorporates the Family Code definition [of "domestic violence"] without limitation"].)
Castro's opening brief discusses Dallas but wrongly asserts: "Nowhere does the court discuss the applicability of prior acts of domestic violence against a child's adult mother, or any other adult, as being admissible under section 1109 to establish a defendant's propensity to harm a child." Castro's appellate counsel apparently missed the entire section of the opinion that does that, as well as the mention of that discussion and holding in the opinion's introduction. (See Dallas, supra, 165 Cal.App.4th at pp. 942-943, 951-957.)
Castro has demonstrated no error in the trial court's decision to admit the evidence of previous uncharged acts of domestic violence. B. Jury Instructions
1. Additional Background
The offense charged here as count two, assault causing the death of a child under eight years old, is a "general intent crime," meaning that the act must be intentional rather than accidental, but proof of other specific intent is not required. (People v. Albritton (1998) 67 Cal.App.4th 647, 658.) Murder, however—here, count one—is a specific intent crime, requiring a finding of either express or implied malice. (§ 188; People v. Blakeley (2000) 23 Cal.4th 82, 87.)
The jury's instructions included CALCRIM No. 250, which is the pattern instruction regarding the "union, or joint operation, of act and wrongful intent" for general intent crimes. As given, the instruction was not limited in applicability only to count two. The jury's instructions did not include CALCRIM No. 251, the analogous instruction for specific intent crimes, or CALCRIM No. 252, designed for use when the charged offenses include both general intent and specific intent crimes. The instructions did, however, include CALCRIM No. 520, which describes all the elements of murder, including the required mental state.
As given, the instruction was as follows: "The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent. For you to find a person guilty of the crimes in this case, that person must not only commit the prohibited act but must do so with wrongful intent.[¶] A person acts with wrongful intent when he intentionally does a prohibited act; however, it is not required that he intend to break the law. The act required is explained in the instruction for that crime."
As given, and in relevant part, the instruction was as follows:
The defendant is charged in Count 1 with murder in violation of Penal Code section 187.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act that caused the death of another person;
AND
2. When the defendant acted, he had a state of mind called malice aforethought;
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with express malice if he unlawfully intended to kill.
The defendant acted with implied malice if:
1. He intentionally committed an act;
2. The natural and probable consequences of the act were dangerous to human life;
3. At the time he acted, he knew his act was dangerous to human life;
AND
4. He deliberately acted with conscious disregard for human life.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not required deliberation or the passage of any particular period of time."
2. Analysis
The People concede that the trial court erred by instructing the jury with CALCRIM No. 250 as to count one, arguing only that the error was harmless. We agree with that view.
"Courts have differed concerning the proper standard for assessing prejudice with respect to this type of error." (People v. Saavedra (2018) 24 Cal.App.5th 605, 615 (Saavedra) [collecting cases].) We need not decide which standard applies, however, because we are persuaded the error was harmless even under the more stringent beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
"'[T]he question [Chapman] instructs the reviewing court to consider is not what effect the . . . error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks . . . to the basis on which "the jury actually rested its verdict." [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" (Saavedra, supra, 24 Cal.App.5th at p. 615 [quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279].) "[W]here a reviewing court concludes beyond a reasonable doubt that the . . . element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.'" (Saavedra, 24 Cal.App.5th at p. 615 [quoting Neder v. United States (1999) 527 U.S. 1, 17].)
We are persuaded that on the facts of this case, CALCRIM No. 520 adequately cured the trial court's error of instructing with CALCRIM No. 250 as to count 1. (See People v. Delgado (2017) 2 Cal.5th 544, 574 ["'"[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole"'"].) CALCRIM No. 520 specifies that the jury may not convict Castro of murder unless it finds he not only committed the act that killed the victim, but that he did so with express or implied malice. It also defines those terms. Additionally, CALCRIM No. 250 does not instruct the jury that general intent is all that is required to convict Castro of murder, or that no additional level of intent or mental state need be considered. To the contrary, read together, the instructions are more readily interpreted as requiring both a finding of general intent (that is, the act that killed the victim was intentional, no matter whether Castro intended to break the law) and a finding that he acted with malice, as defined in CALCRIM No. 520.
Moreover, nothing in the evidence or in the arguments of the parties supports the notion that Castro's murder conviction could have been based on a finding of only general intent, and not specific intent. In that respect, this case is distinguishable on its facts from Ho v. Carey (9th Cir. 2003) 332 F.3d 587 (Ho), a case emphasized by Castro that involved a similar instructional error. In Ho, the defendant conceded that he shot the victim, but claimed to have acted in self-defense. (Id. at pp. 590-591, 593, 595.) A majority of the Ninth Circuit panel found it to be "reasonably likely" that the jury convicted the defendant of second degree murder after only a "finding that he had the general intent to fire his weapon [at the victim]." (Ho, supra, 332 F.3d at p. 595.) Here, in contrast, Castro asserted in both testimony and argument that he did not do anything to cause the victim's injuries, let alone anything intentional. The specific mental state with which Castro acted, assuming a finding that he intentionally committed the acts that injured the victim, was not a contested issue.
Whether the Ho majority's reasoning is persuasive is a separate question, raised by the People in briefing, but which we need not address.
We conclude the instructional error was harmless beyond a reasonable doubt. C. Juror Misconduct
1. Additional Background
After trial but before sentencing, Castro moved for a new trial based on alleged juror misconduct (among other contentions not at issue here). Specifically, Castro alleged that one of the jurors, Juror No. 2, "interjected her experiences as a medic, nurse, and coroner volunteer into the deliberations." According to Castro, Juror No. 2 "attempted to correct some of the medical evidence, as well as [the testimony of one of the defense's experts], based on her own experiences and not the evidence adduced at trial." Additionally, "she told the rest of the jurors that she and her husband, who was an investigator at the Thermal station [of the Riverside Sheriff's Department], saw cases like this all the time, that they were always abuse, and that [the victim] would have still been warm when [Castro's girlfriend] checked her at 2:45 a.m. the morning of April 6." Castro also contended that the other jurors committed misconduct by failing to report Juror No. 2's misconduct.
In support of his motion, Castro submitted two juror questionnaires, styled as declarations executed under penalty of perjury, that had been returned to defense counsel by members of the jury. These documents required a yes or no answer to a series of twelve questions, followed by an opportunity to add any additional comments. The 12 questions were the following:
The trial court sanctioned Castro's counsel for violating Code of Civil Procedure sections 206 and 237 in attempting to obtain such declarations.
(1) "Did the jury foreperson call for a vote before any discussion was had?"
(2) "Did the jury foreperson say he believed Mr. Castro was guilty before any discussion was had?"
(3) "Did [Juror No. 2] say she believed Mr. Castro was guilty before any discussion was had?"
(4) "Did [Juror No. 2] discuss her medic, nursing, or coroner volunteer experience during deliberations?"
(5) "Did [Juror No. 2] express disagreement with some of the medical evidence presented at trial based on her medic, nursing or coroner volunteer experience during deliberations?
(6) "Did [Juror No. 2] express disagreement with some or all of Dr. Omalu's testimony based on her medic, nursing or coroner volunteer experience during deliberations?"
(7) "Did [Juror No. 2] attempt to correct some or all of the medical evidence presented at trial based on her medic, nursing or coroner volunteer experience during deliberations?"
(8) "Did [Juror No. 2] attempt to correct some or all of Dr. Omalu's testimony based on her medic, nursing or coroner volunteer experience during deliberations?"
(9) "Did [Juror No. 2] say her husband was an investigator at the Thermal Station?"
(10) "Did [Juror No. 2] say she or her husband saw this type of cases [sic] all the time based on her medic, nursing or coroner volunteer experience, or his investigator experience, during deliberations?"
(11) "Did juror 2 say [the victim] would have still been warm when [Castro's girlfriend] checked her at 2:45 a.m. on April 6, 2013, based on her medic, nursing or coroner volunteer experience during deliberations?"
(12) "If any of the above occurred during deliberations, did you report it to the judge?"
Juror No. 11 responded by checking "yes" to questions 1, 3, 4, 5, 6, 7, 8, and 10, stating that he did not remember the answer to questions 2, 9, or 11, and responding "no" to question 12. Juror No. 2 responded in greater detail, denying any improper behavior and taking issue with the formulation of the questions.
More specifically, in response to questions 1, 4, and 5, Juror No. 2 checked the boxes for both "yes" and "no," and she checked "no" in response to the remaining questions. Regarding question 1, Juror No. 2 stated: "The jury foreperson did ask for a vote prior to deliberations but several of us jurors told him that per the judge we could not do that without first deliberating and so no we did not vote prior to deliberating first." Regarding question 4, Juror No. 2 stated: "I think I gave them a hypothetical of a strike." Regarding question 5, Juror No. 2 stated: "I did disagree that [the victim] had injury of such magnitude w/o experiencing symptoms per witnesses. Based on my medical training no. Several other jurors expressed this too not just myself. That is when a hypo of a strike was used. I believe I used the example FAST. I used more of the evidence that the child abuse doctor presented. Juror #4 was quite smitten w/ Dr. Omalu because of his degrees and movie in which he is depicted. Myself and the German Gentleman Juror (#?) both told him that degrees really don't say much for a person's character. Juror #4 after deliberations was more concerned about a movie or book deal for himself. He also kept empathizing w/Mr. Castro stating 'that could be me.' The same is true of the young African American Juror #?" Regarding questions 9 and 10, Juror No. 2 stated: "My husband has never been an investigator so no I did not. He does work in Thermal Station. I don't believe that he worked there in 2013. This was said after deliberations were complete and the verdict had been reached. I think I used the words how do you think I feel my husband works at the Thermal Station and I could not discuss this with him." Regarding question 11, Juror No. 2 stated: "I don't even recall the question about [the victim's] temp. How would I know the child's body temp???"
In addition to the two jurors' responses, Castro also included in support of his motion a declaration from his counsel. Counsel's declaration, among other things, recounted the substance of an hour-long telephone conversation he had with another juror, Juror No. 4, that was apparently the basis for the questions sent to all jurors. According to counsel's declaration, however, after the telephone conversation, counsel "lost contact" with Juror No. 4, who did not submit a response to the questionnaire.
2. Analysis
Castro contends that the trial court should have granted his new trial motion because he established prejudicial juror misconduct, in that Juror No. 2 "injected her own medical opinions and expertise into the deliberations, rejecting and correcting the medical expert testimony which mostly favored the side presenting it, thereby creating an outside 'expert' opinion which could not be challenged by the defense, and which may have given the other jurors an avenue to reconcile the conflicting testimony with another perspective, that of [Juror No. 2], and not based on the evidence at trial." In the alternative, he argues the trial court erred by failing to conduct an evidentiary hearing regarding the claim. We reject both the primary and alternative argument.
"The trial court is vested with broad discretion to act upon a motion for new trial." (People v. Dykes (2009) 46 Cal.4th 731, 809.) "On appeal from a ruling denying a new trial motion based on juror misconduct, we defer to the trial court's factual findings if supported by substantial evidence, and exercise our independent judgment on the issue of whether prejudice arose from the misconduct . . . ." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1117; see also People v. Gaines (1962) 204 Cal.App.2d 624, 628 ["The weight and credibility to be attached to affidavits for new trial is for the trial judge"].)
"It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial." (In re Malone (1996) 12 Cal.4th 935, 963.) A juror "should not discuss an opinion explicitly based on specialized information obtained from outside sources," as such an "injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct." (Ibid.) Nevertheless, "if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence." (People v. Steele (2002) 27 Cal.4th 1230, 1266 (Steele).) "Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one's background from one's analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations." (Ibid.)
As our Supreme Court has stated, "[a] fine line exists between using one's background in analyzing the evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information obtained from outside sources,'" which would be "misconduct." (Steele, supra, 27 Cal.4th at p. 1266 [quoting In re Malone, supra, 12 Cal.4th at p. 963].) On this record, we find Steele particularly helpful for delineating where that line should be drawn, and on what side of it this case falls.
In Steele, the trial included presentation of "extensive evidence . . . concerning the nature and extent of defendant's military training and Vietnam experience and its effect, if any, on his crimes . . . ." (Steele, supra, 27 Cal.4th at p. 1265.) Several juror declarations established that four other jurors who had "experience in the military and Vietnam," including by attending the same "counterinsurgency schools" that the defendant claimed to have attended, expressly "'drew upon their experience in the service'" in deliberations regarding that evidence. (Steele, supra, at p. 1259.) Still other jurors with "'medical experience'" drew on that experience in deciding the contested issue of whether a certain test for brain abnormalities was valid for the purposes proposed by defense experts. (Steele, at pp. 1241-1242, 1260.) Both with respect to the military related testimony and the medical testimony, the Supreme Court found that there had been no juror misconduct, reasoning that the evidence "was susceptible of various interpretations" and the "views the jurors allegedly asserted . . . were not contrary to, but came within the range of permissible interpretations of that evidence." (Id. at pp. 1265-1266.)
More specifically, the jurors with military experience expressed during deliberations that, based on their experience, the evidence did not show that defendant had "served in Vietnam at a time when he might have been exposed to combat" (tending to undermine his claim he suffered from post traumatic stress disorder) or that he had "'served as a Seal and learned how to kill from the counterinsurgency schools.'" (Steele, supra, 27 Cal.4th at p. 1259.)
More specifically, the jurors with medical experience opined that the studies purporting to establish the validity of the test were "'inadequate' based on 'what they have learned in their own experience in the medical field,'" with one juror making specific reference to the size of the control group of the study. (Steele, supra, 27 Cal.4th at p. 1260.)
Here, similarly, the evidence does not establish that Juror No. 2 filled an evidentiary void with outside specialized knowledge. Rather, both her own declaration and that of Juror No. 11 demonstrate at most that she drew to some extent on her medical experience in deciding what weight to give to the competing opinions of the parties' experts, and that she shared her reasoning during deliberations. Under Steele, that is not misconduct.
It is settled law that "'a jury verdict may not be impeached by hearsay affidavits.'" (People v. Bryant (2011) 191 Cal.App.4th 1457, 1468.) We therefore do not consider Castro's counsel's declaration recounting his conversation with Juror No. 4.
We also find no abuse of discretion in the trial court's decision to decide Castro's motion for new trial on the papers, rather than holding an evidentiary hearing. (People v. Dykes (2009) 46 Cal.4th 731, 809 ["The trial court has discretion to determine whether to conduct an evidentiary hearing to resolve factual disputes raised by a claim of juror misconduct"].) Such a hearing is appropriate only when the court deems it "'necessary to resolve material, disputed issues of fact,'" and it is inappropriate to use such a hearing "'as a "fishing expedition" to search for possible misconduct.'" (People v. Avila (2006) 38 Cal.4th 491, 604.) An evidentiary hearing should be ordered, therefore, "'only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.'" (Ibid.) Even then, "'an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.'" (Ibid.)
As discussed above, Castro's evidence does not establish a strong possibility that any juror misconduct occurred, let alone prejudicial misconduct, or that there is a material conflict in the evidence that can only be resolved at an evidentiary hearing. (See also Steele, supra, 27 Cal.4th at p. 1267 ["the trial court heard the extensive evidence presented at trial and was well positioned to determine whether the declarations showed misconduct . . . or merely expressions of opinions, informed by the jurors' life experiences, regarding evidence subject to varying interpretations"].) The trial court acted well within the bounds of its discretion when it declined Castro's postverdict request for an evidentiary hearing into allegations of jury misconduct.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.