Opinion
A146096
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ISKENDER CINGOZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51409895)
The relationship between judge and jury is never more fraught than during the jury deliberation process, particularly when, as in this case, the jury has reached an impasse. On the one hand the judge must afford the jury sufficient autonomy to conscientiously reach no verdict; on the other hand it must urge the jury without improper pressure to reach a fair and impartial verdict. Because the judge exercises unusually strong influence over a deadlocked jury, he or she must deal with the tension between these functions with the greatest of care. Unfortunately, that was not done in this case.
Appellant Iskender Cingoz, a 67-year-old citizen who came to the United States from Turkey when he was 26, and has no prior criminal record, was found guilty by a jury of one count of committing sexual acts with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), and five counts of committing lewd acts upon a child under age 14. (§ 1203.066, subd. (a).) All of these offenses were alleged and found to have been committed at the same time on a 10-year-old victim, Jane Doe. For these offenses, appellant was sentenced to 15 years to life in state prison.
All statutory references are to the Penal Code.
This appeal advances three claims: (1) the court's supplemental instruction after it learned the jury was deadlocked was unduly favorable to the prosecution and a prejudicial abuse of discretion; (2) defense counsel provided ineffective assistance of counsel by failing to obtain and introduce available evidence supporting the defense; and (3) newly discovered evidence warranted the granting of appellant's motion for a new trial. As we agree with the first claim it is unnecessary to address the others.
FACTS
The facts of the case developed at an 11-day jury trial illustrate the closeness of the case.
The Prosecution's Case
Jane Doe, who was 10 years old at the time of the offenses and 12 years old at the time of trial, is the daughter of Alejandra M., who was dating appellant's son, Artun Cingoz. Artun has two children, Arm., who is a year younger than Jane, and Ari., who is four years younger than Jane. Jane testified that she and her mother had recently moved to the Bay Area and resided for a few months in appellant's residence in El Cerrito with Artun and his children and appellant and his wife, Nadya. The house had three bedrooms and a basement in which there was a sleeping area with a sofabed and television. (Alejandra and Jane slept in appellant's and his wife's bedroom after the latter moved to the sofabed in the basement.) Artun and his children occupied another bedroom. Appellant regularly took Jane to school and picked her up in the afternoon, and Jane spent time at appellant's house with him and Nadya and Artun and his children. Artun's children also attended Jane's school and appellant also took them to and from school with Jane.
Jane got along with appellant and he never tried to be alone with her. Because the house was small and crowded and the occupants argued, Jane and her mother moved after several months to one of the apartments appellant owned, though Jane continued going to his house after school to play with Arm. and Ari.
Jane testified that on one occasion after she moved out she stayed overnight at appellant's house because her mother and Artun had a date that evening. For the first time, she slept in the living room. At first, with appellant's assistance, Arm. and Ari. put their sleeping bags on the floor alongside her, with their heads near the fireplace. For most of the time they were there, appellant sat on the couch. After about two hours, Arm. and Ari. left the living room because sleeping on the floor was uncomfortable and returned to their bedroom, where they remained for the rest of the night. Jane testified that she fell asleep after they left, but she later testified that she never fell completely asleep because she was in a "different place." At one point, she woke up and saw appellant on the couch "half awake and half asleep." The lights were out but there was a fire in the fireplace.
Jane stated that about half an hour later, while she was half asleep, appellant lay down next to her and began rubbing her back under her shirt, which made her feel uncomfortable. Later, after she turned her back to him, appellant rubbed her chest under her clothes, and then under her hips and in the area between her legs. During this time appellant said nothing. For a short while appellant went into the kitchen. When he returned he lay down again beside her and resumed touching her in the same places. Then he pulled down her pants to her knees and pulled her shirt up above her waist. Mostly he touched her with his hands but he also put his mouth on her breasts and the area between her legs and licked her in both places. While this was happening, appellant said nothing and Jane was turning and tossing and feeling very uncomfortable. Appellant then got up and walked to the kitchen. He returned about five or ten minutes later, put her clothes back on her, and left without saying anything. Eventually Jane fell back asleep.
When Artun returned to the house the next morning to pick Jane up she said nothing to him about what had happened nor did she speak to appellant, with whom she felt uncomfortable and angry. After Artun brought her home she told her mother what had happened and her mother began to cry and phoned Artun, who returned to the apartment. Later that evening, Jane went to the hospital and spoke to a woman there who examined her; she told the woman the truth about what had happened.
Afterward, Artun and his children left appellant's house and moved into the apartment with Jane and her mother. They all lived together for about a year. Jane never again saw appellant or his wife. Jane was unable to recall ever telling Arm. that her accusations about appellant touching her were untrue.
Richard Strang, an inspector for the Alameda County District Attorney's Office, who was a police officer in El Cerrito on December 31, 2012, investigated Jane Doe's case on December 31, 2012. After he received a bag of Jane's clothing from her mother, he put each article in a separate bag and booked them into the district attorney's evidence section. Strang also observed the interview of Jane Doe at the Children's Interview Center (CIC) through a one-way mirror. A videotape of that interview was shown to the jury. ) Officer Strang went to appellant's home on January 10, 2013, placed him under arrest, and collected a DNA sample.
Michael Hernandez, a patrol officer for the City of El Cerrito, responded to a phone call from Jane Doe's mother reporting child abuse. Based on the information she provided, Jane Doe was taken to the regional medical center for an examination by the Sexual Assault Response Team (SART).
The SART interview and physical examination of Jane was conducted about 1:00 a.m. on December 31, 2012, about two days after the event, by Forensic Nurse Examiner Anamaree Rea. When Nurse Rea met Jane in the emergency room, her mother was clinging onto her and crying, while Jane's demeanor was happy and cooperative. During the interview, Jane told her appellant patted and kissed her butt and licked her butt, chest, and private parts. She also told Nurse Rea—contrary to her trial testimony, at which she said appellant never said anything to her—that when appellant finished touching and licking her he told her that "she was now grown up" and asked her "Do you like this?" Jane testified that while appellant was touching and talking to her she felt "as though her brain wasn't working" and "that she was tired and falling asleep."
Based upon what Jane told her, Rea swabbed Jane's breasts, buttocks and vaginal area for potential saliva and took a DNA sample from her. Jane Doe confirmed that since the incident with appellant she had not showered, but she had changed clothes.
After the testimony of Nurse Rea and a short break, the jury watched the 50-minute video of the CIC interview of Jane Doe, which was conducted by Pat Mori on January 8, 2013, about a week after the SART interview and examination.
Jane Doe told Mori that appellant had touched her while she was sleeping at his house, initially with his grandchildren, Arm. and Ari. Her statements to Mori during the CIC interview described much the same touching of her breasts, butt, and genital area that she later described in her trial testimony, but it differed in certain respects. For example, she said during the CIC interview that appellant woke her up when he lay down next to her and started rubbing her back, but at trial she testified that she was awake at that time. During the interview, she said there was no fire in the fireplace of the living room, but said otherwise in her trial testimony. At trial, she said appellant pulled her pants down to above her knees, but she told Mori he pulled them down to her ankles. At trial, she said appellant pulled her shirt up, to the CIC interviewer she said he took her shirt off. At trial, Jane stated that appellant said nothing during the entire period in which he touched and licked her body, but during the CIC interview she said he made several statements during that period: when appellant first touched her he said "you grew a lot," and while touching her later "kept saying open" when he wanted her to spread her legs apart, and said "I have to go" after he finished touching and licking her. At trial, Jane testified that appellant left her briefly to go to the kitchen, speculating that he did so "probably" on the way to his bedroom, but during the CIC interview, she said that, after telling her "I'll be back," he left briefly to check the time on a wall clock in a "mini hallway."
Criminalist Johanna Estrada-Ballardo conducted a DNA analysis to determine whether male DNA was present in the DNA samples obtained during the SART examination, however, the quantities of DNA available to her were less than ideal for the protocols she undertook. She found no nucleated epithelial cells indicating contact with saliva, the medium that transfers such cells. A swab from Jane's left breast contained DNA from a single male contributor that was statistically highly likely to be appellant. Appellant could also be the contributor of DNA found on her right breast, but no statistical analysis was made of that sample. Samples taken from Jane's buttocks and vaginal area were insufficient to produce reliable information, but appellant could be a source of such DNA. Estrada testified that a DNA sample could be transferred by touching fabric, particularly if there was sweat on the recipient's skin. Also, a "secondary" DNA transfer could take place from use of a towel previously used by another person; and that could also happen when the medium was a bed or a toilet seat. Such transfers are most likely of small amounts of DNA, as were found here.
The Defense Case
Appellant testified that after Alejandra M. and Jane moved into his home he took Jane, along with Arm. and Ari., to school each day and picked them up in the afternoon. The house was small and the crowding created tension between Alejandra and his wife, Nadya. After about two months, to ease the tension, appellant provided Alejandra and Jane the use of an empty apartment he owned. Jane was unhappy with the move "because she thought she was going to live longer" in the house.
On the night in question, appellant and his wife ate dinner about 6:30 or 7:00 p.m. and then went downstairs to join the children who were watching television. Artun and Alejandra were late returning from dinner so, around 11:00 p.m., he and his wife felt it best for Jane to stay overnight. The children initially wanted to sleep together in the living room, as they had done in the past, so he and his wife arranged bedding on the floor and then went downstairs to watch television. Appellant testified that there was no fire that night in the fireplace, as Jane testified.
Around midnight, when he and his wife heard Arm. and Ari. fighting, appellant went upstairs and told Arm. to sleep in his bedroom. When things quieted down and Jane and Ari. were "dozing off," appellant returned downstairs to continue watching television with his wife. Eventually he and his wife fell asleep on the sofa bed. Although his wife went upstairs several times that night to use the bathroom, appellant never went back upstairs that night after telling Arm. to sleep in his bedroom.
Appellant was awoken in the morning about 7:30 by Arm., who came downstairs and told appellant he was cold and needed more blankets. At that time, the children were all upstairs and his wife was asleep on the sofa bed next to him. Appellant testified that he did not sleep on the couch in the living room and was never alone with Jane Doe that entire evening.
About 7:30 a.m., when appellant and his wife woke up and went upstairs, Jane was playing with Arm.and Ari. and nothing seemed unusual. As "was normal," she put her head on his shoulder and gave him a hug Appellant and his wife then prepared breakfast for themselves and the children. Artun arrived around 9;00 a.m. to take the children to church. Appellant's testimony on direct examination ended with his statements that he had "never" touched a child in an inappropriate way, had no sexual interest in children, and nothing untoward happened between him and Jane Doe on the evening in question.
Asked by the district attorney why he thought Jane Doe "would make this up," appellant stated there were several reasons. First, he said, she makes up many things and "lies too much." For example, he stated, when she fights with Arm. and Ari. "she goes to mom and says [Arm.] touched my privates. That's happened a few times," although her story "never happened." The district attorney's last question was "beyond just making it up, she didn't have any specific reason to want to say this about you, correct?" Appellant responded "Yes." However, when defense counsel pursued this issue on redirect appellant stated that he had refused a request from Alejandra and Jane to buy them a house. "Like they asked one house from me. Then I said no. I'm not going to give house. You guys have money, supposed to have money. That's why you guys came here. Buy your own house. And then mother got real upset about it, and [Jane Doe] knows all that." On re-cross, when the district attorney asked appellant why Jane Doe would be interested in money, appellant stated as follows: "Okay. Her mom said one day in Mexico every father gives one house to their son. I said this is not Mexico, and that's not my business. And we have a little bit arguing on that. . . . [S]o right after that, my son came asked money to buy the house. I said no." Appellant also said Alejandra had misled him. Initially she said she had a house in Southern California and a job waiting for her here, but it turned out she had neither. "Two months with me no house, no work, nothing, and then she just wanted to stay in my house, plus they're asking one more house." "And she's going to sell that one, come buy her a house, and then pointed out, you guys have money. I buy you [i.e., Artun] a house already. And so at that time it was a little bit tense, and then [Jane Doe] was involved kind of hearing all that stuff." According to appellant, this argument took place at the dinner table shortly before he asked them to leave his house. Jane did not herself participate in the argument but "she was right there" and "heard all this stuff." Appellant agreed with the district attorney that Jane was then only 10 years old, but noted that she was a "sharp 10 years old."
Appellant's testimony is unclear on the matter but it suggests that he had previously purchased for Artun the house he and his children were then living in separately from Alejandra and Jane, but Artun initially joined Alejandra in requesting that he purchase another house large enough to accommodate Artun, Alejandra, and their three children.
Arm., Artun's son and appellant's grandson, was 11 years old at the time of his testimony. After Jane's accusation, Arm. lived for about six months in an apartment with his father, sister, Jane, and Alejandra. During that time, no one except Jane would talk to him about the reason he was not living with his grandfather. After they had been living in the apartment for a few months and while he and Jane were in the living room having a snack, Jane told him he wasn't living with appellant because she told people he committed "child abuse," which she said "she made up" in order "to get back" at him, "like revenge." This revelation "shocked" Arm., and made him "angry" and "speechless."
The only person Arm. told about Jane's statements was his father; he didn't tell others because he was "worried" that "it might start a fight" between Artun and Alejandra. Asked whether he was saying this because he wanted to help his father or grandfather, Arm. replied that he said it "[b]ecause she said it to me." Arm. also testified that there had been other times when Jane lied about things he knew to be untrue. He usually did not tell his father about this before Artun and Alejandra separated because he "was worried that they would start fighting," but he did tell Artun after they were separated.
As the prosecutor stated to the court, the parties stipulated that, if called to testify, Kent Brezee, a defense investigator, "would testify that [Arm.] told him that a week or so after the incident, [Jane Doe] came into his room and said that she had made it [i.e., her accusations] up. [Arm.] also told him that she had told her mom, and her mom believed her. [Arm.] didn't say anything. . . . [¶] In addition, if recalled to testify, Artun Cingoz would testify that [Arm.] told him that [Jane Doe] had come into his room and said that she had lied and that he better not tell, or she would break all of his toys."
The stipulation was also written up, marked as "People's Exhibit 11," received in evidence by the court, and a copy provided the jury.
Nadya Cingoz, appellant's wife, testified that Jane and appellant consistently interacted as if she was his granddaughter. The night of the incident was the first time Jane Doe slept at their house without her mother present. During that night, Nadya and appellant slept on the sofa bed in the television room in the basement. Alejandra and Jane were not living in her and appellant's bedroom upstairs at that time, but Nadya and appellant slept in the television room that night because they fell asleep there while watching Turkish programs on the satellite television. Earlier, after Arm., Ari., and Jane Doe finished watching a DVD downstairs on a small device, all three went upstairs again, and began sleeping together in the living room.
Nadya testified that every night she goes to the bathroom "at least three or four times," and believes she did so on the night in question. During the times she went upstairs to use the bathroom, she saw children sleeping on the floor. Nadya did not testify that she saw Ari. sleeping on the floor of the living room when she went upstairs, but she did state remembering that Ari. "was upstairs sleeping all night" and never came downstairs, as Arm. once did to get a blanket. She never saw her husband upstairs after the children went to bed. She was sure about this because "[w]henever I go upstairs, he's really loud. He snores. So you could hear him, he was downstairs."
In the morning when the children woke up, Jane came downstairs and gave appellant a hug while he was on the computer. Jane was "happy and smiling" when Artun came to pick her up with the other children.
During her 43 years of marriage to appellant Nadya never saw him do anything that would make her think he had a sexual interest in children. His interactions with children have always been normal, and he has never exhibited any interest in pornography or movies that depict children.
Asked whether during the year and a half that she knew Jane Doe she developed an opinion as to whether she was a truthful person, Nadya stated that Jane was not a truthful person. As an example she said Jane "would be taking something, and then she would say that she had not taken it."
On cross-examination the district attorney asked Nadya why she and appellant were sleeping downstairs on the night in question, since Alejandra and Jane had previously moved out of the house and were no longer using their bedroom. She answered that they had a satellite television downstairs "that shows the Turkish channels, and we [were] looking at that," and after a while fell asleep on the sofabed there instead of returning to their bedroom. Asked whether she was "kind of dozing in and out for that whole night," Nadya answered "yes," explaining that she was able to fall asleep but woke up frequently because "I had to go to the bathroom up and down many times" sometimes because "I get thirsty." When Arm. came downstairs she had been "dozing off," but she woke up when he came down and began talking to appellant about a blanket.
Artun Cingoz, appellant's son and the father of Arm. and Ari., testified that he met Alejandra M. in 2011 online. She lived in Los Angeles with her daughter, Jane, and moved to the Bay Area in 2012 "so we could start our lives together." Because she didn't have anywhere else to stay, Alejandra and Jane moved into his father's house. The understanding was that when Alejandra got a job, she and Artun and their children would move out together to another place and "start our own life together," although it turned out that Alejandra and Jane lived in appellant's house only "a month or two," and then moved to one of his father's apartments. When Alejandra and Jane moved in, appellant and his wife gave them their bedroom and moved downstairs. Artun and his two children occupied another bedroom upstairs. Appellant acted as a "second dad" to all three of the children in the house. He often observed his father interact with Jane and his own children, and also with their friends who often visited the house on "play dates." Artun never saw anything inappropriate in his father's relationship with Jane. After Alejandra and Jane moved out the daily routine stayed the same. Appellant would take the children to school and bring them home and watch them there until Artun came home, and then the children would return to their own homes.
On the night of December 29, 2012, Artun and Alejandra went to his best friend's birthday party and left the kids at his father's house around 7:00 p.m. When he returned to the house around 11:00 p.m., his father was downstairs watching television. His mother was also downstairs asleep on the couch and the children were asleep upstairs. As everything seemed "good," he told his father he would return in the morning to pick them up and went to Alejandra's apartment. At that time, Artun was "half living there and half living with [his] dad." Artun returned around 7:30 a.m. to pick the children up. Jane did not seem upset in any way and hugged his dad and mother. Jane also seemed fine on the drive back to her mother's apartment.
The next time Artun saw Jane, which was about two hours after he dropped her off, she was "upset and crying," telling him that his father "had touched her." He and Alejandra then spent 11 hours trying to figure out what to do "because we couldn't believe it." Deciding that "[i]f the child says something, it's by law, you have to report it," Alejandra "called it in and reported it." Artun did not see his father for about two weeks. He and Alejandra and their children moved into a house for a couple of weeks. Artun and Alejandra "split up" at the end of 2013. Before they broke up, Artun's mother "picked up the kids and help[ed] out." Artun testified that after the accusation against his father, he didn't have much contact with his father, not "because I didn't want to see him, but because of the accusations," as he feared his ex-wife might exploit the situation to deny him custody of his children. Artun emphasized that this was the only reason he limited his and his children's contact with appellant, and that "otherwise I would send them there tomorrow."
Artun stated that he had never seen his father act inappropriately with a child and, other than Jane's accusation, had never heard anyone suggest he had ever done anything inappropriate with a child. Asked whether he had ever seen "any pornographic stuff" in his father's house or on his computer during the many years he lived there, Artun said he had not, and noted that he and his father often used each other's computers.
Asked on direct whether he had an opinion as to Jane Doe's "truthfulness," Artun stated: "She does lie." The district attorney returned to this subject on cross-examination, asking Artun whether he would characterize those lies as "minor lies or big lies," Artun answered "Lies are lies," but guessed "they would be minor lies."
Maral Kismetian, appellant's niece, moved to the United States from Turkey when she was 14 to attend high school. Appellant was then her "primary guardian," and lived across the street from her grandparents. Until she became 18 she slept at appellant's house almost every weekend because she was friendly with his grandchildren. Maral testified that appellant was a "loving and caring" person who often met "[w]ith my church's youth organization, he was our parish council liaison, so we had evening retreats where we would all sleep together, and some of the ages would be about 11 and up, and he would be there chaperoning all of us . . . . I've never seen him do anything inappropriate with anybody."
John Dahlberg, an attorney and former Oakland reserve police officer, has known appellant for 12 to 15 years as both are members of the same church and fraternal organization. Dahlberg has socialized with appellant and knows members of his family. Appellant has a reputation for veracity among members of the church and fraternal organization, and based on his personal interactions with appellant, Dahlberg considers him an honest and trustworthy person.
Brian Abbott, a licensed clinical psychologist who regularly conducts forensic evaluations of sex offenders, was allowed by the court to testify as an expert with respect to the "psychological disposition of sexual deviance, specifically sexual attraction to children." After administering the Personality Assessment Inventory (PAI), a personality and psychological test to measure sexual interest in children (The Abel Assessment for Sexual Interests, 3d ed.), Dr. Abbott conducted a semi-structured clinical interview of appellant that lasted several hours, and also conducted a 45-minute interview with Artun to obtain additional background information. Dr. Abbott also reviewed the El Cerrito Police Department report on appellant's offense and the information filed by the district attorney specifying the offenses with which appellant was charged. After considering all of the tests and interviews he conducted and the additional information he gathered, Dr. Abbott delivered the following opinions:
First, that appellant "has a normal personality function. He did not evidence any type of maladaptive personality traits, both by the available history that I had on him, as well as a . . . [PAI] test."
Second, that appellant "did not evidence any type of maladaptive personality traits."
Third, that appellant does not show "any signs of sexual deviance;" specifically, Dr. Abbott determined that appellant has "no clinically significant sexual interest in prepubescent females."
Finally, Dr. Abbott concluded that it was "unlikely" appellant committed the charged sexual offenses.
The Conduct of the Trial Court After Being Informed the Jury Was Deadlocked
At the end of the first day of jury deliberations the court was informed that the jury was unable to reach a verdict.
The following morning the jury was brought into the courtroom and, without any on-the-record discussion with counsel about what would transpire, the court immediately addressed the entire jury, stating as follows:
"THE COURT: So yesterday at approximately 4:00 o'clock, the court received a note from the foreperson (Juror No. 5). . . . And it said that you were split as to all the counts, so that means Counts 1 through 6, correct? You're unable to reach a verdict, and you didn't think minds could be changed, and you wanted to know the next process, correct?
"JUROR NO. 5: Correct.
"THE COURT: Is that correct?
"THE JURORS: Yes.
"THE COURT: So I had all night to think about it, and you had all night to think about it. So let me start with this:
"I looked up the word 'deliberation,' I want to read to you the definition of 'deliberation.' There are two definitions:
"1. Long and careful consideration or discussion.
"2. Slow and careful movement or thought.
"I sent the jury out yesterday at 10:00 . . . . You broke at noon. You came back at 1:30. I received the note at 4:00 o'clock. So that's approximately four hours. That is not long and careful consideration or discussion. That is not slow and careful movement or thought. Four hours is not enough time to say that you've deliberated. And when the court says 'deliberate,' . . . you said what do you think the ultimate answer is? It means that you've talked about the evidence, that you've considered all of the evidence, that you've discussed it.
"And I then went through and made a list of all the witnesses. I'm not going to go through all of them, but one, two, three, four, five, six, seven, eight, nine. There were nine witnesses. There was an expert in DNA. There was a doctor called by the defense counsel]. There were two minor victims. Four hours. There's no way you could have careful consideration and discussion of the evidence. There were approximately 13 exhibits that were moved into evidence and are evidence, one of those exhibits being the CIC interview. You don't have a transcript, and you didn't request a computer to watch it, so there's a piece of evidence right there I know was not discussed and was not considered.
"So when you ask the court what's the next process, I don't think you started the process, because the process is to go through the evidence, to consider the evidence, to talk about the evidence.
"I'm reminded of elementary school. We all took math, remember? Math. Algebra. And I was always told by my teacher that's nice you have an answer, but you need to show your work. It's about the process of getting the answer. And so I think you're still at the process.
"[Juror No. 5], you're the foreperson. There are different ways that you can deliberate, and it's not my job to tell you how to deliberate, but you may want to try what do you agree upon and then figure out what you don't agree with, and then what can the court do to assist you on the areas of disagreement, or have jurors argue their opposite view. If they hold one viewpoint strongly, have them argue the other side. There are different ways that you can employ deliberation, but you need to go back there, and you need to do the process. And if the court can help you as far as further instruction on the law, potentially further argument from the attorneys, readback, the ability to look and hear all the evidence that you have, absolutely send a note out, and the court is here to assist you. But from what I'm—I'm going to leave it at that, so that's my instruction for this morning."
At 9:23 a.m. the court directed the bailiff to take jurors back to the jury room to continue deliberating."
At that point the trial judge told counsel to "[s]tay close because we're probably going to get a note this morning." Sure enough, at 9:35 a.m., 12 minutes later, the jury requested in writing a DVD of the CIC interview of Jane Doe and a readback of the testimony of the criminalist, Johanna Estrada-Ballardo, regarding DNA. At 11:49, the readback of the criminalist's testimony concluded, and the jury broke for lunch shortly before noon. At 1:03 p.m., the jury resumed deliberations and at 3:39 p.m., the jury reached a verdict finding appellant guilty of all of the charges.
On July 24, shortly before appellant was sentenced, new counsel for appellant moved for a new trial on the grounds that (1) the supplemental instruction just quoted constituted a comment on the evidence that was plagued by multiple procedural and substantive errors; (2) appellant was deprived of the effective assistance of counsel in that defense counsel sought the admission of evidence undermining the prosecution's central premise that Jane had no reason to make false accusations, but failed to fulfill that tactical objective due to his deficient performance; and (3) new exculpatory evidence. The trial court denied the motion and appellant has reached the same three contentions on appeal. As noted, the meritoriousness of the initial claim renders it unnecessary to address the others.
This claim was based heavily on prior counsel's failure to show the admissibility of evidence of prior claims by her mother that Jane Doe had been sexually molested. At an in limine hearing, prior counsel agreed with the court that this evidence related only to the mother's conduct, not that of Jane Doe, and failed to consider the possibility that Jane may not have made such allegations or that her knowledge of her mother's claims may have influenced her to make such allegations against appellant. Additionally, prior counsel knew that Peggy Provansal, a neighbor of Jane and her mother for four years, had reported that Jane's mother made a false molestation claim involving Jane Doe against Jane's father during divorce proceedings, and the mother had also accused an eight year old female friend of Jane of making sexual advances on Jane, but defense counsel failed to obtain a declaration of Provansal. (Provansal's declaration was attached to appellant's motion for new trial.)
This claim was based on a polygraph examination of appellant conducted on February 25, 2013, at the request of an attorney who represented appellant before trial counsel entered the case. The polygraph examiner asked appellant questions directly relevant to the accusations made against him by Jane Doe, and the examiner was unequivocal in his conclusion that appellant's denial of the accusations was truthful.
DISCUSSION
In People v. Cook (1983) 33 Cal.3d 400 (Cook) a bare majority of our Supreme Court held that judicial "[c]omment [on the evidence] at a time when the jury is deadlocked is so likely to invade the jury's province and control its verdict that such comment must be deemed erroneous." (Id. at p. 413.) Three years later, in People v. Rodriguez (1986) 42 Cal.3d 730, again by a bare majority, the Supreme Court overruled Cook, insofar as it forbid all judicial comment on the evidence to a deadlocked jury. (Rodriguez, at p. 770.)
However, Justice Grodin, the author of the majority opinion in People v. Rodriguez, supra, 42 Cal.3d 730, made clear that although the majority would allow judicial comment on the evidence to a deadlocked jury, "we would not take the risk that one or more members of a deadlocked jury were influenced to reconsider their views or abandon reasonable doubts by judicial comments which had not been 'rigorously [scrutinized]' for 'scrupulous' fairness." (Ibid.)
As we shall explain, the comment on the evidence made in this case cannot survive such rigorous scrutiny.
Appellant claims, and we agree, that the supplemental instruction included an unbalanced and unfair comment on the evidence of which counsel had no prior notice and no opportunity to object to. Furthermore, as we later discuss, the court failed to give required instructions concerning jurors' right to disregard or give no weight to any or all of the court's comments on the evidence, and that the jury was not required to reach a verdict. The result of these failures to instruct enhanced the likelihood the verdict in this case was influenced by the court's complaint that the jury had not adequately discussed and considered evidence introduced and heavily relied upon by the prosecution.
I.
The Supplemental Instruction Commented on the Evidence in an
Unbalanced Manner that Invaded the Province of the Jury
As our Supreme Court has repeatedly made clear, " 'judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power. [Citation.]' [Citations.]" (People v. Proctor (1992) 4 Cal.4th 499, 542.) Although a judge is not required to comment on all of the evidence, he or she should be cautious in exercising the comment power "with a view to protecting the rights of the defendant," (id. at p. 557) and it is error where " 'in the guise privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power." (Id. at p. 542.)
Where a judge comments on the evidence, he or she has a sua sponte duty to instruct under CALCRIM No. 3530 that the jury should not take what he or she said as an indication of what the court thinks about the evidence or what the verdict should be, and that jurors are the sole judges of the evidence and believability of witnesses, and the jury may disregard the court's comments.
That instruction was not given in this case because the court believed its supplemental instruction did not include any "comment on the evidence." Relying on the dictionary definition of the noun "comment" set forth, among others, in a footnote in People v. Friend (1958) 50 Cal.2d 570, 576, footnote 3, reversed on other grounds in Cook, supra, 33 Cal.3d at page 413, footnote 13, viz., " '[c]omment applies to a remark, or an observation made in criticism, in interpretation, or in elucidation of something. . . .' " The court stated in its ruling denying appellant's motion for a new trial that it "did not comment on the evidence but merely summarized all of the evidence that the jury had heard."
We do not accept that characterization. First of all, even indulging the questionable use of the definition of "comment" adopted by the trial court, the supplemental instruction's statement that the CIC interview of Jane Doe "was not discussed and was not considered," does constitute "a remark or an observation made in criticism, in interpretation, or in elucidation of something." (People v. Friend, supra, 50 Cal.2d at p. 576, fn. 3.) Moreover, the supplemental instruction did not merely "summarize" the evidence before the jury. In criticizing the jury for failing to carefully consider and discuss evidence the court considered important, the court told jurors "you didn't request a computer to watch [a DVD of the CIC interview], so there's a piece of evidence right there I know was not discussed and was not considered." This unwarranted chastisement was likely very consequential.
The CIC interview and the expert testimony regarding DNA was the evidence the district attorney considered most crucial to the prosecution's case. After preliminary remarks, the district attorney's closing argument to the jury turned to "the evidence in this case." Rhetorically asking "What do we have?" the district attorney pointed to two things: the CIC interview of Jane Doe and the expert testimony about DNA, which he described as "the primary things that you can rely on to help you arrive at the conclusion that the defendant in this case is guilty as charged." (Italics added.) According to the district attorney, the portions of the CIC interview he replayed "give context to how to help you look at the case, to how to help you look at [Jane Doe's] perspective on things, and they'll help you evaluate the other evidence in the case."
By far the major portion of the district attorney's closing statement to the jury focused on the prosecution's interpretation and analysis of precisely the evidence the trial court criticized the jury for inadequately considering. The singling out of the prosecution's most important evidence as warranting further discussion and consideration was error.
The court's statement that it knew the CIC interview "was not discussed and was not considered," was based on the assertion that "you don't have a transcript [of the interview], and you didn't request a computer to watch it." This is a curious statement. The jury had watched a DVD of the entire CIC interview of Jane Doe during the prosecution's case and, as we have said, the district attorney re-played portions of the CIC interview he believed most helpful to the prosecution during his closing argument. The jury's failure to request another opportunity to view the CIC interview provides no rational basis for the court's conclusion that the jury had failed to discuss or consider that evidence.
A reasonable juror aware of the prominence during trial of the CIC interview might well infer from the court's assertion that it had not been "discussed and was not considered" the court's belief that the jury's impasse resulted from some jurors giving insufficient weight to the prosecution's most important evidence. Unsurprisingly, only 12 minutes after hearing the supplemental instruction and returning to its deliberations the jury requested a DVD of the CIC interview of Jane Doe and a readback of the criminalist's testimony about DNA, and shortly thereafter returned a verdict convicting appellant of all of the alleged offenses.
The court's categorical statement that "[f]our hours is not enough time to say that you've deliberated" is also questionable. Jury verdicts returned in four hours or less are not uncommon. Indeed, if the jury in this case had reached its verdict in four hours it is impossible to think appellant could have successfully requested that it be set aside on the ground jurors could not have adequately deliberated in that period of time. There is simply no legal authority for the proposition that, in a case such as this, a jury cannot adequately deliberate in four hours. As the Supreme Court has said, "it is error where in the guise of commenting on the evidence the judge makes statements which contain an erroneous view of the applicable law." (People v. Brock (1967) 66 Cal.2d 645, 650, overruled on other grounds in Cook, supra, 33 Cal.3d at p. 413, fn. 13.)
II.
Counsel Were Not Given Prior Notice and
an Opportunity to Object to the Court's Comments
As earlier noted, the court delivered its supplemental instruction immediately after it entered the courtroom without having previously disclosed to counsel what it proposed to say or soliciting the views of counsel. The court invited comments from counsel only after the jury had heard the instructions and left the courtroom to resume its deliberations.
The rule requiring prior notification to counsel " 'is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case. [Citation.]' " (People v. Wright (1990) 52 Cal.3d 367, 402 (Wright), disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) In People v. Hawthorne (1992) 4 Cal.4th 43, the Supreme Court considered cases in which the trial court gave the jury additional instructions on substantive matters and counsel "could have taken some action on the defendant's behalf to amplify, clarify, or modify the supplemental instruction or procedure" but for the trial court's "failure to give notice or afford an opportunity to respond," which the Supreme Court described as "statutory as well as constitutional error." (Hawthorne, at pp. 68-69.)
It is true, as the trial court pointed out in denying appellant's motion for a new trial, that in Wright and Hawthorne and some of the opinions they cited, the courts instructed the juries in the absence of counsel, which was not the case here. However, the gravamen of the opinions is that the consequence of the court's conduct was to deprive counsel of notice of the proposed instruction and an opportunity to take "some action on the defendant's behalf to amplify, clarify, or modify the supplemental instruction or procedure." (People v. Hawthorne, supra, 52 Cal.3d at p. 402.) That deficiency is as present here as it was in Wright and Hawthorne. Because defense counsel was provided no clue as to what the trial judge was about to tell the jury immediately after it entered the courtroom, and was afforded no opportunity to object at any time before or after the instruction was given, it was as if counsel was not present. Had defense counsel been apprised of what the trial court proposed say to the jury he could have urged the court not to single out prosecution evidence as requiring renewed consideration, and also objected to the reference to Jane Doe as a "victim" and inexplicably referring "to two minor victims," which may have led jurors to think the court knew something very detrimental to appellant that had been withheld from them.
As appellant points out, the failure to provide counsel an opportunity to object before the instruction was given bars a claim that appellant failed to preserve a claim of instructional error. Moreover, as stated in Penal Code section 1259, an appellate court may "review any instruction, given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby," as is the case here.
Had he known that the court was not planning to instruct the jury with CALCRIM No. 3530, defense counsel could have also informed the court of the statutory and constitutional necessity to instruct the jury on the proper weight to be given the court's comments, and that the jury does not need to reach a verdict, the issue to which we now turn.
III.
The Court's Failure to Instruct With CALCRIM No. 3530
and to Inform the Jury That it Need Not Reach a Verdict ,
Enhanced the Likelihood the Court Improperly Influenced the Jury
When a court comments on the evidence it has a sua sponte duty to instruct the jury pursuant to CALCRIM No. 3530. That instruction tells jurors the following:
"Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, or what your verdict should be. [¶] Now, I will comment on the evidence only to help you decide the issues in this case. [¶] However, it is not my role to tell you what your verdict should be. You are the sole judges of the evidence and believability of witnesses. It is up to you and you alone to decide the issues in this case. You may disregard any or all of my comments about the evidence or give them whatever weight you believe is appropriate."
The statement in CALCRIM that the court has a sua sponte duty to give this instruction when commenting on the evidence relies on sections 1197 and 1093, subdivision (f), People v. Proctor, supra, 4 Cal.4th at page 543, and People v. Brock, supra, 66 Cal.2d at page 651, overruled on other grounds in Cook, supra, 33 Cal.3d at page 413, footnote 13. The court had the duty to give CALCRIM No. 3530 when commenting on the evidence even though, prior to deliberations it gave CALCRIM No. 3550, a much longer instruction, which includes the statement "Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." --------
Because the effect of a court's comments on the evidence is likely to be most pronounced when, as here, the jury is deadlocked, it is not enough for the court to instruct under CALCRIM No. 3530. Jurors must additionally be told that they are not compelled to return a verdict at all.
In People v. Price (1991) 1 Cal.4th 324, the defendant complained that the trial court erred in failing to accept the jurors' opinion that they had reached an impasse by, among other things, "implying that a verdict would have to be reached at some point." According to the defendant, the court improperly coerced the jury to reach a verdict, in violation of the defendant's rights to an impartial jury, due process of law, and a reliable determination of penalty. A unanimous Supreme Court rejected the contention; however, the court acknowledged the special need for judicial caution when dealing with a deadlocked jury, stating as follows: "When a jury indicates it has reached an impasse, a trial court that directs further deliberations must exercise great care to avoid the impression that jurors should abandon their independent judgment 'in favor of considerations of compromise and expediency.' [Citations.] Here, the trial court in its remarks to the jury properly stressed that it was not attempting to coerce the jury in any way and if the weekend respite did not provide a fresh prospective, the jury should feel free to again report an impasse." (Id. at p. 467.) Similarly, in People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 462, the court rejected a similar claim of coercion after a jury announced it was deadlocked because the trial court "was careful to present a balanced approach and explicitly left open the possibility that agreement might not be reached."
Nothing in the supplemental instruction given the deadlocked jury in this case expressly or even impliedly indicated to jurors that they were not compelled to reach a verdict. The possibility therefore exists that a juror disposed to vote in favor of appellant might have changed his or her vote to avoid a prolonged proceeding. That is not a possibility our criminal justice system is disposed to indulge.
IV.
The Court's Errors Were Prejudicial
As indicated, the court made five mistakes: (1) the undue emphasis placed by its supplemental instruction on prosecution evidence; (2) the erroneous reference in the instruction to "two victims" of appellant's alleged offenses; (3) failure to provide defense counsel prior notice of and an opportunity to object to the supplemental instruction, (4) failure to give CALCRIM No. 3530; and (4) failure of the court to inform the jury it was not compelled to reach a verdict.
These errors cannot be deemed harmless, because the evidence of appellant's guilt is far from overwhelming.
The traces of appellant's DNA found on areas of Jane Doe's body were scant, the quality was well below that considered optimal for testing, and the trace amounts found could have resulted from secondary transfers from a bed, a towel, a toilet seat, or other sources. Also, the criminalist was unable to find sufficient amounts of amlyase and nucleated epithelial cells to indicate the presence of saliva on the portions of Jane Doe's body she said were licked by appellant.
CONCLUSION
Additionally, the defense provided evidence that appellant had never previously engaged in inappropriate sexual conduct with anyone, had never previously shown any sexual interest in Jane Doe or any other prepubescent girls, and the testimony of a clinical psychiatrist expert in the forensic evaluation of sex offenders that appellant has "no significant interest in prepubescent females," and did not likely commit the charged offenses. The testimony of defense witnesses also contradicted Jane Doe's testimony in certain significant respects, such as appellant's presence in the living room while the events she described assertedly took place, and that Jane Doe may have had a motive to lie. We therefore cannot say the errors were harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 20-21; Wright, supra, 52 Cal.3d at p. 403.)
DISPOSITION
For the foregoing reasons, the judgment of conviction is reversed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.