Opinion
A148005
06-01-2018
THE PEOPLE, Plaintiff and Respondent, v. LANCE EDWIN EVANS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-655860)
Appellant Lance Edwin Evans was convicted, following a jury trial, of two counts of evading a peace officer, driving under the influence of alcohol, driving with a blood alcohol content of 0.08 percent or greater, driving without a valid driver's license, and resisting a peace officer. On appeal, he contends (1) the trial court erred when it denied his motion for a mistrial based on a police officer's use of the irrelevant and inflammatory word "hostage" during his testimony; (2) substantial evidence does not support any of his convictions; and (3) the court should have held an evidentiary hearing to address his claim of bailiff misconduct. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On December 4, 2015, appellant was charged by first amended information with evading a peace officer while driving against traffic (Veh. Code, § 2800.4—count 1); evading a peace officer with willful disregard for the safety of persons and property (§ 2800.2, subd. (a)—count 2); driving under the influence of alcohol (§ 23152, subd. (a)—count 3); driving with a blood alcohol content of 0.08 percent or greater (§ 23152, subd. (b)—count 4); leaving the scene of an accident resulting in property damage (§ 2002, subd. (a)—count 5); driving without a valid driver's license (§ 12500, subd. (a)—count 6); and resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)—count 7). The information alleged, as to counts 3 and 4, that appellant refused to take a chemical test to determine his blood alcohol level in violation of section 23556, subdivision (b)(3) & (b)(4). The information further alleged that appellant had served two prior prison terms. (Pen. Code, § 667.5.)
All further statutory references are to the Vehicle Code unless otherwise indicated.
Appellant had previously entered a plea of no contest to some counts set forth in a first amended complaint, but the trial court had later granted his motion to withdraw that plea and reinstate all counts. The court also struck a prior out of state strike allegation.
On January 22, 2016, a jury found appellant guilty of all counts except count 5, upon which it could not reach a verdict. It also found true the allegations that he refused to submit to a chemical test. The court declared a mistrial as to count 5.
On February 11, 2016, the court denied appellant's motion for a new trial and sentenced him to a term of three years in state prison on count 2. The court stayed sentencing on counts 1, 3, 4, 6, and 7 pursuant to Penal Code section 654 and did not impose the prior prison term enhancements.
FACTUAL BACKGROUND
On September 5, 2014, approximately 10:00 p.m., A. Gross was walking across the street in her neighborhood of Santa Rosa when a big red truck with tinted windows ran a red light and swerved to avoid hitting her. The truck was going "very fast and out of control." Gross saw the truck hit three cars parked on the side of the road and "just [keep] going." She then heard sirens.
Another witness, N. Craft, testified that on the night of September 5, 2014, he also saw "a big truck barreling towards" him. The truck was swerving back and forth and it did not seem like the driver was "in total control." Craft moved out of the way and then saw the truck swerve and hit a few parked cars before turning around and driving away very fast.
Santa Rosa Police Sergeant Ryan Corcoran testified that at 10:16 p.m. on September 5, 2014, he received a call from dispatch in which he "heard what [he] thought would be a domestic violence incident and it included a female that was trying to get out of the passenger seat of a [red] truck driven by a male." Corcoran subsequently spotted the truck, with its headlights off. As he attempted to catch up with the truck, it ran a red light and accelerated away, eventually running another red light. Corcoran followed the truck into a Sears parking lot, at which point he activated the emergency lights on his marked patrol car because he planned to do a traffic stop in the parking lot. The truck quickly spun around and came back towards Corcoran. As the truck went by at a distance of three or four feet, he was able to see "clearly" through the driver's side window that the driver was male. He could not see whether there was also a passenger inside. The truck then left the parking lot. Corcoran activated his siren and advised dispatch that he was going to pursue the vehicle. The truck ran two stop signs and went into oncoming traffic lanes as it sped away, eventually cutting off another vehicle and heading onto Highway 101. At that point, one or two other patrol vehicles joined Corcoran in the pursuit.
The court instructed the jury that this evidence regarding the information the officer received was being offered not for the truth of the matter asserted, but as to "what this officer did in response to receiving this information."
Corcoran continued to follow the truck as it exited Highway 101 onto River Road and followed it until the driver eventually exited the truck. As Officers Clark and Matthies went in pursuit of the driver, Corcoran went up to the driver's side of the truck, while Officer White went to the passenger side. Corcoran saw a female exiting the truck on the passenger side, where she was contacted by White.
Corcoran estimated that his pursuit of the truck lasted about 31 minutes and covered over 31 miles.
Santa Rosa Police Officer Michael Clark testified that he also participated in the pursuit of the red truck. He heard from dispatch that there was "some sort of domestic-related incident where a woman was being pulled into a truck." Based on dispatch information about the truck's location, Clark waited on a Highway 101 onramp for the truck, which he saw go by on the freeway, traveling over 100 miles per hour. The truck exited the freeway at River Road, a two-lane road, and traveled at 70 miles per hour, 30 miles over the speed limit, on the wrong side of the road to pass slower traffic. When asked what was going through his mind at this point in the pursuit, Clark testified that he "didn't know if there was a hostage in the vehicle based on the earlier report of somebody being pulled into the vehicle."
The trial court gave the same limiting instruction to the jury that it gave regarding Sergeant Corcoran's similar testimony.
The truck hit a spike strip that had been deployed by the Sonoma County Sheriff's Department, the purpose of which was to disable the tires of the vehicle. The truck, however, did not stop even though the right front tire had come off. The truck slowed down as it began to give off smoke and debris and the left front tire also came off, but the driver continued to drive on the rims. Finally, Santa Rosa Police Officer Brandon Matthies attempted a spike maneuver, which is a patrol intervention technique in which Matthies "moved his vehicle up so that he could make contact with the left rear quarter panel of the truck with the right front fender of his vehicle." The goal was to cause the rear end of the truck to lose traction and spin out, but the maneuver was unsuccessful. However, the suspect opened the driver's door and exited the vehicle while it was still rolling. Clark identified appellant at trial as the suspect who exited the truck.
After appellant exited the truck, he slipped and fell and Clark could not see where he had gone. Clark was concerned because appellant had not been searched and Clark did not know "all the crimes he could potentially be involved with." Clark therefore drew his gun as he exited his patrol vehicle and saw a drainage culvert. Appellant was in the culvert running away. Clark ran along the road, parallel to appellant in the culvert, yelling for appellant "to stop and get on the ground." Appellant continued running, then tried to leap out of the culvert.
Clark holstered his weapon and pulled out his collapsible baton. He expanded the baton and swung it, catching appellant on the left elbow. He was attempting to get appellant to stop resisting so that the officers could get him handcuffed and into custody. Clark was concerned for his own safety at that point, given that appellant had been fleeing and was now cornered. It was dark out, and as Clark swung the baton, he stepped off the edge of the road into the culvert; appellant also fell back into the culvert, which was about five feet below. Clark landed on his back, as did appellant. Appellant got up and tried to run away again, but Clark lunged forward and swung his baton; he hit appellant on the lower leg. Clark's intent was to disable appellant so he would be unable to flee. Appellant fell facedown against the edge of the culvert. At that point, Matthies came into the culvert. Although appellant struggled against the two officers who were attempting to get appellant's hands behind his back, they were able to handcuff him within a few seconds. They then removed appellant from the culvert and Matthies escorted him to a patrol car.
Matthies testified that he participated in the pursuit of appellant. After appellant exited the truck from the driver's side door, Matthies followed Clark, who was chasing appellant and yelling at him to stop. Matthies eventually caught up with Clark and assisted in handcuffing appellant. Matthies subsequently drove appellant to Sutter Hospital to get him medically cleared for jail. Appellant smelled of alcohol and his speech was slurred. Throughout the 20-minute ride to the hospital, appellant was belligerent and repeatedly said the police had beat him up. At the hospital, appellant refused to submit to a chemical test of his blood or breath. Matthies obtained approval of a search warrant to obtain his blood and a nurse at the hospital took the blood sample.
Matthies testified that appellant never had a valid license in California.
Criminalist Esmeraldo Gorecho testified that, at the time the blood sample was obtained, appellant's blood alcohol level was 0.11 percent. Gorecho estimated that appellant's blood alcohol level at 11:00 p.m.—the time of his arrest—would have been approximately 0.16 percent.
DISCUSSION
I. Officer Clark's Use of the Word "Hostage"
Appellant contends the trial court erred when it denied his motion for a mistrial based on Officer Clark's use of the irrelevant and inflammatory word "hostage" during his testimony.
A. Trial Court Background
Before trial, defense counsel requested that the court exclude from evidence a 911 call in which the caller described seeing the driver of the red truck committing a kidnapping and battery on a woman who was trying to exit the truck. The prosecutor said he would not be seeking to admit the 911 call, but he believed the officers' subjective view of the situation during the pursuit was relevant to explain the actions they took. The court found that the information broadcast to the officers about the initial incident was relevant and that, under Evidence Code section 352, its probative value outweighed the prejudice to appellant, but that the information should be sanitized to make it less prejudicial. The prosecutor observed that Officer Clark had earlier said that he believed the driver of the red truck "very well may be trying to kidnap somebody . . . ." The court observed that the dispatcher had described the incident as a "disturbance with a female trying to get out of the passenger side of the car," and defense counsel said that description would be acceptable, with no mention of a potential kidnap or hair pulling.
The court, however, did believe that the officers' belief about what was happening with the female passenger was relevant to their actions. Therefore, if the prosecutor found "it necessary to elicit their belief as to why [the pursuit] continued over a 30-minute period, I will instruct the Jury that it is not admitted for the truth of the matter asserted, that there is no evidence of an actual kidnapping as it turned out, this only as to their belief as to their actions." Defense counsel said he was fine with the court's ruling. Finally, after learning that appellant had originally been charged with kidnapping, but that the charge was dismissed before the preliminary hearing, the court stated, "I don't want the word kidnap used. The word kidnap is—that word, in and of itself, creates a specter of prejudice. [¶] . . . . [If the officers] say a domestic dispute, I will limit that information. . . . They can say that they believed there might be a female who was wanting to leave the car, was prevented from leaving, but don't say the word kidnap. It is just too inflammatory."
On direct examination, Officer Clark testified that he received a dispatch about "some sort of domestic-related incident where a woman was being pulled into a truck." The court instructed the jury that they could consider this information about a domestic disturbance only for the limited purpose of "what this police officer did upon hearing that information, not for the truth of the matter asserted and I'll explain more at the concluding instructions."
Later in Clark's testimony, while the prosecutor played a video of the pursuit, the following exchange took place between the prosecutor and Clark:
"Q. And you're also doing something with a light on and off up to this point in the video. Correct?
"A. Correct.
"Q. Can you describe what it is that you are doing?
"A. I'm trying to—the rear window was tinted. I was trying to see how many occupants were in the vehicle.
"Q. Can you describe if you recall what is going through your head at this point?
"A. At this point I didn't know if there was a hostage in the vehicle based on the earlier report of somebody being pulled into the vehicle."
Defense counsel then requested a sidebar conference, after which the court instructed the jury: "You have just heard evidence of what was going on in Officer Clark's mind. He used the word hostage. There is no evidence that there is any kind of hostage situation in this case. That is evidence that is admitted for the limited purpose of understanding what this officer did in his investigation."
The following day, defense counsel moved for a mistrial on the ground that Clark's use of the term "hostage" was so prejudicial that a fair trial was no longer possible. Counsel argued that the prosecutor had committed misconduct, "including a witness's improper volunteering of information that the court had excluded in a prior ruling . . . ."
The trial court denied the mistrial motion, explaining: "I did instruct [the prosecutor] to tell his witness not to use the word kidnap just by the basic inflammatory nature of that word. He did not. He did not say that this was a hostage situation. The record will reflect that he said, I didn't know what was happening, it might have been a hostage situation, which is exactly what the evidence is. The evidence was that someone had seen what they thought was a woman getting pulled by her hair back into a car." The court also noted that it had admonished the jury that the evidence was admitted only to show Clark's state of mind in continuing a high risk, 30-mile pursuit.
In its final instructions to the jury, the court instructed with CALCRIM No. 303, which provided, "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."
B. Legal Analysis
" 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness's volunteered statement can also provide the basis for a finding of incurable prejudice. [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 565-566; accord, People v. Bolden (2009) 29 Cal.4th 515, 565.)
In the present case, although use of the word "hostage" was probably inappropriate in light of the court's earlier ruling regarding use of the word "kidnap," Officer Clark's testimony was tempered by the fact that he was describing only what was "going through [his] head" at that point, in that he "didn't know if there was a hostage in the vehicle based on the earlier report of somebody being pulled into the vehicle." That fact, coupled with the court's immediate and specific admonition that Clark's testimony involved only "what was going on in [his] mind" and that there was "no evidence that there is any kind of hostage situation in this case," make it extremely "doubtful that any reasonable juror would infer from the fleeting" use of the word "hostage" that Clark's testimony provided evidence that appellant did in fact hold someone hostage during the police chase. (People v. Bolden, supra, 29 Cal.4th at p. 565.) Moreover, although appellant argues that the jury likely disregarded the court's admonition, this is based on "mere speculation." (People v. Wharton, supra, 53 Cal.3d at p. 566; see also People v. Boyette (2002) 29 Cal.4th 381, 436 [where trial court properly instructed jury, "we presume the jury followed those instructions"].) Consequently, "the trial court did not abuse its discretion in ruling that [appellant's] chances of receiving a fair trial had not been irreparably damaged." (Bolden, at p. 566; People v. Wharton, at pp. 565-566.)
II. Sufficiency of the Evidence
Appellant contends substantial evidence does not support any of his convictions.
In evaluating appellant's claims, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime[s] . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . .' A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87 (Manibusan).)
A. Sufficiency of the Evidence that Appellant Drove the Red Truck
Appellant first contends the evidence was insufficient to show he was the person driving the red truck, for purposes of all of his convictions except the resisting a peace officer conviction.
The evidence presented at trial showed that just before he began pursuing the red truck, Officer Corcoran clearly saw that the driver of the truck was male. At the end of the pursuit, he saw a female exiting the passenger side of the truck. Officer Clark identified appellant at trial as the person he saw exiting the driver's side door at the end of the pursuit, as did Officer Matthies. The logical inference from this evidence is that appellant was the driver of the red truck. There was no evidence suggesting otherwise. Accordingly, substantial evidence supported all of the convictions that required appellant to be the driver of the truck. (See Manibusan, supra, 58 Cal.4th at p. 87.)
When asked on redirect examination why he believed appellant was driving the truck during the entire pursuit, Clark responded, "Based on my training and experience, . . . the way that he got out of the driver's side, he was vertical. If he had to climb over somebody, he usually would have had to come out feet first or head first. [¶] The other thing is when people are running from you, they take the path of least resistance. There is plenty of room on the passenger side to get out. There was nowhere to run on the driver's side. It makes no sense for somebody to . . . go through the effort to exit the driver's side if they weren't the driver."
B. Sufficiency of the Evidence that Appellant Resisted a Peace Officer
Appellant next argues that the evidence was insufficient to show that he was guilty of resisting a peace officer due to police brutality, which negated one of the elements of the offense.
Appellant was convicted of resisting, obstructing, or delaying a peace officer, pursuant to Penal Code section 148, subdivision (a). "The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]" (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)
"The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.] 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful.' " (In re Manuel G. (1997) 16 Cal.4th 805, 815; accord, Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819.)
Here, appellant asserts that "although [his] flight justified the police in chasing him and tackling him, it did not justify the police beating [him]." He first states that he "was stationary" when Clark "hit him in the leg with the metal ball at the end of his baton." Appellant also points to Clark's testimony that after appellant was handcuffed, he "was kind of hobbling" and Clark believed he was in pain. Clark also testified that appellant resisted when officers tried to handcuff him, but that he did not kick or punch the officers. Therefore, according to appellant, the prosecution did not satisfy its burden of proving excessive force was not used in appellant's arrest.
We find that substantial evidence supports the jury's implicit finding that the officers used reasonable force when they arrested appellant. The entire incident began when police received a report of a suspected domestic violence incident involving appellant and his female passenger. When Officer Corcoran attempted a traffic stop, appellant fled, driving extremely dangerously with officers in pursuit for over 30 minutes, before his truck became inoperable and he attempted to flee on foot. It was dark out and appellant ignored commands to stop and get on the ground. Clark therefore hit him with his baton on the left elbow in an attempt to stop him. Clark felt concerned for his own safety, given that appellant had been fleeing and was now cornered, and Clark was uncertain as to whether appellant had a weapon. Then, when both appellant and Clark fell into the culvert, as appellant stood up and tried to run away, Clark hit him in the leg with the baton to stop him from fleeing.
Matthies testified that while he was at the hospital with appellant, he saw "some minor swelling to his ankle" and "a welt on one of his arms from the baton." Corcoran testified in response to a question about the Santa Rosa Police Department's "policy for batoning suspects during an arrest," that he had done a " review of the incident" and that Clark was "within policy."
Considering all of the circumstances, we conclude there was substantial evidence that the officers were engaged in the lawful performance of their duties when appellant, who had just led the officers on a dangerous chase and was attempting to flee, resisted their attempts to take him into custody. (Pen. Code, § 148, subd. (a)(1); In re Manuel G., supra, 16 Cal.4th at p. 815; see Manibusan, supra, 58 Cal.4th at p. 87.)
C. Sufficiency of the Evidence that Appellant Drove without a Valid License
Appellant contends the evidence was insufficient to show he drove without a without a valid driver's license, in violation of section 12500, subdivision (a).
Subdivision (a) of section 12500 provides: "A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under [the Vehicle Code,] except those persons who are expressly exempted under [that] code." Persons exempted from this requirement of driving with a California driver's license include a nonresident over age 18 "having in his or her immediate possession a valid driver's license issued by a foreign jurisdiction of which he or she is a resident . . . ." (§ 12502, subd. (a)(1).)
Here, the only evidence presented at trial regarding appellant's violation of section 12500, subdivision (a), involved the following exchange between the prosecutor and Officer Matthies on direct examination:
"Q: . . . . "[W]ere you ever able to determine whether or not [appellant] had a valid license in California?"
Subsequently, during cross-examination of Matthies, defense counsel asked, "Do you know if [appellant] possessed a valid driver's license issued by another state?" However, the court sustained the prosecutor's relevance objection and the officer did not answer the question. Although appellant states in passing, in the context of his insufficiency of the evidence claim, that the court's ruling was error because his possession of an out of state license would be quite relevant to whether he committed the charged offense, he does not specifically challenge that ruling on appeal. --------
Appellant argues that the prosecutor's question did not clearly include whether appellant could have had a valid driver's license from another jurisdiction, which, under section 12502, subdivision (a)(1), would have exempted him from the requirement of possessing a California driver's license under section 12500.
First, we believe the question encompassed whether appellant had a license to drive that was valid in California, not only whether he in fact had a California license. Second, even assuming the prosecutor's question was not sufficiently broad to include an out of state driver's license that was valid in California, as the instruction on this count—CALCRIM No. 2221—made clear, it was appellant's burden to produce evidence showing that he was properly licensed:
"The defendant is charged in Count 6 with driving without a license.
"To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a motor vehicle on a highway;
"AND
"2. When the defendant drove, he did not hold a valid California driver's license.
"Whether the defendant was properly licensed is a matter within his own knowledge. The defendant must produce evidence tending to show that he did hold a valid driver's license. If the evidence raises in your mind a reasonable doubt about whether the defendant held a valid driver's license, you must find the defendant not guilty of this crime. . . ." (Italics added.)
This instruction is based on "the rule of convenience," adopted by our Supreme Court in People v. Boo Doo Hong (1898) 122 Cal. 606, 608-609, which "held that a defendant has a burden of producing a license when a license would act as a complete defense." (In re Shawnn F. (1995) 34 Cal.App.4th 184, 198.) "Holding a valid driver's license is a matter within the defendant's personal knowledge and it would not be unduly harsh or inconvenient for a defendant to produce the license. The California Supreme Court in Boo Doo Hong specifically endorsed the rule in license cases." (In re Shawnn F., at p. 184; accord, People v. Spence (2005) 125 Cal.App.4th 710, 716-717; People v. Garcia (2003) 107 Cal.App.4th 1159, 1164.)
Here, because appellant failed to produce any evidence that he possessed a valid California or out of state driver's license, he cannot complain on appeal about the insufficiency of the evidence showing that he did not possess a valid license from another jurisdiction. "The prosecution was not required to disprove all possible defenses such as the possibility that appellant held a valid driver's license issued by another state . . . ." (People v. Garcia, supra, 107 Cal.App.4th at p. 1164; accord, In re Shawnn F., supra, 34 Cal.App.4th at p. 199.)
III. Bailiff Misconduct
Appellant contends the court should have held an evidentiary hearing to address his claim of bailiff misconduct.
A. Trial Court Background
After trial, defense counsel moved for a new trial on a number of grounds, including "juror misconduct." Defense counsel explained: "The juror misconduct that I'm specifically referring to is the receipt of extraneous information. I spoke with a juror personally for probably 15 minutes to a half hour after trial, and the juror told me that he was made aware of [appellant's] custodial status and my status as a private attorney, and I'm just not certain when that occurred. [¶] . . . I'm just not sure at what point they were told of [appellant's] custodial status." Counsel continued: "I think that this would require further investigation or an evidentiary hearing under Penal Code section 1181 by the court, which that's one reason why I'm asking for separate counsel to be appointed and I will cite case law for that. [¶] But, anyway, what happened is the jury verdicts were brought out, and the jury verdict for the enhancement, it wasn't marked as yes or no to the enhancement, and then—so I'm not sure if that extraneous information—the reason why they said yes or no to the enhancement is because of what the jury learned about [appellant's] custodial status. [¶] For example, if the bailiff told the jurors as soon as they handed over the forms that he was in custody and then your Honor questioned—and I understand why you're . . . ."
The court interrupted counsel, stating: "Well, why I'm thinking that, that is a complete and total ridiculous idea to have one of our bailiffs, and it was specifically Deputy Soares, tell the jury that [appellant] was in custody, that is completely outside the realm in my opinion of possibility, just wouldn't do that." When the court asked if the juror told them when the bailiff said this, defense counsel responded, "I didn't question the juror any further on it. They said, did I do anything wrong, and then I said, well, no, you didn't do anything wrong, and then they said, I've got to go, there's my daughter, so . . . .
"And I talked to this juror for 15 minutes probably to a half hour after and this was towards the end—almost at the end of the conversation where they said this. They said that they were feeling bad about convicting [appellant], and then they said they felt better about it—and I'm paraphrasing, I don't want to quote this juror directly, but they said they felt better—it all made sense once they found out his custodial status, and they didn't use the term custodial status, they said once they found out that he was in custody, and I said, well, how do you know he was in custody and me being—I kind of wear my emotions on my sleeve, they said, oh, did I do anything wrong, and I said, no, I'm just wondering when you found out he was in custody, and then they said the bailiff told me and . . . ." Finally, in response to a question from the court regarding whether he was talking about "[t]hey or one?" counsel clarified that he was talking about one juror only.
The court declined counsel's request that it appoint counsel to represent appellant on his motion for a new trial, finding "[t]here has not been shown a shred of necessity for that at this time." The court then found, specifically with respect to jurors learning that appellant was in custody, that counsel did not even make a threshold showing on the claim of juror misconduct, given that the information had been presented in the form of inadmissible hearsay. The court also found that it could not make a finding that "the extraneous information that was discovered was inherently and substantially likely to have influenced the jurors. Quite frankly, when you have a trial of that length, and everyone is outside but the defendant, although we do our best efforts to keep the fact that defendant is in custody from the jury, and we, you know we hopefully succeed, if any juror actually thinks about it for a moment, they will likely decide that the defendant is not out there, and you do not see him entering or leaving the courtroom, he or she, because they're in custody.
"If indeed the jury found out that [appellant] was in custody near the end of the trial, I do not believe that would be the kind of information that would have a substantial and inherently prejudicial effect on the jurors. So on that motion, the new trial is denied on that ground."
B. Legal Analysis
Appellant argues that at the hearing on the motion for new trial, the court mischaracterized the issue as one of juror misconduct, which required the defense to submit juror affidavits before the court would determine whether an evidentiary hearing was warranted (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467), rather than "bailiff misconduct," which he claims would have no such juror declaration requirement.
First, our Supreme Court has characterized claims like appellant's as juror, not bailiff, misconduct. (See, e.g., In re Welch (2015) 61 Cal.4th 489, 492, 500 [where defendant submitted juror declarations alleging bailiffs improperly communicated to jurors that defendant or confederates were threatening witnesses at trial, Supreme Court characterized issue of improper contacts as jury misconduct].) Hence, juror declarations were required before the court could determine whether an evidentiary hearing would be appropriate. (See ibid.; People v. Bryant, supra, 191 Cal.App.4th at p 1467.)
Second, even assuming a separate claim of bailiff misconduct was available, it was not only the court that characterized the issue as one of juror misconduct; defense counsel did so as well. Because counsel did not in fact describe the issue as one of "bailiff misconduct" at the hearing on the oral motion for a new trial, appellant's claim that the court wrongly addressed the issue as juror misconduct is forfeited on appeal. (See People v. Jennings (1991) 53 Cal.3d 334, 383-384.)
Appellant argues that if the issue is forfeited, defense counsel provided ineffective assistance when he characterized the claim as one of juror misconduct, rather than bailiff misconduct, and that he was prejudiced thereby. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Again, assuming that counsel could have made a separate claim for bailiff misconduct that would have warranted an evidentiary hearing without the prerequisite of submission of juror declarations (but see In re Welch, supra, 61 Cal.4th at pp. 492, 500 ), we find that appellant cannot show he was prejudiced by counsel's failure to raise the issue below. (See Strickland, at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed"].)
" '[T]he official character of the bailiff—as an officer of the court as well as the State—beyond question carries great weight with a jury . . . .' [Citation.] Therefore any comment by a bailiff that is likely to influence the deliberative processes of the jury constitutes serious misconduct." (People v. Hedgecock (1990) 51 Cal.3d 395, 419-420, quoting Parker v. Gladden (1966) 385 U.S. 363, 365.) In addition, reminders of a defendant's custodial status during trial should be avoided. For example, "[i]t is established that a court may not require a defendant to attend trial wearing jail clothing, because such a requirement would impair the presumption that a defendant is innocent unless and until proved guilty beyond a reasonable doubt. [Citations.] 'The Supreme Court has observed that the defendant's jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.]' [Citation.] It may be inferred that other information, having the same tendency to remind the jury that a defendant is in custody, might have a similar effect." (People v. Bradford (1997) 15 Cal.4th 1229, 1335-1336.)
Here, defense counsel was unsure whether the bailiff made the alleged comment to the juror about appellant's custodial status before or after the jury had found true the enhancement allegations at the end of deliberations. Hence, appellant's assertion that the receipt of that information in fact affected the juror's consideration of the enhancement allegations is based on speculation. (See People v. Williams (1988) 44 Cal.3d 883, 937 [defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel"].) In addition, as our Supreme Court has explained, "an isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury." (People v. Bradford, supra, 15 Cal.4th at p. 1336.) Here, defense counsel described a single comment the bailiff supposedly made to a juror at an uncertain time after or near the end of jury deliberations. Appellant has not shown prejudice based on counsel's alleged inadequacy. (See Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.