Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA313012, Marsha Revel, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Derrick Lavar Ferguson was charged by information with a violation of Penal Code section 12021, subdivision (a)(1) (felon in possession of a handgun). The information further charged that appellant had suffered three prior convictions.
Unless otherwise indicated, statutory references are to the Penal Code.
Only one prior conviction was alleged to be a serious or violent felony or juvenile adjudication within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivision (b) through (i).
After a jury trial, appellant was convicted of the charged offense. Appellant admitted one prior offense (a previous violation of section 12021, subdivision (a)(1)), and waived his right to jury trial on the remaining prior offenses. The court found true that appellant had committed one additional prior offense (a violation of section 487, grand theft) and sentenced appellant to the high term of three years.
The jury found not true the allegation that appellant committed the offense for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, assist further criminal conduct by gang members.
On appeal, appellant contends the jury committed prejudicial misconduct and that the trial court erred in refusing to admit hearsay evidence that another party had claimed ownership of the gun. We disagree and affirm.
A. Evidence at Trial
1. Prosecution Case
On November 21, 2006, Los Angeles police officers Jose Campos and Mynerva Gramillo were patrolling the area of 1829 West 25th Street in a marked car. They observed a group of people at that location, loitering on the sidewalk, sitting in parked cars and apparently drinking in public. As the officers approached to investigate, several people in the group disbursed by driving or walking away. Officer Campos observed appellant get into a parked car. As Officer Campos approached that car, he smelled the odor of marijuana. He ordered the occupants out of the car.
Appellant got out and stood near the door, ignoring instructions to place his hands behind his head and move to a nearby fence. Officer Campos saw him adjust his jacket, lower his left arm and drop a dark object. Officer Campos heard the sound of “metal clatter” or “a rattle from the metal of the [gun].” Officer Campos explained that in his experience, when a gun is dropped on a hard surface “you will hear the obvious clatter of the metal on the concrete”; when it is dropped on dirt or grass -- the type of surface on which appellant had been standing -- “you can still hear the rattling of the actual weapon from the loose parts within it.” Officer Campos walked to the spot where appellant had dropped the object and found a .22 caliber semi-automatic handgun.
The evidence also established that appellant had admitted being a Rolling 20’s gang member in the past and had on his body several tattoos typical of members of that gang. Appellant stipulated that he had previously been convicted of a felony.
2. Defense Case
Tracey Pearson testified that she was at the scene of the incident on the day appellant was arrested. She saw Tiana Baudoin at the location at some point that day, but not when the police arrived or when they recovered the gun. Pearson was watching appellant and saw him get out of the car, put his hands on his head and start walking towards the fence.
Baudoin was called as a witness and refused to answer questions, citing the Fifth Amendment.
A forensic science consultant testified that he examined the gun, but was unable to find any fingerprints.
B. Excluded Evidence
1. Baudoin’s Statement to Officer Campos
At the preliminary hearing, Officer Campos testified that Baudoin appeared at the Southwest police station a few days after the incident. When Officer Campos interviewed her, she said the gun belonged to her. The court sustained objections to follow-up questions, including whether Baudoin said she dropped the gun at the location of the incident or whether Officer Campos threatened to arrest her for interfering with an investigation.
Prior to trial, the prosecution brought a motion to exclude any evidence of Baudoin’s statement on the ground that it was hearsay, failed to qualify as a statement against penal interest, and was untrustworthy.
The court did not rule on the motion immediately. At trial, outside the presence of the jury, Officer Campos testified that on the day Baudoin appeared at the station, he was informed by the officer at the desk that Baudoin had stated the gun found at the scene was hers. Baudoin did not make that statement to Officer Campos. When Officer Campos first saw Baudoin, she was upset and crying. She said: “I don’t know what I’m doing here. I shouldn’t be doing this.” Officer Campos asked her if she was there to claim the gun. “[S]he was kind of like nodding.” He asked if she was doing that to “cover for [her] homey.” She both nodded and shook her head and continued to cry. The officer warned her she could go to prison and her children could be taken away. Officer Campos also stated that if she was worried her “homeboys” would “look down on [her],” he would put the word out that she had tried to claim possession. Officer Campos did not recall whether he had threatened to have her arrested for interfering with an investigation. The court concluded that because Baudoin had not told Officer Campos that the gun was hers, her hearsay statement was not admissible.
Baudoin was a member of the Rolling 20’s gang and had various gang tattoos on her body.
Officer Campos was permitted to testify that on November 25, he interviewed Baudoin after she told the desk officer that the gun was hers. He “might” have told her that if she claimed possession of the gun, she could be arrested for interfering with an investigation. Baudoin, who was upset and crying during the interview, recanted before it ended. Officer Campos expressed the opinion that “covering for a fellow gang member” was something a member of the Rolling 20’s gang would do. The court instructed the jury this testimony was admitted not for the truth of the matter asserted by Baudoin, but as evidence of the officer’s state of mind.
2. Baudoin’s Statement Heard by Pearson
Outside the presence of the jury, Pearson testified that she overheard Baudoin saying she had the gun and that it was not fair that appellant was being charged. The court concluded the statement heard by Pearson was not against Baudoin’s penal interest because it was not made under circumstances where she thought she might be arrested. The court also found that the statement was not trustworthy.
3. Baudoin’s Statement to Public Defender’s Office
Baudoin gave a statement to the public defender’s office. She said a “guy” had given her the gun, a “first edition 22 colt,” for protection. She later described the gun as a “first edition 25.” She also said that on the day of the incident, she was carrying the gun at her waist, under her jacket, on a trip to the store. She left the gun by some bushes when she went into the store because she was “scared of the police.” When she came out of the store, appellant had been arrested and the gun was gone. When she tried to talk to the police, she was threatened with arrest for interfering with an investigation.
The statement was apparently recorded and a transcript was provided to the court.
After the prosecution rested, appellant’s counsel asked the court to reconsider admitting Baudoin’s statements and the court agreed to hear further argument. The court concluded, based on Baudoin’s words, “the circumstances under which they were uttered,” her “possible motivation,” and her “relationship to the defendant,” that the statements were untrustworthy and unreliable. To support its finding, the court made particular reference to the following facts: (1) Baudoin’s described actions -- putting a loaded gun down on the ground near a large group of people in order to go into a store -- made no logical sense; (2) Baudoin’s description of the gun -- as a “22” and then a “25” -- was confused; (3) Baudoin was affiliated with the Rolling 20’s gang; and (4) Baudoin must have been aware that the statement made at the public defender’s office was unlikely to lead to her arrest. The court also pointed out that the possibility Baudoin owned the gun did not preclude appellant from having possession of it on the day in question, and noted that evidence Baudoin had claimed the gun had been put before the jury for purposes of determining Officer Campos’s state of mind and credibility.
C. Motion for New Trial
After the jury rendered its verdict, appellant requested a mistrial. In support of the motion, he submitted the declaration of juror no. 2836, who stated: “In our deliberations, one of the issues that was discussed by the jurors was whether or not Officer Campos would have heard the noise of the gun as it hit the ground, as we discussed his testimony to be. [¶] At one point, we asked the deputy to bring in the gun into the jury room. [¶] We asked for that in order to try to see what kind of noise the gun would make when it hits the ground. [¶] I then took the gun, put it at my hip, and dropped it to the floor in the jury room. [¶] We did this in order to see what kind of noise it would make. [¶] The noise that the gun made as it hit the floor in the jury room was louder than many people expected, including myself. One juror said[,] ‘Yeah, he could have definitely heard that, and this was on the carpet.’ [¶] After the gun was dropped to the ground, there was no further mention of doubts that the defendant was guilty. [¶] The gun dropping to the ground in the jury room was in the middle of the read back being prepared for the jury, and after the dropping of the gun, the jury no longer needed to hear the remainder of the read back.”
Juror no. 2836 further stated in his declaration that during deliberations “some” of the jurors said it was odd that appellant did not give his side of the story “and implied that this was evidence of his guilt.” Juror no. 2836 stated that “had he testified he probably would have sounded like a gang member which would have just worked against him”; “[s]everal jurors agreed with this statement.”
A declaration from the foreperson (juror no. 1618) confirmed that the gun had been dropped in the jury room. The foreperson recalled that jurors had said “‘Oh, we can hear that,[’] and [‘]that is pretty loud.’” The foreperson, however, did not recall any remarks about appellant’s failure to testify.
The court denied the motion for new trial, explaining that the jurors had the right to “touch, hold, feel, and I believe even drop the gun” and that “the demonstration they did was to give them some idea to see what kind [of] sound it would make when dropped.” That kind of experimentation was not “outside the evidence” and was, therefore, not improper. With respect to appellant’s failure to testify, the court concluded that the comment or comments about appellant’s failure to testify represented “curiosity” and that it would be speculation to presume that any juror used it as evidence of guilt, as no juror specifically so stated. The court reasoned that if there had been anything more than a passing comment, the foreperson would have heard about it. The court further noted that the comment about appellant not wanting to testify for fear of sounding like a gang member provided an “innocent explanation” for his failure to testify.
DISCUSSION
A. Juror Misconduct
1. Standard of Review
Appellant’s first contention is that the trial court erred in denying the motion for new trial based on juror misconduct. “When a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. ‘First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial.’” (People v. Sanchez (1998) 62 Cal.App.4th 460, 475, quoting People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)
Jury misconduct, once established, “raises a presumption of prejudice, and ‘“unless the prosecution rebuts that presumption . . ., the defendant is entitled to a new trial.”’” (People v. Cumpian (1991) 1 Cal.App.4th 307, 312, quoting In re Stankewitz (1985) 40 Cal.3d 391, 402.) “‘The presumption of prejudice “may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. . . .”’” (People v. Cumpian, supra, at p. 312, quoting People v. Miranda (1987) 44 Cal.3d 57, 117.) “‘Whether a defendant has been prejudiced . . . depends upon “whether the jury’s impartiality has been adversely affected, whether the prosecution’s burden of proof has been lightened and whether any asserted defense has been contradicted.”’” (Ibid.)
“‘“It is the trial court’s function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct . . . .”’” (People v. Cumpian, supra, 1 Cal.App.4th at p. 311, quoting People v. Wisely (1990) 224 Cal.App.3d 939, 947.) However, if the trial court concludes, based on its evaluation of the evidence, that misconduct occurred and denies the motion for new trial based on lack of prejudice arising from the misconduct, “‘“a reviewing court has a constitutional obligation . . . to review the entire record, including the evidence, and to determine independently whether the act of misconduct . . . prevented the complaining party from having a fair trial. [Citations.]”’” (Ibid.)
2. Gun Drop Experiment
Appellant contends the jury committed misconduct when it conducted an experiment by dropping the gun to see what sound it made. We disagree.
The Sixth Amendment protects the right of the accused “[i]n all criminal prosecutions . . . to be confronted with the witnesses against him” and, therefore, precludes the jury from developing its own evidence. Nevertheless, the Supreme Court has long recognized that jurors may use any exhibit admitted into evidence and taken into the jury room “according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter.” (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 656-657.) Accordingly, jurors may “carry out experiments within the lines of offered evidence.” (Id. at p. 657.) It is only if “their experiments . . . invade new fields” and their verdict is “influenced [by] . . . discoveries from . . . experiments which will not fall fairly within the scope and purview of the evidence,” that a defendant’s Sixth Amendment rights are implicated. (Ibid.; accord, People v. Baldine (2001) 94 Cal.App.4th 773, 778; People v. Bogle (1995) 41 Cal.App.4th 770, 778-779.)
Here, the issue was whether Officer Campos accurately perceived appellant drop a gun. Although the officer could not initially identify the dark object he observed falling from appellant’s hand, Officer Campos testified that it must have been the gun he subsequently found lying on the ground because he heard a metallic, rattling noise which, in his experience, was the noise a gun makes falling on a grass and dirt surface. The jurors’ actions did not invade new fields or deviate from the evidence offered. Officer Campos testified that he could identify the object dropped because of the distinctive sound. The gun was dropped in order to determine the sound it made. That this experiment to verify testimony did not amount to misconduct is confirmed by numerous cases where the jurors similarly manipulated physical evidence in a manner suggested by the evidence and no finding of misconduct resulted. (See, e.g., People v. Baldine, supra, 94 Cal.App.4th at pp. 776-780 [no misconduct where jury turned on police scanner and discovered it worked; defendant had testified it was non-operational]; People v. Bogle, supra, 41 Cal.App.4th at pp. 778-781 [no misconduct where jurors tried defendant’s keys and discovered one of them opened safe in which victim’s jewelry had been found; during trial, defendant had been asked to identify each key on the ring]; People v. Cooper (1979) 95 Cal.App.3d 844, 853-854 [no misconduct where jurors reenacted defendant’s act of throwing away bag of heroin as described in police officer’s testimony]; compare Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1749 [juror committed misconduct in demonstrating for fellow jurors how concrete is poured where no such evidence introduced at trial].) As the court stated in People v. Cooper, where the jury reenacted the defendant’s alleged tossing of a plastic bag containing heroin in order to “‘confirm[] . . . the police officers’ testimony and in court demonstration’ of the throwing incident,” “Nothing requires that the jury’s deliberations be entirely verbal, and we would expect a conscientious jury to closely examine the testimony of the witnesses, no less so when that testimony takes the form of a physical act.” (People v. Cooper, supra, 95 Cal.App.3d at pp. 852, 854.)
Appellant contends the experiment was improper because from the comments made, the jurors appeared to focus on the sound the gun made when it hit the floor rather than on the rattling, metallic sound described by Officer Campos. As the court explained in People v. Sanchez, in determining whether the jury committed misconduct, inquiry is permitted into “‘statements made, or conduct, conditions, or events occurring, either within or without the jury room of such a character as is likely to have influenced the verdict improperly.’” (People v. Sanchez, supra, 62 Cal.App.4th at pp. 475-476, quoting Evid. Code, § 1150, subd. (a).) Courts are precluded, however, from considering evidence of “‘the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.’” (Ibid.) The experiment itself was proper. Appellant’s contention invites us to consider whether some jurors drew improper conclusions from it. This would invade the jury’s thought processes -- an inquiry we cannot properly make.
3. Comment on Appellant’s Failure to Testify
Appellant contends the jury’s verdict was improperly based on appellant’s failure to testify. We agree the comments identified by juror no. 2836 constituted misconduct, but conclude it was not prejudicial.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Accordingly, jurors are strictly forbidden to draw adverse inferences from a defendant’s failure to testify or to consider or discuss that fact during their deliberations. (See, e.g., CALCRIM No. 355.) Credible evidence that jurors disobeyed the court’s instruction not to consider or discuss the defendant’s failure to take the stand is sufficient to support a finding that misconduct occurred. (People v. Leonard (2007) 40 Cal.4th 1370, 1425; People v. Hord (1993) 15 Cal.App.4th 711, 725; People v. Perez (1992) 4 Cal.App.4th 893, 907.)
Respondent notes that the jury foreperson did not recall any discussions of appellant’s failure to testify and contends that the order denying the new trial may be affirmed on the ground that such discussions did not take place. Evidentiary and credibility issues are for the trial court. Nothing in the record indicates that the court found that that the comments were not made or that juror no. 2836 lacked credibility. To the contrary, the court’s ruling indicates that the court believed the comments were made out of the hearing of the foreperson.
Turning to the question of prejudice, in People v. Leonard, the Supreme Court found no prejudicial misconduct where the jurors “merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better.” (People v. Leonard, supra, 40 Cal.4th at p. 1425.) According to the court, such statements are “‘not the same as punishing the Defendant for not testifying’” or “‘drawing negative inferences from the absence of testimony.’” (Ibid.) Similarly, in People v. Hord, the court stated that “[a] passing reference to an inappropriate matter,” such as the defendant’s failure to testify, may not be prejudicial, if it is “not ‘inherently likely’ to have affected the vote of any of the jurors . . . .” (People v. Hord, supra, 15 Cal.App.4th at p. 727, quoting People v. Hill (1992) 3 Cal.App.4th 16, 38.) “Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion.” (Id. at pp. 727-728.) A finding that “only some of the jurors recalled the comments” supports that there was “not a discussion of any length or significance.” (Id. at p. 728.)
Here, in determining that no prejudice resulted from the improper discussion, the trial court relied on the transitory nature of the comments as evidenced by the fact that the foreperson did not hear or recall them. The court further relied on the absence of any statements indicating that a juror intended to base his or her vote on appellant’s failure to take the stand and on the explanation provided by juror no. 2836, that appellant’s fear of sounding “like a gangster” in front of the jury was the basis for his decision. We agree with the trial court’s analysis. The comment or comments described by juror no. 2836, while technically constituting misconduct, do not support a finding of harm or prejudice.
B. Baudoin’s Out-of-Court Statements
Finally, appellant contends the trial court erred in refusing to admit evidence of Baudoin’s out-of-court statements concerning her ownership of the gun. Appellant concedes that the statements were hearsay, but believes they were admissible under Evidence Code section 1230.
“Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the jury (or other trier of fact) is unable to observe the declarant’s demeanor.” (People v. Cudjo (1993) 6 Cal.4th 585, 608.) Evidence Code section 1230, an exception to the hearsay rule, provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.” “A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.] On appeal, the trial court’s determination on this issue is reviewed for abuse of discretion.” (People v. Cudjo, supra, 6 Cal.4th at p. 607, quoting People v. Frierson (1991) 53 Cal.3d 730, 745.)
Baudoin was unavailable as a witness because she chose to exercise her privilege against self-incrimination. (People v. Cudjo, supra, 6 Cal.4th at p. 607.) However, the trial court concluded her out-of-court statements were not admissible because they failed to pass the threshold of trustworthiness considering all the circumstances. In reaching this conclusion, the court made particular reference to the implausibility of the story told by Baudoin -- that she left a loaded gun on the ground near a large group of people without good reason; her confused description of the gun; her motivation as a fellow member of the Rolling 20’s to aid appellant; and her friendship with appellant. With respect to the statements made to Officer Campos, the court further noted that Baudoin had not clearly said to him that the gun was hers, but had made that statement to the desk officer.
We also note that according to Officer Campos’s trial testimony, Baudoin recanted her claim of ownership when he interviewed her.
We reverse a trial court’s discretionary ruling only where the complaining party establishes that the court “‘exceed[ed] the bounds of reason, all of the circumstances before it being considered.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348-349.) “‘[U]nless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’” (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) The Court’s decision to exclude Baudoin’s out-of-court statements as untrustworthy and unreliable was based on a reasoned consideration of all the circumstances surrounding the statements. The court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.