Opinion
NOT TO BE PUBLISHED
Appeal from and petition for a writ of habeas corpus following a judgment of the Superior Court of Orange County, No. 05HF2015, Richard M. King, Judge. Judgment affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury found defendant and petitioner Donna Kaye Haith guilty of grand theft and second degree commercial burglary. Subsequently, the trial court found the first prior prison term allegation true and granted the prosecutor’s motion to dismiss the second prison term allegation. The court sentenced defendant to three years in state prison.
Defendant appeals, asserting the court erred in instructing the jury and in denying her motion for new trial based on juror misconduct. Alternatively, she asserts she received ineffective assistance of counsel and but for that deficient representation, the new trial motion would have been granted. She petitions for habeas corpus on the same ground. Having consolidated the petition with the appeal for all purposes, we conclude no error occurred, affirm the judgment, and deny the petition.
FACTS
Items of clothing went missing at a woman’s boutique in Costa Mesa after defendant tried them on. She was the only customer in the store at the time and the dressing room she had used had been cleared out earlier by an employee. After she left the store, four empty hangers were found in her dressing room and another one where she was browsing. Also found were five antitheft sensor tags that had been removed from articles of clothing. Although fingerprints on the tags did not match those of defendant, the store owner and her employee specifically remembered defendant trying on and commenting about four of the missing items.
DISCUSSION
1. Instructional Error
Defendant claims instructional error in the giving of CALCRIM Nos. 220 and 224. The Attorney General points out she did not object to these instructions in the trial court and defendant does not dispute that. Nevertheless, a defendant’s claim that an instruction misstates the law or violates her right to due process “is not of the type that must be preserved by objection. [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
As to CALCRIM No. 220, defendant argues it violated federal due process right to have her guilt determined beyond a reasonable doubt because its definition of reasonable doubt prevented the jury from considering whether a lack of evidence gave rise to a reasonable doubt. This argument has been repeatedly rejected on the ground that the instruction makes it clear to the jury that absence of evidence may lead to reasonable doubt. (E.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1118; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 [distinguishing People v. McCullough (1979) 100 Cal.App.3d 169, on which defendant relies].) We agree with these cases.
Defendant also contends that instructing the jury with CALCRIM No. 224 requires reversal because the instruction discusses inferences that may point to the defendant’s innocence, rather than the “constitutionally correct terminology” of whether the defendant is not guilty. This challenge too has been rejected numerous times by the California courts, and we reject it as well. (See, e.g., People v. Anderson (2007) 152 Cal.App.4th 919, 932 [disagreeing with People v. Han (2000) 78 Cal.App.4th 797, cited by defendant]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187.)
2. Motion for Mistrial
Appellant contends the trial court erred in denying her motion for new trial. “‘“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 (1991) 1 Cal.App.4th 307, 311.) But 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.]”’ [Citations.]” (Ibid.; see also People v. Ault (2004) 33 Cal.4th 1250, 1263.) Here the trial court determined the record contained no admissible evidence of misconduct and we agree. We therefore need not consider whether defendant was prejudiced.
a. Background
After the verdicts, defense counsel petitioned for an order releasing juror information averring that the day before they were rendered, a female juror approached defense witness Chris Latin in the courthouse cafeteria and asked why defendant was in custody. Latin answered, “It has nothing to do with this case[,]” to which the juror replied, “Well, I don’t thing so; we think there’s more to it than that.” Latin was excused that day without ever being called to the stand or further contact with defense counsel. The next day the jury found defendant guilty on all counts.
After a hearing, the trial court ordered the release of personal identifying information for three of six female jurors, Jurors 114, 144, and 126; the other three had either objected or had already been contacted by the defense.
Upon completing her investigation, defense counsel moved for a new trial based on Latin’s incident with the juror. She supported the motion with her own sealed declaration purporting to attest to statements made by Jurors 114 and 144 to her investigator, Maurice Dollison. The district attorney opposed the motion arguing it relied on improper hearsay in counsel’s declaration rather than affidavits from the jurors with whom Dollison had spoken and that defendant had not shown either misconduct or prejudice. Both parties submitted on the briefing and the court denied the motion stating it did “not feel that the record demonstrates any jury misconduct....”
b. Analysis
“Upon seeking a new trial based on jury misconduct, the moving party must present admissible evidence that misconduct occurred.” (People v. Von Villas (1992) 10 Cal.App.4th 201, 251; see also People v. Hayes (1999) 21 Cal.4th 1211, 1258 [out-of-court statements allegedly admitting juror misconduct to defense counsel and investigator not within hearsay rule exception and not admissible to establish juror misconduct to support new trial motion].) Evidence presented in a declaration on a new trial motion must be based on the declarant’s personal knowledge. (People v. Cox (1991) 53 Cal.3d 618, 697, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, defendant contends the juror who approached Latin in the courthouse cafeteria “indicated though her remarks... that [defendant’s] custodial status [made her and other jurors] actually biased against her....” But although “[i]t is misconduct for a juror during the course of trial to discuss a case with a nonjuror[] (People v. Danks (2004) 32 Cal.4th 269, 307), the record contains no competent evidence that occurred. Latin did not provide a sworn affidavit; neither did the juror who allegedly spoke with him nor the two jurors referenced in defense counsel’s declaration in support of the new trial motion.
The only evidence defendant cites in support of his claim a juror spoke to Latin is defense counsel’s declaration attached to the petition for the release of juror information. But that consisted of inadmissible hearsay and was not based on counsel’s personal knowledge. The same problem exists with respect to counsel’s declaration filed in support of the new trial motion, as “‘“a verdict cannot be impeached by hearsay....” [Citations.]’ [Citation.]” (People v. Cox, supra, 53 Cal.3d at p. 697; see also People v. Villagren (1980) 106 Cal.App.3d 720, 730 [“hearsay thrice and twice removed” in counsel’s declaration insufficient to impeach jury verdict].)
Nevertheless, the trial court did not deny the motion because of the hearsay problems in counsel’s declaration. It denied the motion because it “[did] not find from the record... evidence of misconduct.” That suggests the court may have considered counsel’s declaration “as an offer of proof as to what the juror[s] would testify to if called upon to do so.” (See People v. Duran (1996) 50 Cal.App.4th 103, 108-109.) In Duran, the trial court accepted an investigator’s declaration at face value and concluded it did “not establish misconduct.” (Id. at p. 110.) Affirming, Duran held the juror’s statement to the investigator regarding the effect of information on her decision was inadmissible under Evidence Code section 1150 because it was “a verbal reflection of her mental processes during deliberations. [Citation.]” (Id. at p. 113.)
Although defendant is correct this case is factually different because of the multiple layers of hearsay and the absence of a request to consider the affidavit as an offer of proof, that does not mean the court did not accept counsel’s declaration at “face value” nor does it preclude us from doing so. Accordingly, we shall as in Duran look behind the multiple hearsay layers and examine the statements made by Jurors 114 and 144 to the investigator and reported by counsel.
Preliminarily, we note that neither saw Latin approached by a juror. Juror 114 may have, as defendant asserts, “remembered ‘a guy’ who was outside the courtroom for several days and gave a physical description that matched Chris Latin,” while Juror 144 recalled “‘a couple of cops, a girl and a guy[]’” but both “did not witness anyone contacting [him]... and... denied having any contact with [him themselves].”
Defendant points to other assertions by Juror 114: (1) defendant’s “custody status was brought up during deliberations” by another juror, (2) it “definitely made [her] wonder [and left a lasting impression]... if [defendant] was supposed to be innocent, then why was she in jail[,]” and (3) “other jurors speculated about the same thing....” Defendant also cites statements by Juror 144 that “a female juror brought up the fact that [defendant] was in custody[,] and therefore[] ‘she was convinced that she must be guilty,’” but that “jurors responded that they couldn’t speculate about that []or consider it.”
But such evidence is inadmissible under Evidence Code section 1150, which provides, “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to 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. No evidence is admissible to show 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.”
Section 1150 thus precludes consideration of evidence demonstrating the effect of statements or events on a juror’s mental processes. (People v. Danks, supra, 32 Cal.4th at pp. 301-302.) It “‘distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved....”’ [Citation.]” (Id. at p. 302.) But “with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict[,]” and “‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror... or concerning the mental processes by which [the verdict] was determined.’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 294.) “‘“This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under... section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.”’ [Citation.]” (People v. Danks, supra, 32 Cal.4th at p. 302.)
In the present case, the statements as to what the jurors were thinking reflected their mental processes, not overt acts that might have sufficed to establish a prima facie case of juror misconduct. The only overt acts referenced in the declaration are that a female juror brought up defendant’s custodial status during deliberations and that “jurors responded that they couldn’t speculate about that []or consider it.” Such evidence is inadmissible because it was offered to prove its effect on the jurors’ mental processes. (People v. Danks, supra, 32 Cal.4th at pp. 301-302.) “The subjective quality of one juror’s reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule of [People v.] Hutchinson [(1969) 71 Cal.2d 342,] which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes.” (People v. Elkins (1981) 123 Cal.App.3d 632, 638.)
Defendant maintains other overt acts were the unknown juror’s contact with Latin “to whom [she] remarked unfavorably regarding [defendant’s] custody status[]” and also “discussed the mental processes of the other deliberating jurors.” But as explained above there was no credible evidence that occurred. The court did not err in denying defendant’s new trial motion.
3. Ineffective Assistance of Counsel
Defendant contends her counsel was ineffective because she submitted her own declaration rather than juror declarations containing the same information or alternatively subpoenaing them to testify at the new trial hearing. She petitions for a writ of habeas corpus on the same ground. But given our resolution of the new trial motion and determination the juror’s statements did not support a misconduct claim, defendant cannot establish that but for counsel’s conduct she would have received a better result. (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Resendiz (2001) 25 Cal.4th 230, 239.)
DISPOSITION
The judgment is affirmed and the petition is denied.
WE CONCUR: SILLS, P. J., FYBEL, J.