Opinion
C074775
07-28-2015
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE NIMAR HASAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F00017)
A jury found defendant Clarence Nimar Hasan guilty of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and found that he personally used a firearm in the commission of both counts (§ 12022.53, subd. (b)). He admitted a 2007 robbery conviction charged as a serious felony (§ 667, subd. (a)) and as a strike (§ 667, subds. (b)-(i)). His posttrial motions for juror identifying information and an evidentiary hearing on juror misconduct were denied. Defendant was sentenced to prison for 30 years four months.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred and violated his Sixth and Fourteenth Amendment rights when it denied his posttrial motions. We affirm.
FACTS
Prosecution Case-in-Chief
On December 20, 2011, around noon, Michael Schlosser was robbed at gunpoint. While walking on a sidewalk, he saw a man standing next to a large red pickup truck that was parked 150 feet ahead. The man, who was facing away from Schlosser, was Black with braided hair and had a red hooded sweatshirt, a beanie on his head, and little to no facial hair. When Schlosser was about three feet away, the man turned towards him and pointed a faded gray or silver semiautomatic pistol at him.
Schlosser thought the pistol might have been a toy because it was small and appeared to have been spray painted two different colors. Schlosser immediately raised his hands. The man reached into Schlosser's pockets and took his wallet and cell phone. The man told Schlosser to leave. Schlosser walked past the man without looking back. Their interaction lasted "[p]robably less than a minute, two minutes tops." During the robbery, Schlosser saw two other Black males in the front seat of the truck.
Schlosser went home and called the police. In the call, he reported that he had been robbed by a Black man who had been standing by a red truck that contained two other Black males. He described the robber as about five feet 10 inches tall, weighing 120 to 150 pounds, wearing a red hoodie, a red hat, and blue jeans. At trial, Schlosser testified that he was six feet one inch tall and the robber was five feet 10 or 11 inches tall.
The day after the Schlosser robbery, Steven Hess delivered beer to a comedy club. Around noon, he parked his truck in an alley behind the club. As he unloaded beer, he noticed a man walking towards him. The man approached to within three or four feet, pulled a small semi-automatic pistol from under his sweater, and pointed the gun at Hess. The gun had a black grip and a shiny metallic slide on top. The man asked Hess what he had; Hess said all he had was a wallet, which he handed to the man. The man asked, "[I]s that all you got," and Hess said, "[Y]eah." The man then told Hess to turn around and start walking, which he did. Hess saw the robber flee to a red truck. The robbery lasted 20 to 25 seconds.
Hess called the police within six or seven minutes of the robbery. He described the robber as a Black man in his early 20's with black dreadlocks, wearing a blue hooded sweater, blue jeans, and a beanie. Hess reported that a pedestrian had said the suspect got into a red truck with a white stripe and that a white man was driving the truck. At trial, Hess described the robber as five feet 10 inches tall and weighing about 150 pounds. The robber had black shoulder-length hair in braids or dreadlocks. He was "a little scruffy" and could have had facial hair although it did not "stick out" in Hess's memory.
In the 911 telephone call, Hess said the robber had fled six or seven minutes earlier. At trial, Hess testified he called 911 within about 15 seconds of the robbery.
Sacramento Sheriff's Detective Jason Lonteen testified that the robberies appeared similar in that they were committed on consecutive days in a similar manner, by a similarly described suspect. Based upon review of the police reports, witness statements, and suspect description, defendant became a suspect.
The next day, on December 22, 2011, Detective Lonteen showed Hess a photographic lineup. Within less than 10 seconds, Hess selected the photograph of defendant as depicting the robber. At trial, Hess testified that he had felt confident that he had identified the robber.
Six days later, Detective Lonteen showed Schlosser a different photographic lineup. Schlosser pointed to the photograph of defendant and said, "[T]hat would be him."
Defendant was arrested at his residence on January 5, 2012. An ensuing search of defendant's person and residence did not yield any weapons or property related to the robberies.
The parties stipulated that defendant is six feet one inch tall, weighs 155 pounds, and was born in February 1986.
At trial, both Schlosser and Hess identified defendant as their robber.
Defense
The defense rested without presenting evidence or testimony.
DISCUSSION
Motion for Evidentiary Hearing on Juror Misconduct
Defendant contends the trial court erred in denying his motion for an evidentiary hearing on juror misconduct and thus violated his Sixth and Fourteenth Amendment rights to a fair jury and due process. We disagree.
A. Background
The jury deliberated for one hour 40 minutes before returning its verdict. After the verdicts were read, the trial court asked, "And Members of the Jury, is that your true and correct verdict as read?" The jury collectively answered, "Yes." Counsel declined to have the jury polled. The court recorded the verdicts and discharged the jury.
Defense counsel filed a motion to obtain the jurors' addresses and telephone numbers. In support, she declared that following the verdicts the jury foreperson approached her and expressed concern about the verdicts. The jury foreperson indicated one juror refused to participate in deliberations, other jurors disregarded the differences between the description of the suspect and defendant's physical characteristics, and there was reasonable doubt of defendant's guilt. The prosecution filed opposition. At the hearing, defense counsel narrowed her motion to seek identifying information for only the jury foreperson. The trial court heard and denied the motion.
When the verdicts were read, the jury foreperson juror was referred to repeatedly as Juror No. 7. But when the verdict forms were redacted, the clerk identified the jury foreperson as juror "#8." At the hearing on the motion for an evidentiary hearing, the jury foreperson was referred to repeatedly as "Juror Number Eight."
Defense counsel later filed a motion for an evidentiary hearing on juror misconduct or, alternatively, for a finding of juror misconduct and an order for a new trial. The motion included a declaration from the jury foreperson stating:
"1. I did not believe that as the foreperson my vote counted as much as the other jurors.
"2. I changed by [sic] vote to guilty, not because the other jurors convinced me of [defendant's] guilt in deliberations, but because the majority voted guilty.
"3. I voted guilty not because I believed that the Prosecution proved [defendant's] guilt beyond a reasonable doubt, but because the other jurors voted guilty.
"4. I felt peer pressure from the other jurors to change my vote. The other jurors just wanted to reach a verdict and go home.
"5. I do not believe that [defendant] is guilty.
"6. I only voted guilty because everyone else did and I, as the foreperson, did not feel my vote counted as much as the other jurors."
The prosecution treated its earlier opposition as its response to the motion.
At the hearing, defense counsel claimed the jury foreperson's declaration established misconduct warranting a new trial because it showed the jury did not follow the law. Alternatively, counsel claimed the jury foreperson's declaration at least furnished good cause to hold an evidentiary hearing more fully to explore the improprieties raised by the declaration.
The trial court noted, as the jury foreperson, Juror No. 8 had blank jury question forms in front of him and presumably had a writing implement, so "he could have simply put down on there any questions or concerns he had" and sent them to the court.
The trial court also noted it instructed the jury with CALCRIM No. 3550, which "says that when you go to the jury room, the first thing you should do is choose a foreperson. They apparently did that. [¶] And the foreperson is to see to it your discussions are carried on in an organized way and that anyone [sic] has a fair chance to be heard. [¶] For all I know, that did happen because I didn't get a letter -- I didn't get a question from the foreperson telling me that it didn't happen that way other than now, he's saying that he felt - somehow he felt pressured to do this.
"It's your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors.
"Do not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because other jurors disagree with you. [¶] I don't know how it gets anymore [sic] significant than that. I mean, that is in the -- the -- 3550. [¶] Do not change your mind just because other jurors disagree with you.
"In that same instruction, is if you need to communicate with me when you are deliberating, send a note through the bailiff, signed by the foreperson or by one or more members of the jury."
The trial court questioned the credibility of the jury foreperson's declaration, stating: "He had these instructions, and he was the foreperson. He was the guy with the pencil and the questions, and he didn't avail himself of that. [¶] He was told not to change his mind just because others disagreed with him, and then I have this odd statement from him saying I just didn't think my vote counted as much as the other jurors because I was the foreperson. [¶] I can't imagine where he got that concept from. It's not in the jury instructions. [¶] And I have to say. I mean, I'm looking at those things. I just - I'm having some real trouble with that."
The trial court went on to assume, for purposes of argument, the jury foreperson "changed his mind because he's the only one voting not guilty. He merely acquiesced." The court noted jurors are allowed to acquiesce so long as they are not being pressured or forced by someone to adopt a different view.
When defense counsel claimed the jury foreperson was not asserting that, following deliberations, the other jurors convinced him that defendant was guilty, the trial court responded: "But isn't that what he said here when I said is that your verdict, and everyone said yes, and he said nothing in opposition to that. [¶] The clerk asked is this your true and correct verdict, Members of the Jury, and he said yes."
Finally, in denying the motion, the trial court stated: "The difficulty I have is the declaration . . . does not rise to the level of calling for any form of jury misconduct or even for a hearing on jury misconduct. [¶] He simply changed his mind or had -- has since changed his mind or perhaps he did it as he's walking out the door . . . . Well, he voted guilty in the deliberation room. He said that was his vote here in -- in open court. . . . [¶] We recorded the verdicts, and between that time and the time he went out in the hallway and talked to [defense counsel], he somehow changed his mind. And now he has this thought that well, I didn't think my vote counted as much because I was the foreman. I don't even understand that. [¶] But I find there's insufficient cause to proceed with this matter to an evidentiary hearing, and I'll deny the request . . . for an evidentiary hearing on jury misconduct. I will not make a finding of jury misconduct."
B. Relevant Legal Principles
We first consider what evidence is admissible to establish the claimed jury misconduct and then consider what procedure must be used when evaluating the admissible evidence.
Evidence Code section 1150, subdivision (a) 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."
"This statute 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.] '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 [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.' [Citations.]" (People v. Steele (2002) 27 Cal.4th 1230, 1261 (Steele).)
When jury misconduct is alleged, a trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegation. (People v. Hedgecock (1990) 51 Cal.3d 395, 415, 419 (Hedgecock); accord, People v. Avila (2006) 38 Cal.4th 491, 604.) However, a "defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." (Hedgecock, supra, at p. 415.) "[A]n evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (Id. at p. 419.)
In ruling on a request for a new trial based on jury misconduct, the trial court applies a three-step inquiry: (1) it must determine whether the affidavits supporting the motion are admissible, (2) if admissible, it must determine whether the facts establish misconduct, and (3) if it finds misconduct, it must determine whether the misconduct was prejudicial. (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.)
The trial court's credibility determinations and findings on pure questions of fact are reviewed under the deferential substantial evidence standard. (People v. Nesler (1997) 16 Cal.4th 561, 582.) But where juror misconduct is found, the trial court's determination whether the misconduct was prejudicial is subject to the appellate court's independent review. (Ibid.)
C. Analysis
1.
The jury foreperson's first assertion, "I did not believe that as the foreperson my vote counted as much as the other jurors," is ambiguous in that it may reflect his belief that his single vote counted less than the collective votes of his 11 fellow jurors. The assertion does not necessarily reflect a belief that his vote counted less than the individual votes of each of the other jurors.
In any event, the assertion is not objectively verifiable; it reflects the subjective reasoning process of the individual juror and thus is inadmissible. (Evid. Code, § 1150, subd. (a); Steele, supra, 27 Cal.4th at p. 1261.) There was no suggestion that the jury foreperson communicated his view to any other juror. Contrary to defendant's assertion, the trial court had no duty to convene an evidentiary hearing merely to determine whether such view had been communicated. (Hedgecock, supra, 51 Cal.3d at p. 415.)
2.
The jury foreperson's second assertion, "I changed by [sic] vote to guilty, not because the other jurors convinced me of [defendant's] guilt in deliberations, but because the majority voted guilty," similarly reflects the juror's subjective reasoning process -- specifically, his reason for changing his vote -- and thus is inadmissible. (Evid. Code, § 1150, subd. (a); Steele, supra, 27 Cal.4th at p. 1261.)
3.
The jury foreperson's third assertion, "I voted guilty not because I believed that the Prosecution proved [defendant's] guilt beyond a reasonable doubt, but because the other jurors voted guilty," describes his subjective reasoning process more fully than his second assertion: he claims his vote did not result from the prosecutor proving the case beyond a reasonable doubt. The assertion is not objectively verifiable and is not admissible pursuant to Evidence Code section 1150, subdivision (a). (Evid. Code, § 1150, subd. (a); Steele, supra, 27 Cal.4th at p. 1261.)
4.
The jury foreperson's fourth assertion, "I felt peer pressure from the other jurors to change my vote. The other jurors just wanted to reach a verdict and go home," did not indicate whether any other juror had made an overt, objectively ascertainable, expression of "just want[ing] to reach a verdict and go home." (Cf. Steele, supra, 27 Cal.4th at p. 1261.) Because the parties' evidence did not present a material conflict as to whether such an expression had been made, the trial court had no duty to convene an evidentiary hearing on the point. (Hedgecock, supra, 51 Cal.3d at p. 415.)
Even if there were an objectively verifiable expression of wanting to "reach a verdict and go home," there was no indication of wanting to "reach" the verdict by improper means such as refusing to engage in the requisite deliberations. There was no suggestion, and no material conflict, as to whether any juror in fact did not deliberate. Defendant's assertion that the jury foreperson's declaration was "another way of saying the jurors did not deliberate" has no merit.
The only suggestion of failure to deliberate was contained in defense counsel's declaration in support of motion for release of juror identifying information. The declaration set forth the jury foreperson's unsworn assertion that "one juror ([the jury foreperson] did not mention his name) refused to participate in deliberations." In response to remarks by the prosecutor, the trial court declined to consider the unsworn assertion. We similarly decline to consider the jury foreperson's unsworn remarks to defense counsel. --------
Finally, even if there was an objectively verifiable expression of wanting to "reach a verdict and go home," there was no indication or material conflict as to whether any juror acted on this desire by using " 'objectively ascertainable' " "words or conduct" for the purpose of pressuring the jury foreperson. The jury foreperson's mere "fe[eling of] peer pressure from the other jurors" reflects his subjective reasoning process as opposed to objectively verifiable misconduct. (Evid. Code, § 1150, subd. (a); Steele, supra, 27 Cal.4th at p. 1261.)
5.
The jury foreperson's fifth assertion, "I do not believe that [defendant] is guilty," describes the result of his subjective reasoning processes and fails to describe any objectively ascertainable overt acts. (Steele, supra, 27 Cal.4th at p. 1261.) As such, the statement is inadmissible.
6.
The jury foreperson's sixth assertion, "I only voted guilty because everyone else did and I, as the foreperson, did not feel my vote counted as much as the other jurors," reprises his first and second assertions and requires no further discussion.
In short, defendant never presented the trial court with a credible prima facie showing of juror misconduct. The court had no duty to order jurors to appear at a hearing to answer questions about whether misconduct occurred. Defendant's reliance on People v. Tuggles (2009) 179 Cal.App.4th 339, 385-386, which allows a hearing where a credible prima facie showing has been made, is misplaced.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: BUTZ, J. DUARTE, J.