Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA067732, Bruce F. Marrs, Judge.
Criminal Defense Associates and Susan Lynn Ferguson for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie, Jennifer M. Poe and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Gregory Robert Hernandez appeals from a judgment of conviction entered after a jury trial and from an order denying his motion for a new trial. We reverse the judgment and vacate the order.
PROCEDURAL BACKGROUND
Defendant was charged with two counts of lewd acts upon a child age 14 or 15 in violation of Penal Code section 288, subdivision (c)(1). Defendant pleaded not guilty. Defendant was tried by jury. The jury was unable to reach a verdict and the trial court declared a mistrial. By amended information, defendant was charged with two counts of committing lewd acts upon a child aged 14 to 15 years old (§ 288, subd. (c)(1)). A misdemeanor charge of annoying or molesting a child under 18 (§ 647.6, subd. (a)) was added. Defendant pleaded not guilty. Trial was by jury. Defendant was convicted on all counts.
Unless otherwise noted, all further statutory references are to the Penal Code.
Defendant then filed a motion for disclosure of juror information and moved for a new trial based upon juror misconduct. The motions were denied.
The trial court refused defendant’s motion to reduce the felony charges to misdemeanors. Probation was denied and defendant was sentenced to a total term of two years and eight months in state prison. Defendant was required to register as a sex offender under section 290, subdivision (a)(2)(A).
FACTS
In June 2004, Jane Doe was 14 years old and had just completed the ninth grade at Gladstone High School. In late June 2004, while doing laundry, her mother, Margaret D., found a letter in Doe’s clothes. The letter read: “Hey [Doe], first off, I would love your fantasy to come true. It doesn’t bother me, upset me or intimidate me. But I hope I don’t scare you. Some fantasies I have about only you are like I wrote before are playing chicken with you, strip poker, having you measure me, you caressing me and me caressing you, kissing you, touching you, undressing you, having sex with you and you bowing down for me and me bowing down to you. I hope I don’t scare you dimple cutie.” The letter was signed G-unit.
Mrs. D. had previously heard Doe and other students refer to defendant, a teacher at Gladstone High School, as G-unit. Mrs. D. went to Doe’s room to confirm that defendant’s nickname was G-unit. Doe told Mrs. D. that defendant’s nickname was G-unit. Mrs. D. then asked Doe if there was anything that Doe wanted to tell her about defendant. Doe told Mrs. D. that she had nothing to tell her. Mrs. D. then showed Doe the letter. Doe looked scared and started crying. Doe told Mrs. D. that she was sorry. Mrs. D. became angry and told Doe that she was off the track team. She also took away her cellular telephone. Mrs. D. told Doe that she had to tell her father. Doe looked “really, really scared.”
When Doe’s father arrived home, Mrs. D. showed him the letter. They both talked to Doe for about one hour. During the conversation, Doe told them that defendant had touched her on the shoulders, her rear end, and between her legs. After their conversation, Mrs. D. and her husband decided that they should first talk to defendant. They did not call the school or the police. Mrs. D. first wanted to find out if defendant had really written the letter.
Several days later, Mrs. D. and her husband set up a meeting with defendant at the high school. When they arrived, Mrs. D.’s husband, using his own cellular telephone, called defendant. They agreed to meet in the faculty parking lot. After Mrs. D.’s husband and defendant hung up, a call came into Doe’s phone. It was defendant’s phone number and the name that showed up on the cellular telephone was G-unit.
Defendant came to the faculty parking lot to meet with Mrs. D. and her husband. Mrs. D. and her husband showed defendant a copy of the letter. They asked defendant if he had written the letter, and he responded, “Yes.” Mrs. D.’s husband then asked defendant if he knew what they did to pedophiles in jail, and defendant again responded, “Yes.” Mrs. D. asked defendant why he would write such a letter to Doe, since she was a little girl. Defendant responded, “I don’t know.” Mrs. D. and her husband told defendant that it might be best if he left the school because Doe did not want to leave. Defendant responded that he had already been assigned his classes for the upcoming year and would have to stay for the school year. Mrs. D. and her husband initially thought it would be okay if defendant stayed until the end of the school year. Mrs. D. and her husband told defendant that they would be in contact with him after they had a chance to talk further to Doe. Afterward, Mrs. D., her husband and Doe decided that it would be better to contact the school’s principal about what had happened in order to get defendant to leave the school.
Mrs. D. and her husband contacted the school principal, who advised them that there were several procedures that they would have to follow in order to file a complaint against defendant. Mrs. D. and her husband followed the instructions and filed a formal complaint. Sometime later, Mrs. D. and her husband were contacted by the Covina Police Department. They gave the letter to the police.
On cross-examination, Mrs. D. admitted she knew defendant was driving Doe home from track meets, but that it had not bothered her because other people were in the car. Doe originally denied to Mrs. D. that anything was happening between her and defendant. Doe then told Mrs. D. and her husband that defendant had touched her on her leg, her vagina, her rear end and her shoulders. Defendant never asked Mrs. D. and her husband where they had gotten the letter, questioned where they found it, or indicated that it was written to someone else.
According to Doe, she first met defendant when she joined the track team. Her friend Hector C. convinced her to join the team. The track season was in February and March of 2004. In June 2004, even though school was out, cross-country practices were held and she participated in them. Track practices and meets were held after school four days a week. Doe spent a lot of time with defendant at track practices and meets and in his classroom. She usually spent lunch hours in defendant’s classroom and a few times attended his second period math class. She skipped her sixth period class and went to defendant’s classroom a few times. She and defendant were alone several times in the classroom together.
Doe testified at the preliminary hearing that her friend Adriana C. was always with her when she was in defendant’s classroom.
On at least one occasion, while Doe was in defendant’s classroom during sixth period, he told her she had a “nice butt,” which made her feel uncomfortable. He also touched her rear end. Doe did not recall how many times that this happened. On some other occasion or on the same day, he rubbed her shoulders. These touchings occurred sometime in the middle of track season.
Defendant occasionally took six or seven track team members out to eat after practice or meets. On several occasions, he drove her and other track team members home. During track season, Doe was the first person to be dropped off. After the school year ended, and cross-country practices started, defendant started dropping Doe off last. Doe was alone with defendant in his car on more than one occasion.
On at least one occasion while Doe and defendant were alone in his car, defendant rubbed her on the inside portion of her thigh. Defendant asked Doe if it felt good, but she did not respond. Doe could not recall how many times defendant rubbed her thigh.
Doe testified that on another occasion while they were alone in his car, defendant rubbed her thigh again. Then he put his hand through the opening of the leg of her shorts and rubbed his hand over her underwear on her vagina. He asked her if that felt good. She said nothing to him. She did not remember how many times defendant had done this.
Either on the same day or another occasion, defendant asked Doe to rub his leg and his penis. Doe did not respond. Defendant continued to ask her to touch his penis and kept grabbing her hand and placing it on his penis over his clothes. Doe rubbed defendant’s penis. Defendant told her that it felt good. Defendant’s penis became erect when she rubbed it. Doe did not know when this had happened, but it was while defendant was driving her home. Doe recalled that defendant touched her rear end and leg during track season.
Defendant wrote the letter to Doe that Mrs. D. found. She did not recall when she received the letter. She put it in her school binder. She did not recall if defendant gave it to her personally or whether Adriana gave it to her and told her it was from defendant. Defendant had written Doe three or four letters, and she had written back to him three or four times. Doe admitted that she had a crush on defendant. She had not planned on telling anyone about the touching between her and defendant. The discovery of the letter prompted her to tell her mother what was happening.
The letter was in response to a letter that Doe wrote to defendant. Doe had asked defendant or written in a letter that she wanted to know some of defendant’s sexual fantasies. Doe had written to defendant about a fantasy that she had. Doe indicated that defendant always talked about wanting to play strip poker with her and Adriana. G-unit was a nickname that Adriana and Doe had given to defendant. Doe had one dimple. Defendant had previously commented that he thought it was unusual that she only had one dimple. Doe was certain that the letter was from defendant.
Doe did not recall that she testified at the preliminary hearing that Adriana was always with her during her visits to defendant’s classroom. Doe did not recall telling one of the police detectives that defendant had rubbed and grabbed her buttocks 10 times. Doe did not recall telling one of the police detectives that during track practice, defendant told her she had a nice butt or that Adriana had overheard him make this comment. Doe remembered, however, that defendant had said to Adriana, “Doesn’t [Doe] have a nice butt?” Doe indicated that it made her uncomfortable when defendant mentioned her butt and touched her, but she never told him to stop. She did not think to stop seeing defendant. She sat next to defendant at one of the dinners with other track team members, and he tried to touch her during one of the dinners, but she pushed his hand away.
Doe claimed at trial she had no recollection as to how many times defendant had touched her vagina. Doe previously testified that she was alone in defendant’s car five times and on another occasion, had testified that she was in defendant’s car alone with him twenty times. Even before defendant touched her vagina, Doe felt uncomfortable with him. Doe had previously testified that defendant had touched her over her underwear on her vagina one or two times. At another proceeding, she had also testified that he had touched her six times. At trial, Doe denied that she ever touched defendant’s penis skin-to-skin. She previously testified, however, that she did have skin-to-skin contact with his penis.
Doe threw away other letters she had from defendant after her mom found the one letter. Doe previously testified that defendant gave her the one letter himself, but at a prior proceeding, she testified that Adriana gave her the letter. Doe previously testified that other kids on the track team asked her to play strip poker. She testified at trial that both defendant and other kids had asked her to play.
Doe would not have come forward about defendant touching her if her mother had not found the letter. Doe did not want to testify. She felt that she had let things go too far, and that she should have said something to somebody. She felt that some of the things that happened were her fault. Doe and Adriana were no longer friends. Doe had been threatened at school.
Covina Police Detective Paul Barraco was assigned to investigate Doe’s claim. He obtained documents from defendant’s school district personnel file that had been written by defendant. The documents and the letter were taken to the Los Angeles County Sheriff’s Department’s crime laboratory to be analyzed. William Leaver, a forensic document examiner employed by the Los Angeles County Sheriff’s Department, testified that the letter found by Mrs. D. was written by defendant, including the body, the beginning “Hey [Doe]” and the signature G-unit.
Defense
Adriana was in her senior year at Gladstone High School at the time of trial. During the spring semester of the 2003-2004 school year, Adriana was a member of the school track team. Adriana met Doe the second day of track practice and they became friends. She went to defendant’s classroom with Doe at lunch and sometimes during sixth period. Adriana never saw defendant touch Doe’s shoulders or do anything inappropriate in the classroom. Adrianna never heard defendant say “nice butt” to Doe either in the classroom or at any other time, and defendant never asked her “doesn’t [Doe] have a nice butt?”
Adriana went out to dinner with defendant, Doe, and other track team members a few times. Usually defendant drove Adriana, Hector and Doe home. Defendant dropped Doe off last only two times.
Adriana never gave Doe a note from defendant, she never referred to defendant as G-unit, and G-unit was Hector’s nickname. Adriana never heard defendant mention strip poker. According to Adriana, Doe told her at least seven times that she had a crush on defendant. Doe would get angry when other girls would talk to defendant.
Hector was on the track and cross-country teams at Gladstone High School before he graduated in 2004. He met Doe during art class at the very beginning of the 2003-2004 school year and they became friends. He introduced Doe to defendant because she wanted to run track. Doe and Adriana called Hector G-unit, and he had never heard them refer to defendant as G-unit.
Hector spent almost every morning before school, lunchtime and after school in defendant’s classroom. Hector never saw defendant touch Doe or say anything about her butt.
Hector never saw defendant do anything inappropriate when defendant took them to eat or drove them home. Defendant drove Hector home almost every day during spring semester. The times that Hector was in defendant’s car, Doe was dropped off first. After May 2004, defendant no longer drove Hector home.
Maria Christina Treto-Vasquez (Vasquez) worked in the office at Gladstone High School. She and defendant had lived together for four years, together with her 13-year-old daughter, and she wanted to marry defendant. In May 2004, she wrote a letter to defendant about sexual fantasies in an attempt to invigorate their relationship. When defendant wrote back a letter detailing his fantasies about being with two women, she told him she did not like the letter because she wanted the fantasies to be about her. She asked him to rewrite the letter or send her a new one, but she never received a new one. Vasquez indicated that defendant called her by the nicknames “dimples” and “cutie.” Defendant had shown Vasquez a copy of the letter to Doe after Doe’s father had given it to him.
Defendant testified on his own behalf. He was 39 years old and had been a math teacher at Gladstone High School for 14 years. He was the head cross-country coach and assistant track coach.
Hector introduced Doe to him during the spring semester of 2004. She wanted to join the track team and was a good runner.
Doe came to his second period class several times. Doe came to defendant’s classroom for lunch almost every day during second semester. Defendant was never alone in his classroom with Doe. He never said she had a nice butt or anything provocative to Doe. He never touched or rubbed her neck, shoulders, rear end or legs.
Defendant took the track team members to dinner after meets or practices as incentive to stay on the team. He also drove some team members home, in order to keep them on the team. During the second semester, he always drove Adriana, Hector and Doe home. He was alone in his car with Doe a couple of times at the beginning of summer after cross-country practice.
After receiving a letter from Vasquez sometime in May 2004, defendant sent a letter back to her. She disapproved of it. Defendant then wrote the letter that Mrs. D. found. He wrote only the body of the letter, and it was intended for Vasquez. He did not write “Hey [Doe]” or G-unit. Defendant testified that he referred to Vasquez as “dimples,” and he simply forgot to put the “s” in the letter where it referred to “dimple cutie.” He wrote the letter between classes at school over several days and kept it behind his attendance sheet on his desk. He believed he had put the finished letter either in his bag or in a cabinet in the classroom. The cabinet was not always locked. Sometime in May 2004, he realized the letter was missing and was very concerned.
Doe came to the summer cross-country practices that started the week after school ended. On two separate occasions, defendant took Doe home and she was alone in the car with him. He never touched her during these times.
On June 28, 2004, he was teaching summer school and he received a phone call from Doe’s father on his cellular telephone. Defendant’s cellular telephone bill showed the call from Doe’s father came in at 1:00 p.m. Doe’s father told defendant that he wanted to talk to him about a personal matter and told defendant that he was waiting in the parking lot. Defendant told Doe’s father that he could not leave his classroom but would meet him after class. Defendant never called Doe’s cellular telephone. Based on his cellular telephone bill, the next call he made was at 2:08 p.m.
Defendant met with Mrs. D. and Doe’s father. Doe’s father gave him the letter. Defendant recognized it and was very surprised. Defendant never intended for Doe or her family to have the letter. Defendant did not say anything to Doe’s father about the letter because he knew he had written the body of the letter. Doe’s father then told defendant that he did not want defendant to go to jail, that he did not want to tell the administration, and that he knew defendant was a “good guy.” Doe’s father never asked defendant if he wrote the letter.
Doe’s father indicated that defendant should leave the school and that it was not fair to have Doe leave. Defendant told him that he would not leave. At that point, Doe’s father got angry and asked defendant if he knew what they did to child molesters in jail. Defendant then told Doe’s father that he could not leave until the end of the next school year. Doe’s father told defendant that he knew people in the district and that if defendant was at school in September, he would “take this farther.” Doe’s father called defendant around 8:00 p.m. that night. Doe’s father told defendant that he did not have to leave the school and that everything was a misunderstanding. Defendant was relieved and went back to his normal routine.
On June 23, 2004, defendant arrived at school for the last day of summer school. The principal, Scott Magnusson (Magnusson), asked to speak with him because Doe had made some allegations against him. Magnusson instructed defendant to meet with him, a union representative and a California Teacher’s Association representative. Magnusson outlined the allegations against him. Defendant was scared and nervous. Defendant became very defensive in the meeting because he saw his “whole life was flashing before” his eyes. Magnusson said to defendant something about the letter being “horrible.” Defendant told Magnusson that Doe’s parents did not ask him if he had written the letter. Defendant twice denied to Magnusson that he had written the letter to Doe. He did not say that he had not written the letter, because he thought the question was whether he had written it to Doe. Magnusson asked if defendant had ever been alone in his classroom with Doe, and defendant replied “I don’t know,” and “maybe.” After consulting with the union representative, defendant later told Magnusson that Adriana was always with Doe. Defendant told Magnusson that he had never touched Doe on intimate parts of her body. Defendant did not tell Magnusson that he had written the letter to his girlfriend, Vasquez. Defendant admitted that in hindsight, he should have told Magnusson he wrote the letter for someone else.
Defendant and the People agreed hearsay statements from defendant’s meeting with Magnusson could be admitted into evidence.
Rebuttal
Leaver opined that the entire letter, including “Hey [Doe]” and “G-unit” were written by the same person. According to Magnusson, during his meeting with defendant, defendant told him he did not write the letter and did not know who could have written the letter.
DISCUSSION
Defendant contends that the judgment must be reversed for two reasons. Defendant first claims the evidence was insufficient to support his conviction. Defendant also contends that the trial court failed to fulfill its duty under section 1138 and in doing so effectively misintructed jurors, resulting in prejudice to defendant sufficient to constitute reversible error. Defendant raises additional contentions on appeal. We first address, however, the bases upon which defendant claims reversal is required.
Sufficiency of the Evidence
Defendant contends that the judgment is not supported by substantial evidence. Defendant claims Doe’s testimony was inconsistent and contradicted by two witnesses, and therefore, the evidence was insufficient to establish guilt beyond a reasonable doubt.
Standard of Review
When the sufficiency of the evidence is challenged, the reviewing court’s task is to “‘determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt’” (People v. Johnson (1980) 26 Cal.3d 557, 576), that is, whether “‘“‘any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt’”’” (People v. Cunningham (2001) 25 Cal.4th 926, 1010). We conclude that the record supports a determination that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. (Ibid.)
The basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support are well settled. “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) The court “‘must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) As to credibility issues, “‘it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’” (Ibid.)
In applying the substantial evidence standard of review of a criminal case, the authority of an appellate court to reject testimony of a witness accepted as credible by the trier of fact is limited to circumstances in which “that testimony is inherently improbable or impossible of belief . . . [or] ‘inherently implausible in light of the whole record.’” (People v. Jackson (1992) 10 Cal.App.4th 13, 21.) “[T]here must exist either a physical impossibility that [the facts found by the trier of fact] are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment . . . .” (People v. Huston (1943) 21 Cal.2d 690, 693, overruled in part on other grounds by People v. Burton (1961) 55 Cal.2d 328, 352.)
Section 647.6, Subdivision (a), Violation—Misdemeanor Annoying or Molesting a Child
The violation of section 647.6, subdivision (a) was based on the letter defendant wrote to Doe. Section 647.6, subdivision (a), as in effect in 2004 and 2005 during the proceedings in this case, provided: “Every person who annoys or molests any child under the age of 18 shall be punished by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.” In section 647.6, subdivision (a), “[t]he words ‘annoy’ and ‘molest’ are synonymously used (citation); they generally refer to conduct designed ‘to disturb or irritate, esp. by continued or repeated acts’ or ‘to offend’ (citation); and as used in this statute, they ordinarily relate to ‘offenses against children, (with) a connotation of abnormal sexual motivation on the part of the offender.’ [Citation.] Ordinarily, the annoyance or molestation which is forbidden is ‘not concerned with the state of mind of the child’ but it is ‘the objectionable acts of defendant which constitute the offense,’ and if his conduct is ‘so lewd or obscene that the normal person would unhesitatingly be irritated by it, such conduct would “annoy or molest” within the purview of the statute. [Citation.]’” (People v. Carskaddon (1957) 49 Cal.2d 423, 426.)
The record shows that the letter sets forth fantasies of explicit sexual conduct by or with Doe. A significant body of evidence indicates it was written for Doe. The People’s expert testified that the entire letter, including the opening phrase “Hey [Doe],” was written by the same person and that it matched the handwriting exemplars written by defendant. Defendant did not present testimony of his own handwriting expert to the contrary. The letter referred to the recipient as “dimple cutie.” Doe testified she had one dimple and defendant had commented how unusual it was that she had only one dimple. Vasquez testified that defendant’s nickname for Vasquez was “dimples.” When Doe’s parents and later, school official Magnusson, confronted defendant with the letter, he never said he had written it to Vasquez. From the jury’s guilty verdict on Count 3, we can infer that it did not find defendant’s testimony regarding the letter credible. A jury’s determination as to credibility cannot be reversed on appeal absent specific circumstances not applicable in this case. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jackson, supra, 10 Cal.App.4th at p. 21.) Viewing the entire record in the light most favorable to the judgment below, we determine there is substantial evidence such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt of violating section 647.6, subdivision (a). (People v. Johnson, supra, 26 Cal.3d at p. 578.)
Section 288, Subdivision (c)(1) Violations—Lewd Acts Upon a Child Age 14 or 15
Defendant was charged with violation of section 288, subdivision (c)(1), a felony, in relation to incidents in which defendant touched Doe on her leg and vagina and moved her hand in order to have her touch him on his leg and penis. Section 288, subdivision (c)(1) provides: “Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense . . . .” Subdivision (a) of section 288 provides: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . .”
Defendant as well as Doe and Adriana testified that defendant and Doe were alone in the car on at least two occasions. Doe testified that defendant touched Doe on her leg and vagina and moved her hand in order to have her touch him on his leg and penis on some occasions when they were alone in the car.
On appeal, defendant points to various inconsistencies in Doe’s testimony at trial as compared with her testimony at the preliminary hearing and the first trial. None of these relate to the determinative facts in Doe’s testimony. She was consistent in testifying that when she was alone in the car with defendant, he touched her leg and vagina and moved her hand in order to have her touch his leg and penis. There is nothing in the record that would support a determination that Doe’s testimony as to these facts was inherently improbable, impossible of belief or inherently implausible in light of the whole record. (People v. Jackson, supra, 10 Cal.App.4th at p. 21.) Thus there is no basis for rejection of Doe’s testimony regarding the essential elements of violation of section 288, subdivision (c)(1). (Ibid.) Accordingly, we conclude that the record contains substantial evidence such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt of the offense set forth in section 288, subdivision (c)(1). (People v. Johnson, supra, 26 Cal.3d at p. 578.)
Section 1138 and Instructional Error
Defendant contends that it was reversible error for the trial court to remain silent and not respond to statements made by Juror No. 5 in the misconduct inquiry regarding whether it was permissible for a juror to cut a deal, that is, to compromise his views regarding guilt in order to reach a decision and go home. Defendant asserts that the trial court’s failure to respond to the juror’s question was inconsistent with the court’s duty pursuant to section 1138 to answer questions on points of law raised by jurors during deliberations. Defendant also contends that the court’s silence constituted a prejudicial misinstruction in regard to each juror’s duty to vote the juror’s independently held belief as to guilt or innocence based on the evidence presented. Defendant asserts that these errors were prejudicial to him and were not harmless beyond a reasonable doubt, and therefore, his conviction must be reversed.
The People counter that the trial court did not violate section 1138, in that there was no jury question before the court. They further assert that defendant waived his right to appeal the issue by failing to object during the misconduct inquiry. The People add that the trial court’s silence in response to Juror No. 5’s statements did not amount to misinstruction of the jury, and that even if the trial court erred in remaining silent, such error was harmless.
Facts Relevant to Defendant’s Contentions
The jury began deliberations on April 6, 2005 at 1:30 p.m. The parties had previously agreed that Judge Gutierrez could substitute for Judge Marrs, the trial judge, to hear closing argument, read jury instructions, and take the verdict. The next afternoon, the jury submitted a jury question to the trial court by written note. The note stated that “[o]ne member of the jury has openly stated that he feels this ‘whole system is a joke’. He asked if we could ‘cut a deal’ as in the O.J. and Michael Jackson trials, and is not considering the evidence given to us.”
The trial court ordered juror information sealed at the close of the trial. References herein to any juror by pronoun will be in the masculine gender.
Defendant’s counsel objected to having Judge Gutierrez consider the jury question rather than Judge Marrs, who had the most knowledge about the case and the jurors. Defense counsel stated: “I realize that by going over to next Tuesday, which would be April 12th, we will certainly be losing one of the jurors, who just happens to be the jury foreperson, and probably inconvenience a lot of people. [¶] But I believe the bench officer most knowledgeable about this case should be the one to handle this particular aspect of the proceedings.” Judge Gutierrez then heard from the prosecutor, who countered that the parties earlier stipulated to substitute Judge Gutierrez for Judge Marrs for this phase of the proceedings. Citing the stipulation, Judge Gutierrez proceeded by calling in the jury foreperson, Juror No. 6.
The court learned from the foreperson that the question was about Juror No. 5, and then asked the jury foreperson why he believed Juror No. 5 was not considering the evidence. The jury foreperson replied that “he just keeps bringing in all this other stuff that has absolutely nothing to do with anything . . . . [H]e has complained . . . that he feels the entire system is a joke. [¶] He actually started out that way. Was it yesterday? It’s been so long now . . . . The court asked whether Juror No. 5 was discussing other high profile cases. The jury foreperson said, “Yes. Like the Michael Jackson case, the O.J. Simpson case, we all know that . . . they cut deals in that case . . . . Is it against the law to cut a deal.” In response to the court’s further questions, the jury foreperson confirmed that Juror No. 5 was discussing the facts of the case with the other jurors. The jury foreperson was excused.
The court called in Juror No. 5 and asked him what he meant about “the whole system is a joke, cutting a deal as in O.J. and the Michael Jackson trials.” Juror No. 5 responded “about it being a joke, when we first got in there, which was yesterday, I made a statement that this is a joke. [¶] What I meant by that was the whole trial I didn’t see evidence, concrete evidence either way.” With respect to cutting deals, Juror No. 5 explained that the jury “said this is getting too far. We need to do something. And I said I have a question . . . . [¶] [I]n the O.J. trial they obviously cut deals . . . because like all of a sudden they said let’s get out of here and go home because they were there 6 months. I said I have a question. Is it illegal to cut deals and they said I can’t believe you’re asking that.”
In response to the court’s follow-up question, Juror No. 5 said, “Is it illegal for the jury to give and take, like--.” The court said: “To bargain.” Juror No. 5 replied: “I’ll give here if you give there. There’s three things there.” The court said: “Compromise.” Juror No. 5 responded: “Kind of. I don’t want to break any laws, of course. So I said is it illegal. I was asking a question.” Then Juror No. 5 mentioned that Juror No. 2 brought in typed notes. After brief review of the Juror No. 2 information, the court ordered Juror No. 5 not to discuss the courtroom conversations with the other jurors and excused him.
Out of the presence of the jury and alternates, the court indicated that its conclusion was that Juror No. 5 was deliberating, and his discussions about “bartering . . . indicate that he’s engaging in deliberation. And apparently he’s been told that it’s not proper. He’s still engaged in the give and take of the decision making . . . .”
The prosecutor then asked the court “to admonish either [Juror No. 5] or the entire jury that they’re not to consider anything in their deliberations that’s not evidence” in the case. The court responded: “[W]ouldn’t I just be re-reading of the instruction that they already have? Essentially it is. And I think they’re fully aware of it based on No. 6 and me reminding Juror No. 5 that they can’t consider these other things.” Counsel for both parties submitted on the matter.
The court brought the jury foreperson back in, informed the juror that he should have done this at the end of their discussion, but did not, and so now he was ordering the juror not to discuss the conversation in the courtroom with any other jurors.
The court then denied the prosecution’s motion to substitute an alternate juror for Juror No. 5. On the next day, April 8, 2005, at 4:15 p.m., the jury indicated a verdict had been reached as to counts 1 and 3. After continuing deliberations, the jury indicated at 4:30 p.m. that a verdict had been reached as to count 2. The verdicts were then rendered in the courtroom.
After the verdicts convicting defendant on all counts, defendant obtained new counsel. His new attorney filed a motion for a new trial based upon juror misconduct and for juror information disclosure for preparation for the hearing on the new trial motion. In her declaration in support of the new trial motion, defendant’s new counsel stated that defendant’s trial counsel had indicated that “there was an ‘informal’ agreement that one of the jurors had to leave deliberations on Friday afternoon, April 8th. Therefore, on Friday afternoon, sometime between 3:15 and 4:00 p.m., the parties were summoned in to the courtroom to discuss what to do in the event the jurors did not reach a verdict before the one juror had to leave. While in the courtroom, [defendant’s trial counsel] could hear the jurors yelling in the deliberation room . . . . Thereafter, at approximately 4:15 p.m. the jury indicated that they had reached a verdict as to Counts One and Three. [Defendant’s trial counsel] then returned to the courtroom and could still hear the jury arguing. At 4:30 pm the jury indicated they had reached a verdict as to Count Two. Thereafter the verdicts were taken. [Defendant’s trial counsel] thought that perhaps due to the one juror’s schedule conflict that the other[] jurors may have acted improperly in reaching a verdict.”
Duty under Section 1138
We first address defendant’s contention that the trial court did not comply with its duty under section 1138 to respond to juror questions. Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” The trial court has discretion to determine the information needed to answer the jury’s question. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.)
The People claim there was no jury question before the trial court, and hence, section 1138 did not require that the trial court respond in any way. They point out that Juror No. 5 made statements about, but never directed an express question to the trial court as to, whether it was permissible for a juror to cut a deal, that is, to compromise in reaching a decision, based upon his desire to go home.
As explained more fully below, we conclude, however, that there was a jury question before the trial court and it triggered the duty mandated by section 1138. The record shows that the trial court interpreted Juror No. 5’s statements as a question. After Juror No. 5 left the courtroom, the trial court commented that Juror No. 5 was “basically asking the question is it proper.” In any event, Juror No. 5’s expression of confusion as to his duties as a juror was sufficient to trigger the trial court’s duty to respond under section 1138. In People v. Gonzalez, supra, 51 Cal.3d 1179, the California Supreme Court stated that “the statute imposes a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (Id. at p. 1212.) Although it was Juror No. 5 who originated the question, the matter came to the trial court’s attention as a written jury question which the jury foreperson, Juror No. 6, submitted to the court during the course of deliberations. The note and the jury foreperson’s comments to the trial court during the misconduct inquiry that ensued indicated that Juror No. 5’s question had been discussed by the jury prior to submitting the inquiry.
The trial court made no affirmative response to the question to Juror No. 5, Juror No. 6 as the foreperson, or any other jury member. During the misconduct inquiry, the trial court expressly asked Juror No. 5 if he was referring to compromise but never clarified that a compromise vote would violate the instructions originally given to the jury. Out of the presence of the jurors, at the close of the inquiry, the prosecutor requested the trial court to admonish either Juror No. 5 or the jury as a whole not to consider anything in their deliberations that was not evidence in the case. The trial court denied the request, however, noting that the court would be just rereading the instruction the jury already had been given and that, based on their comments during the inquiry, Juror No. 5 and Juror No. 6 were fully aware of their duty.
The original jury instructions were available to the jury in written form in the jury room. Nevertheless, nothing in the record indicates that the trial court referred the jury foreperson or Juror No. 5 to any instruction, or that Juror No. 5, the jury foreperson or any other juror had referred to any instruction prior to submitting the jury question. One of the original instructions was substantially similar to CALJIC No. 17.40, and entitled Individual Opinion Required—Duty to Deliberate. It stated: “The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you become convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. [¶] Do not decide any issue in this case by the flip of a coin, or by any other chance determination.”
Section 1138 requires a response to a jury’s question related to applicable points of law in the form of reiterating instructions (see People v. Gonzalez, supra, 51 Cal.3d at pp. 1212-1213) and, when indicated, giving an additional explanation (see People v. Rigney (1961) 55 Cal.2d 236, 246).To comply with the section 1138 mandate, “a court must do more than figuratively throw up its hands . . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
The trial court therefore had a duty under section 1138 to respond to Juror No. 5’s inquiry. Although the trial court has discretion in determining the content of the response to a jury question during deliberations, the trial court is required to provide an affirmative response. (§ 1138; People v. Beardslee, supra, 53 Cal.3d at p. 97; People v. Gonzalez, supra, 51 Cal.3d at p. 1213.) In the instant case, the trial court did not figuratively throw up its hands. The trial court took action, but its action was limited to questioning the jury foreperson and Juror No. 5 and determining the nature of the confusion expressed in the written jury question. We conclude here that although the trial court conducted an inquiry, it did not make a response and thus, did not comply with the section 1138 mandate. (Ibid.)
Misinstruction
Defendant contends that “[t]he trial court’s silence in the face of Juror Number 5’s repeated concerns . . . is tantamount to a misinstruction.” Misinstruction does not require that the trial court make an explicit erroneous statement. (See People v. Gainer (1977) 19 Cal.3d 835, 848, fn. 10 [Gainer].)
Misinstruction on a matter such as voting on the basis of a juror’s desire to go home affects a defendant’s constitutionally protected rights to a fair trial and a conviction only upon unanimous verdict supported by evidence sufficient to reach that verdict beyond a reasonable doubt. (Gainer, supra, 19 Cal.3d at pp. 848-849.)
Under the circumstances here, where the trial court raised the possibility that Juror No. 5 was asking about the propriety of a compromise verdict and of voting based on his desire to go home, the trial court’s silence could have been interpreted as indicating the court’s agreement that a juror could vote in such a manner. It created the potential for violation of defendant’s constitutionally protected rights to a fair trial and a unanimous verdict for conviction. (Gainer, supra, 19 Cal.3d at p. 848.)
Waiver
The People contend that defendant waived his right to appeal any error based upon section 1138, in that he failed to object to the trial court’s decision not to instruct the jury or otherwise respond to Juror No. 5’s statements during the misconduct inquiry. The People also argue that, by his failure to object during the inquiry, defendant invited any error based on the trial court’s silence. We disagree.
During the discussion between the court and counsel regarding Juror No. 5, the prosecutor requested an admonition that the jurors were not to consider in their deliberations anything other than the evidence in the case. The court rejected that request on the ground the jurors already had been instructed on that issue. At that point, any objection and request for admonition by defense counsel clearly would have been futile. The failure to object therefore did not waive defendant’s contention on appeal. (Cf. People v. Stansbury (1993) 4 Cal.4th 1017, 1056; People v. Lewis (1990) 50 Cal.3d 262, 282.)
Further, whether or not defendant made a proper objection is not determinative of our authority to review the issue of misinstruction in this case. An instruction or misinstruction which affects “the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to” it. (People v. Graham (1969) 71 Cal.2d 303, 319-320.) As discussed above, the subject matter of the misinstruction in the instant case is a fundamental constitutionally imposed standard for determining defendant’s guilt or innocence. (Gainer, supra, 19 Cal.3d at p. 848; People v. Wolfe (2003) 114 Cal.App.4th 177, 187-188.) We conclude that the failure of defendant’s counsel to object when the trial court declined to reinstruct the jury during the misconduct inquiry does not bar appellate review of the trial court’s failure to respond to the jury inquiry.
Prejudice Standard
In order to reverse a conviction based upon a section 1138 error or instructional error, prejudice to the defendant must be shown under the appropriate standard of review. (People v. Frye (1998) 18 Cal.4th 894, 1007 [section 1138 error]; People v. Andrade (2000) 85 Cal.App.4th 579, 588 [instructional error].) Under People v. Watson (1956) 46 Cal.2d 818 at page 836, reversal is required if, after considering the entire record, “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the [state constitutional] error.” Under Chapman v. California (1967) 386 U.S. 18 at page 24, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Both a violation of the section 1138 mandate and instructional error may implicate a defendant’s right to a fair trial under the California and federal Constitutions. (Frye, supra, at p. 1007; Andrade, supra, at p. 588.) Accordingly, we will apply the Chapman standard in order to determine if the errors in the instant case warrant reversal of the conviction. (See Andrade, supra, at pp. 588-589.)
The issue presented here is whether reversible error occurred based upon the trial court’s failure to respond and the attendant potential for misinstruction . In Gainer, supra, 19 Cal.3d 835, the California Supreme Court addressed a similar issue in slightly different factual circumstances. In Gainer, when the jury expressed difficulty in reaching a unanimous verdict, the trial court gave an instruction to the effect that each “holdout” juror is to consider whether any doubt the juror has is reasonable in light of the fact that so many of his fellow jurors, equally as intelligent as the “holdout” juror, do not have such doubt. (Id. at p. 848.) In effect, the trial court was erroneously instructing the jury that a juror may base his or her vote on some factor other than the juror’s own honestly held opinion based upon the juror’s evaluation of the evidence and applicable law set forth in the jury instructions. On review, the Supreme Court indicated that when jurors are instructed to weigh their doubt against the position of the majority of jurors, “[t]hey are thus deflected from their proper role as triers of fact, as effectively as if they had been instructed to consider their doubts as to guilt in light of their own prejudices or desire to go home.” (Ibid., italics added.)
The Gainer court reiterated that “the decisions of both this court and the United States Supreme Court reflect the importance of restricting the foundation for the jury’s decision to the evidence and arguments presented at trial. [Citations.] An equally significant principle relates to the right of both the People and the defendant to the individual judgment of each juror on the issue of guilt.” (Gainer, supra, 19 Cal.3d at p. 848.) Like the Gainer instruction, a misinstruction or a failure to respond to a juror’s inquiry as to whether the juror can render a vote based on the juror’s desire to go home threatens the defendant’s constitutional rights to have his guilt or innocence determined by the unanimous verdict of the jury. (Id. at pp. 848-849.)
In Gainer, the California Supreme Court specified that a reviewing court is required to assess the potential effect of the error, that is, the potential for displacement of the independent judgment of each juror in favor of considerations of compromise and expediency. (Gainer, supra, 19 Cal.3d at pp. 849-850.) The Gainer court indicated that any court’s attempt to inquire into the actual volitional quality of a particular jury verdict through an evidentiary hearing would involve inherent difficulties, in that “[c]ourts are generally unable to recreate effectively the events, subjective and objective, occurring during jurors’ deliberations in order to evaluate the actual effects of an instruction.” (Id. at p. 849.) Hence, there can be no assurance that remanding a case for such an evidentiary hearing would adequately protect defendant’s constitutional rights.
In the instant case, the facts indicate that the potential effect of the trial court’s silence was that Juror No. 5 (and possibly other jurors) would vote with the majority, rather than his own honestly held view, to render a guilty verdict so that he and everyone else could go home. The submission of the jury inquiry after a day and a half of deliberations, and the comments of Juror No. 5 and the jury foreperson at the misconduct inquiry, indicate the probability that Juror No. 5 was a “holdout” juror. That is, but for Juror No. 5’s insistence that he saw no concrete evidence of guilt, the vote and verdict for conviction would have been rendered prior to the time of the jury question submission. Both the jury foreperson and Juror No. 5 clearly communicated to the trial court that there was a question of whether it was legal for a juror to compromise his vote in order to be able to end the deliberations and go home. The trial court did not answer the question. The trial court failed to order the jury foreperson not to discuss the conversation in the courtroom with the other jurors until after the foreperson had returned to the jury room and Juror No. 5 had been questioned. Thus, it is possible the jury foreperson conveyed some of the conversation to the other jurors. In any event, the other jurors received no response from the trial court to their jury question, and could have drawn the conclusion that what Juror No. 5 had been asking about was permissible.
Other factors suggest that Juror No. 5 and perhaps other jurors may have voted for verdicts that were contrary to each juror’s honestly held view. That there was disagreement among the jurors is indicated by the length of the deliberations—approximately two and a half days, for a trial in which presentation of evidence took about one and a half days. Juror No. 5, as well as other jurors, may have felt a degree of indirect coercion to reach a verdict before the foreperson, Juror No. 6, was to be excused from further service at the close of deliberations on Friday, April 8. It may be no coincidence that the verdicts were rendered about 4:30 p.m. on Friday, April 8. Raised voices so near the time the verdicts were reached suggest there may have been disagreement even at that late hour and that jurors were pushing to reach verdicts before the jury foreperson was excused. That the first trial ended in mistrial because jurors could not reach agreement also supports the possibility of substantive disagreement among jurors as to guilt or innocence.
These factors, taken together, create a plausible scenario in which Juror No. 5 and possibly other jurors voted to convict on all counts contrary to their honestly held belief that reasonable doubt existed. Section 1181, subdivision 4, provides that grounds for a new trial exist “[w]hen the verdict has been decided . . . by any means other than a fair expression of opinion on the part of all the jurors.”
Whether Juror No. 5 engaged in juror misconduct by willfully violating the jury instructions and his oath or not, there is an impermissible potential that he or possibly other jurors could have interpreted the trial court’s silence as confirming that a juror could cast a guilty or not guilty vote in spite of the juror’s honestly held view to the contrary for the expedient reason of going home. (People v. Palmer (2001) 24 Cal.4th 856, 868, conc. opn. of Mosk, J.; Gainer, supra, 19 Cal.3d at pp. 848-849.) Because of the potential that defendant’s conviction was the result of Juror No. 5 or any other juror voting on the basis of expediency, we are not able to conclude that the section 1138 error or the associated instructional error were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The judgment therefore must be reversed. (Ibid.)
As previously indicated, defendant raised several other contentions. In view of our conclusion that the judgment must be reversed for the foregoing reasons, we decline to address any of the other contentions.
DISPOSITION
The judgment is reversed and the cause is remanded for a new trial. The order denying defendant’s motion for a new trial, including the denial of the motion for juror information disclosure, is vacated.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.