Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA065059. Cynthia Rayvis, Judge.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Jorge J. Hernandez appeals from the judgment entered after a jury convicted him of willful, deliberate and premeditated attempted murder. He contends the trial court committed prejudicial instructional and evidentiary error and improperly denied his motion for new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information dated January 29, 2008 charged Hernandez with the attempted murder of Felix Ramirez (Pen. Code, §§ 664, subd. (a), 187, subd. (a).) The information specially alleged that (1) the attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)); (2) the offense was committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (3) a principal personally used and discharged a firearm causing great bodily injury to the victim (§ 12022.53, subds. (b)-(e)). Before trial, the court dismissed pursuant to section 995, subdivision (a), the criminal street gang special allegation.
Statutory references are to the Penal Code unless otherwise specified.
With the dismissal of the criminal street gang special allegation under section 186.22, subdivision (b)(1)(C), the People could not proceed with the special allegations against Hernandez under section 12022.53 because, according to the evidence and their theory of the case, Menjivar was the shooter and Hernandez aided and abetted his conduct. (§ 12022.53, subd. (e) [§ 12022.53 enhancements apply to a principal only when the person violated § 186.22, subd. (b), and any principal committed an act specified in § 12022.53, subds. (b), (c) or (d)].) Hernandez instead received a two-year firearm enhancement under section 12022, subdivision (d), which he does not challenge on appeal.
2. The Evidence Presented at Trial
According to the evidence presented by the People, Hernandez met Mireya Beltran in early 2007, and the two began dating. Hernandez moved into Beltran’s Culver City residence on Duquesne Avenue in March 2007. The two had a tumultuous relationship, and Hernandez was a jealous boyfriend, who did not want Beltran around his friends or coworkers. Beltran knew that Hernandez owned a gun and had brought it, along with ammunition, into her home, keeping it in a red jacket. She asked him to remove the gun from her home. Beltran reported that Hernandez had told her that he knew someone who could kill easily, although at trial she said her reports were not true.
Several months after Hernandez moved in with Beltran, the two had an argument. Hernandez took many of his belongings from Beltran’s home, including the red jacket with the gun in it, and stored them at the home of Carlos Arias, who lived on Menlo Avenue in Los Angeles. When Arias noticed the jacket was heavy, he asked Hernandez if anything was in it, and Hernandez replied, “‘I have a gun.’” Arias put the jacket in a closet.
Hernandez knew Arias for 17 years, and was married to Arias’s cousin, Dinorah Martinez, as of the time of trial. Hernandez and Martinez were separated for some time. When Hernandez was together with Martinez, they lived on Menlo Avenue, next to Arias.
In early August 2007, after Hernandez and Beltran had another argument, the two were barely speaking and considered separating. Hernandez was sleeping in Beltran’s son’s bedroom. On the evening of August 10, 2007, Beltran and her friend, Sylvia Yanez, planned to go to a night club in Marina del Rey. Yanez asked Hernandez if he wanted to go with them, but he declined. Beltran and Yanez left Beltran’s home and arrived at the club about 11:00 p.m. Once at the club, they went to the bar, and Yanez pointed out to Beltran that Ramirez, a former boyfriend of Beltran, was there. Ramirez approached Beltran and asked if he could kiss her. She refused, telling Ramirez that she had a boyfriend. Beltran and Ramirez spoke for about 15 minutes, and Ramirez gave Beltran his cellular telephone, telling her to “‘call [Hernandez] and tell him that [I] will come fight with him.’” Beltran called, but Hernandez did not answer. Ramirez became loud and angry, and security at the club asked Beltran if she wanted Ramirez removed from the club. Beltran declined, but Ramirez continued to be aggressive with her, telling her that he would tell Hernandez anything to make Hernandez leave her. He threatened to hit Beltran and anyone who danced with her. About 11:30 p.m., club security again approached and escorted Ramirez from the club. Ramirez said he was going to look for Hernandez to fight him. Beltran said that Hernandez was not home, and Ramirez said he then would wait for Beltran and “‘have it out’” with her.
About the same time, Arias received a telephone call from Hernandez but did not answer. Around midnight Hernandez showed up at Arias’s house and asked for his red jacket. Hernandez retrieved the jacket and then left. Although at trial Arias initially said that Hernandez appeared nervous, he acknowledged telling the police that Hernandez was calm and later testified that Hernandez was calm when he left the house and did not appear mad or sad. Hernandez told Arias that he was “‘going to go back over there’” and that Beltran’s ex-boyfriend was pounding on the door.
After leaving Arias’s house, Hernandez found Larry Oswaldo Menjivar, with Etwi Hernandez, drinking beer outside on Menlo Avenue. Etwi did not know Hernandez, who approached, wearing a red jacket, and began talking to Menjivar, telling Menjivar that he was having problems with a woman. Etwi went inside to the bathroom, and when he returned Hernandez and Menjivar were at Hernandez’s car. Hernandez put the red jacket in the trunk and said, “‘Let’s go drinking.’” Hernandez drove Menjivar and Etwi to Duquesne Avenue in Culver City and parked about a block from Beltran’s home. The three men went into Beltran’s home and started drinking. Hernandez and Menjivar went outside to the patio to talk and then returned inside the house and continued drinking.
Because Etwi Hernandez and Hernandez share the same last name, we refer to Etwi Hernandez by his first name.
About 1:00 a.m. a Duquesne Avenue resident called in a disturbing the peace call regarding a man, who was crouching down in a driveway, talking on his cellular telephone and sounding nervous. Culver City Police Department Officers responded to the call, but did not find anyone matching the description given.
While Hernandez, Menjivar and Etwi were in Beltran’s home, Ramirez arrived. Hernandez began to argue with Ramirez on the patio. Hernandez walked with Ramirez into the street, and Menjivar and Etwi followed. Menjivar went to Hernandez’s car, while Hernandez continued to talk with Ramirez in the street. Menjivar then pulled a gun from the front passenger’s side of the car and held it behind his back. Etwi said “‘[l]et’s go’” to Menjivar, who responded that Etwi should “‘[w]ait.” Etwi walked away, and as Menjivar approached Ramirez and Hernandez, Hernandez moved away, toward his car. While walking down the street, Etwi heard a gunshot. He went to the corner, and Hernandez and Menjivar came by in Hernandez’s car, with Hernandez driving, and picked up Etwi. Duquesne Avenue residents heard the sound of a gunshot, or what sounded like a firecracker, and some saw Hernandez’s car as it sped away.
About 1:55 a.m., the officers who had responded to the disturbing the peace call saw a car, without its headlights on, run a stop sign at the corner of Duquesne Avenue and Lucerne Avenue and make a fast left turn. The officers pulled the vehicle over. Hernandez was driving; Menjivar was in the front passenger seat; and Etwi was in the back seat. Hernandez presented the vehicle registration to the officers. After the officers asked questions of Hernandez, they released him.
Hernandez then drove Menjivar and Etwi back to Menlo Avenue in Los Angeles. Hernandez said “thank you” to Menjivar, who told Hernandez that he was going to keep the gun. Hernandez stated that he could.
Police officers found Ramirez in the street about 300 feet from the patio of Beltran’s residence. Ramirez had been shot in the head by a single bullet, which had entered the back of his head on the left side and continued toward his eye. Ramirez was in a coma, and his left eye had to be removed. As a result of the gunshot wound, Ramirez has severe brain injury, cannot work, read or move his right leg and arm, has difficulty communicating and suffers from convulsions. Although he testified at trial, he could not recall the shooting or any of the events leading up to it.
Beltran and Yanez, who had stayed at the night club until about 1:30 a.m., returned to Beltran’s home and saw police there. They both were taken to the police station and interviewed. Beltran described to police her relationship with Hernandez and her encounter with Ramirez at the night club.
Hernandez was interviewed by police on August 12, 2007, after he was arrested on Menlo Avenue. Hernandez initially denied being at Beltran’s home at the time of the shooting, but said that Ramirez had called him at Beltran’s home on the night of August 10, 2007, told him to leave Beltran and stated that Ramirez and Beltran were again seeing each other. Ramirez threatened and insulted Hernandez and wanted to fight over Beltran. Hernandez responded that he no longer was dating Beltran because he had ended the relationship, he would not fight over her and Ramirez could see her. Hernandez then left Beltran’s home and got in his car. Hernandez saw Ramirez, who approached his car, but he drove off. Later in his interview, Hernandez acknowledged that he had retrieved his gun, which he said was to intimidate Ramirez, and picked up Menjivar. Hernandez put the gun under the floor mat of the front passenger side of his car. He intended only to fight Ramirez and tried to stop Menjivar from shooting Ramirez, but was afraid he would get shot as well. Hernandez gave the police Beltran’s address as his own and listed her as his emergency contact. He identified Menjivar from a photograph and had Menjivar’s telephone number in his cellular telephone. Police later found the gun used in the shooting at Menjivar’s house, and Hernandez said it was his gun.
In defense, Hernandez presented testimony from several witnesses, including Martinez, his wife, who stated that Hernandez was not a violent person. Each of these witnesses acknowledged that Hernandez had not called them for help or for a place to stay on the night of August 10, 2007. Hernandez also called as a witness Beltran’s cousin, who knew Ramirez and testified that Ramirez loved Beltran and was a jealous person.
3. The Jury’s Verdict and Sentencing
The jury found Hernandez guilty of attempted murder and found true that the attempted murder was willful, deliberate and premeditated and that a principal was armed with a firearm within the meaning of section 12022, subdivision (d). Hernandez moved for a new trial on the ground of jury misconduct, contending that during deliberations the jurors improperly discussed his failure to testify. After soliciting sworn testimony from all 12 jurors, the trial court denied the new trial motion, finding that no jury misconduct had occurred and even if it had it was not prejudicial. The court sentenced Hernandez to a state prison term of life, plus two years for the firearm enhancement.
DISCUSSION
1. The Trial Court Did Not Err by Failing to Instruct the Jury Sua Sponte on the Lesser Included Offense of Attempted Voluntary Manslaughter
The jury convicted Hernandez of attempted murder and found true the special allegation that it was willful, deliberate and premeditated. Although at trial Hernandez did not request an instruction on voluntary manslaughter, he argues on appeal that the trial court was required to instruct sua sponte on the lesser included offense because substantial evidence would have supported a verdict of attempted voluntary manslaughter instead of the greater charge of attempted murder. We disagree.
A trial court has a duty to instruct sua sponte on a lesser included offense when substantial evidence supports that the lesser included offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154.) In other words, the court must instruct on a lesser included offense “‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (Ibid.) “‘[T]he existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this context is “‘evidence from which a jury composed of reasonable [persons] could... conclude[ ]’” that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 553.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1545.) “‘[W]hen the defendant acts in “a sudden quarrel or heat of passion” (§ 192, subd. (a)), ’” the defendant is deemed to have acted without malice, even if he or she intended to kill. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Thus, a killing “upon a sudden quarrel or heat of passion” can negate the malice element of murder and reduce the offense of murder to voluntary manslaughter. (People v. Lee (1999) 20 Cal.4th 47, 58-59; see also People v. Breverman, supra, 19 Cal.4th at pp. 153-154.) The negation of the malice element of murder, and hence the reduction of the offense to voluntary manslaughter, may apply in the context of aider and abettor liability: An aider and abettor may be convicted of voluntary manslaughter, even if the shooter acted with malice. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1123; People v. Nero (2010) 181 Cal.App.4th 504, 513-518.)
“A heat of passion theory of manslaughter has both an objective and a subjective component.” (People v. Moye, supra, 47 Cal.4th at p. 549.) “‘“To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’” [Citation.]’ [Citation.] ‘[T]he factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim (citation), or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’ [Citation.]” (Id.at pp. 549-550.) “To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation. [Citation.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” [Citations.]’ [Citation.] ‘“However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter....” [Citation.]’ [Citation.]” (Id. at p. 550.) “Heat of passion [also] may not be based upon revenge.” (People v. Burnett (1993) 12 Cal.App.4th 469, 478; see also People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [“desire for revenge does not qualify as a passion that will reduce a killing to manslaughter”].) Moreover, “[a]dequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Lee, supra, 20 Cal.4th at p. 60; Fenenbock, at p. 1704.)
Hernandez contends instruction on attempted voluntary manslaughter was warranted because the evidence shows that he and Ramirez engaged in a “fiery, agitated quarrel” before Menjivar shot Ramirez. Hernandez provides no citation to the record to support his description of the words exchanged between Hernandez and Ramirez and, in addition, views the evidence myopically, selectively using the argument between him and Ramirez to claim substantial evidence exists of provocation and heat of passion to require instruction on attempted voluntary manslaughter. But when the words exchanged between Hernandez and Ramirez are viewed in context of the entirety of the events from the night of August 10, 2007 to the early morning hours of August 11, 2007, no substantial evidence exists from which a reasonable jury could have concluded that Hernandez aided and abetted the lesser included offense of attempted voluntary manslaughter, but not the greater offense of which he was convicted.
According to the evidence, Hernandez, whom Beltran described as jealous, drove from Culver City to Arias’s house on Menlo Avenue in Los Angeles and calmly retrieved the jacket he stored there with his gun inside. Hernandez then found Menjivar, also on Menlo Avenue. Hernandez had a discussion with Menjivar, suggested they, including Etwi, go drinking and drove them to Beltran’s home in Culver City. Hernandez again talked with Menjivar, while the three men were drinking, and about 30 minutes later Ramirez arrived. Hernandez and Ramirez argued on the patio, and then Hernandez moved the argument with Ramirez to the street. Menjivar went outside as well, and while Hernandez and Ramirez were talking Menjivar went to Hernandez’s car and retrieved the gun. Menjivar put the gun behind his back. As Menjivar approached Ramirez and Hernandez, Hernandez moved away, toward his car. Menjivar pulled the gun from behind and fired a single shot, striking Ramirez in the back of the head. After the shooting, Hernandez and Menjivar returned to Hernandez’s car, and Hernandez drove away, picking up Etwi, who had walked to the corner. Nothing indicates that Hernandez appeared agitated or disturbed when the police detained him for traffic violations. After being released by the police, Hernandez took Menjivar and Etwi back to Menlo Avenue in Los Angeles. Hernandez thanked Menjivar and let Menjivar keep his gun. Before these events, Hernandez informed Beltran that he knew someone who could kill easily.
This evidence is not sufficient to demonstrate either the objective or subjective component of attempted voluntary manslaughter. As to the objective prong, no reasonable jury could conclude that the shooting was caused by provocation. Hernandez relies on the argument between him and Ramirez at Beltran’s home as the provocation. But that argument occurred after Hernandez had calmly retrieved his gun, picked up Menjivar, had discussions with him and taken him to Beltran’s home, where Hernandez expected to find Ramirez. And no evidence shows sufficient provocation based on any contact between Hernandez and Ramirez before Hernandez retrieved his gun such that it would cause a reasonable person to act without due deliberation or reflection. (People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [insufficient evidence of provocation despite victim’s calling defendant names and taunting him to use a weapon]; People v. Lujan (2001) 92 Cal.App.4th 1389, 1414 [insufficient provocation for defendant to kill estranged wife and her new boyfriend when neither victim “engaged in provocative conduct so as to warrant heat of passion voluntary manslaughter instructions”]; People v. Hyde (1985) 166 Cal.App.3d 463, 473 [insufficient provocation based on defendant’s extreme jealously and preoccupation with victim, his former girlfriend’s new boyfriend, because it “is important... to distinguish between jealousy as a motive for the killing and jealousy sufficient to invoke the ‘heat of passion’ concept”].) On the contrary, Hernandez told the police in his interview that he wanted to intimidate Ramirez and did not want Menjivar to shoot Ramirez. And Hernandez argued to the jury in defense, not that Ramirez had provoked him, but that he did not know that Menjivar was going to shoot Ramirez.
As to the subjective prong, the evidence also does not show that Hernandez subjectively was operating under a heat of passion. He was calm when retrieving his gun, found Menjivar, drove to Beltran’s home and drank with Menjivar and Etwi before Ramirez’s arrival and then engaged in an argument with Ramirez, moving it out to the street, while Menjivar retrieved the gun from the car. Hernandez moved away toward his car, as Menjivar approached Hernandez and Ramirez in the street. Nothing about the encounter between Hernandez and the police during the traffic stop after the shooting indicates that Hernandez was agitated or disturbed, and Hernandez then drove Menjivar and Etwi back to Menlo Avenue in Los Angeles, thanked Menjivar for his work and gave him the gun. The jury, indeed, found Hernandez’s conduct was willful, deliberate and premeditated. And any type of revenge Hernandez sought on Ramirez for attempting to win back Beltran’s affections could not constitute the passion necessary to negate an intent to kill. (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1704; People v. Burnett, supra, 12 Cal.App.4th at p. 478.) Under these circumstances, the trial court had no sua sponte duty to instruct on attempted voluntary manslaughter.
2. The Trial Court Did Not Err in Responding to the Jury’s Question During Deliberations
Because, according to the evidence, Menjivar shot Ramirez, the People proceeded against Hernandez on the theory that he aided and abetted the attempted murder. In that regard, the trial court instructed the jury under CALCRIM No. 400 that “[a] person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” The court further instructed the jury under CALCRIM No. 401 that “[t]o prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.”
On the morning of the second day of deliberations, the jury submitted the following question to the trial court: “We would like the judge to clarify the definitions on the criteria on the law on Attempted Murder based on Aiding and Abetting. Specifically, we would like clarification on criteria (2) and (3) with regards to the issue of intent.” Without objection, the court responded by informing the jurors that “[y]ou have been given all of the applicable jury instructions. With regard to aiding and abetting, please review 400 & 401.”
Hernandez contends that the trial court erred in responding to the jury because, instead of simply referring the jury to CALCRIM Nos. 400 and 401, the court should have instructed “the jury that a person is not ‘equally guilty’ of the charged crime... if he ha[s] a less culpable state of mind.” According to Hernandez, because “there was substantial evidence that [his] intent was not the same as [Menjivar’s] and... his mens rea was less culpable, ” the court should have informed the jury that he “could not be convicted of the greater crime where, although he may be complicit in the offense, his mens rea was less culpable than that of the perpetrator.” We disagree.
“An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) A trial court has discretion to respond to a question asked by the jury during deliberations by referring the jury to the standard instructions that relate to the question without providing elaboration. (People v. Guilmette (1991) 1 Cal.App.4th 1534, 1542; see, e.g., People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331 [trial court fulfilled its duty to respond to jury’s question regarding the definition of “cohabitation” for purposes of charge of committing corporal injury on a cohabitant when it “directed the jury to the definition of cohabitation previously given” and “advis[ed] the jury to reread the cohabitation instruction, which was full and complete for purposes of the facts before it”].)
The trial court did not abuse its discretion when it responded to the jury’s question regarding intent by referring the jurors to CALCRIM Nos. 400 and 401. As discussed, the evidence does not show that Hernandez had a less culpable state of mind than Menjivar. Rather, according to the evidence, Hernandez retrieved a gun and picked up Menjivar from a different part of the city, returned to Beltran’s home where he expected to find Ramirez, while arguing with Ramirez moved out of the way toward his car as Menijvar approached, thanked Menjivar after Menjivar had shot Ramirez and allowed Menjivar to keep the gun in return. No basis thus existed, as Hernandez argues, for amplification on the intent necessary for aiding and abetting an attempted murder as might be required in a case where the facts support that the defendant could be found guilty of a lesser offense than the perpetrator. CALCRIM No. 401 informed the jury that the People were required to prove, among other things, that “[t]he defendant knew that the perpetrator intended to commit the crime” and that, “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime.” It further explained that “[s]omeone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and... specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” This instruction correctly relayed to the jury the requisite intent necessary for it to find that Hernandez aided and abetted Menjivar in the attempted murder of Ramirez. (People v. Beeman (1984) 35 Cal.3d 547, 561 [“a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime”].)
3. The Trial Court’s Decision to Preclude Hernandez from Showing that Neither Menjivar Nor Etwi Had a Previous Murder Conviction Is Not Grounds for Reversal
During trial, the People elicited testimony from Beltran that, while being interviewed by the police, she spontaneously reported two or three times that Hernandez had told her that he knew a friend who could easily kill someone. One of the police detectives confirmed Beltran’s statements. In response to this testimony, Hernandez sought to demonstrate that neither Menjivar nor Etwi had been arrested for murder or “anything of that nature.” The People argued against such a showing, contending that “you can kill people without being arrested for it.... [And] [t]hese are individuals that come from another country and we don’t know if they have arrests in those countries for that. So it’s irrelevant with respect to whether they’ve ever been arrested for those particular crimes.” The trial court declined to permit the showing on the ground that it was irrelevant and collateral.
On appeal, Hernandez does not contest the admission of Beltran’s statements to the police. Rather, he contends that the trial court committed prejudicial error by excluding evidence that neither Menjivar nor Etwi had been convicted of murder or a similar crime. Again, we disagree.
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) Although generally “all relevant evidence is admissible, ” “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Id. at §§ 351, 352.) The “typical exercise of discretion” under Evidence Code section 352 involves the exclusion of evidence that is “repetitious of other evidence previously introduced, involves collateral matters of questionable relevance, or would require a great amount of time. [Citation.]” (People v. Cegers (1992) 7 Cal.App.4th 988, 1001.) The appellate court “review[s] for abuse of discretion a trial court’s ruling[s] on relevance and the exclusion of evidence under Evidence Code section 352. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 578.)
The trial court did not abuse its discretion in declining to permit Hernandez to attempt to demonstrate that neither Menjivar nor Etwi had been convicted of murder or a similar crime in response to the testimony that Hernandez had told Beltran that he knew someone who could kill easily. Whether Menjivar or Etwi previously had been convicted of murder or a similar crime was not relevant to Hernandez’s belief, as he had expressed to Beltran, that he knew someone who could kill easily. The lack of a conviction for murder or a similar crime attributed to Menjivar and Etwi does not discredit Hernandez’s statements to Beltran that he knew someone who could kill easily. Moreover, even if the inference is that Hernandez was referring to Menjivar, the fact that Menjivar had not been convicted of murder or a similar crime does not demonstrate that Menjivar was not someone who could kill easily. Further, because both Menjivar and Etwi were from out of the country, the fact that they do not have a conviction for murder or a similar crime in the United States does not prove that they have not committed murder or a like crime, and Hernandez did not present any offer of proof demonstrating that he could prove the lack of any conviction. On these bases, the court properly refused the proposed line of inquiry as irrelevant and collateral. (People v. Diamond (1970) 10 Cal.App.3d 798, 801 [no abuse of discretion in excluding evidence to prove informer previously entrapped defendant in another case when “offered evidence was remote in nature; involved the investigation and determination of collateral issues; and was of comparatively inconsequential weight”].)
In addition, the trial court’s evidentiary ruling did not prejudice Hernandez, whether harmless error is judged under the state standard for erroneous evidentiary rulings (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Watson (1956) 46 Cal.2d 818, 836), which we believe applies here, or the elevated standard that would govern if a ruling had completely prevented the defendant from establishing a defense (Crane v. Kentucky (1986) 476 U.S. 683, 691; Chapman v. California (1967) 386 U.S. 18, 24), as Hernandez suggests. Given the evidence that Hernandez retrieved his gun, sought out Menjivar, took Menjivar to Beltran’s residence where he expected to see Ramirez, moved away toward his car as Menjivar approached with the gun and thanked and gave Menjivar his gun after the shooting, any error in excluding evidence that neither Menjivar nor Etwi had been convicted of murder or a similar crime did not prejudice Hernandez’s case.
4. The Trial Court Did Not Err in Denying Hernandez’s New Trial Motion
After trial, Hernandez moved for a new trial on the ground of juror misconduct, contending that during deliberations the jury improperly discussed his failure to testify and considered it in arriving at a verdict in his case. Hernandez based his contention on a declaration submitted by Juror No. 12, stating that “[d]uring the deliberation... the defendant not testifying was brought up as an issue by several jurors including this juror. [¶] The matter was discussed and considered as one of the deciding factors in arriving at the verdict.” In opposition to the motion, the People argued that no misconduct had occurred and thus that Hernandez’s motion should be denied. In support of their opposition, the People presented a taped interview of Juror No. 12 and represented that he had said that “at the beginning of the deliberations... one or more jurors mentioned that the defendant did not testify, ” but the comment was “as important as a juror commenting on smoked salmon.” The People also represented that Juror No. 12 had stated that, although he signed the declaration submitted by Hernandez, “he did not take the time to read it.” Juror No. 12 explained “the statements in that document are mischaracterized and sometimes outright false.... [¶]... [¶] [Juror No. 12] denies the information in the affidavit.” The People also presented a taped interview of Juror No. 9 and represented that she had described the remark about Hernandez’s not testifying at trial as a “passing comment” at the beginning of deliberations. And Juror No. 6 sent a letter to the court, explaining that Hernandez’s not testifying at trial was not discussed during deliberations.
The trial court held an evidentiary hearing to ask the jurors “whether during deliberations they recall if any member of the jury ever discussed or brought up the issue of the defendant not testifying during trial. If any of the jurors answer yes, I will then follow up with some questions as to when this occurred, how long the conversation lasted, how many people took part in the conversation, what was said, anything else they remember. And then I will ask them if anything they said or heard during the deliberations affected their ability to be fair and impartial.”
During the hearing, all 12 jurors submitted sworn testimony, 10 in person and two by telephone. Of the 10 who testified in person, six said the subject of Hernandez’s not testifying at trial was not discussed, and two said they did not recall it being discussed. Juror No. 9 confirmed the statements from her interview that the subject of Hernandez’s not testifying at trial was “mentioned in passing, but never discussed, ” “[v]ery early” “when [they] first went in” to deliberations. Juror No. 12, who had submitted the declaration accompanying Hernandez’s new trial motion and then was interviewed by the People, stated that, “at the very beginning of deliberations before we had our foreman[, ]... we were discussing our prior experience in courtrooms in order to gain or attempt to elect a foreman. And [Hernandez’s not testifying during trial] was just briefly touched upon, along with the charges, ... [b]ecause we were looking at that time for the most experienced person to lead the jury.” Juror No. 12 said no further comment was made during the remainder of deliberations. He also explained that he had told the defense investigator “something about defendants not testifying was touched on briefly as—well, reference to our experience in prior court cases and things.” He stated that the issue was never discussed after one of the jurors volunteered to lead the jury and was picked as the foreman, a process that lasted “about five minutes.” The two jurors who appeared by telephone stated that they did not recall the issue of Hernandez’s not testifying coming up during deliberations. All 12 jurors testified that they did not see or hear anything during deliberations that affected their ability to be fair and impartial.
Based on the testimony from the jurors, the trial court denied Hernandez’s new trial motion, concluding that “[w]e have heard from all 12 jurors. The standard for this court to consider is whether there would have been a substantial likelihood of a different verdict. It that information ha[s] been introduced, the court considers the nature and seriousness of the misconduct, the nature of the extraneous information, the strength of the evidence establishing the misconduct, the extent to which the jury may have discussed and considered the information.... [B]ased upon the court’s interviews of the jurors, this court believes there’s no substantial likelihood of a different verdict. In looking at the nature and seriousness of the misconduct, the court actually finds that there does not appear to have been any misconduct. The only question was from the juror who gave the affidavit. I questioned him about the affidavit. [The prosecutor] questioned him at length in the interview, and it does not appear that there was any jury misconduct in any way. At most, something may have been discussed prior to the foreperson being chosen about who had experience in trials.... The court looks to the extent to which the jury discussed and considered the information. I would agree with [the prosecutor’s] characterization of this as a passing comment, if indeed it was made. The one juror who did sign the declaration stated here that there was something that may have been said before the foreperson was chosen and it does appear to be in passing. Furthermore, this court instructed the jury concerning the information at issue in this case.... This court finds that any juror misconduct, if there was any that may have occurred, was nonprejudicial. The jury properly considered the evidence before them and reached a verdict.”
Hernandez contends that the jury committed prejudicial misconduct by discussing his failure to testify and that the trial court erred in denying his new trial motion. We disagree.
A trial court may grant a defendant a new trial upon his application when, among other instances, the jury has “been guilty of any misconduct by which a fair and due consideration of the case has been prevented[.]” (§ 1181, par. 3.) When a defendant moves for a new trial on the ground of juror misconduct, the trial court first determines whether the evidence presented is admissible under Evidence Code section 1150, subdivision (a), and then, based on any admissible evidence, considers whether misconduct occurred. (People v. Duran (1996) 50 Cal.App.4th 103, 112.) “The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing.” (People v. Avila, supra, 38 Cal.4th at p. 604.)
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 process by which it was determined.”
Even if misconduct occurred, it is not necessarily cause for reversal. Misconduct raises a rebuttable presumption of prejudice; nevertheless, a reviewing court will set aside a verdict only upon a substantial likelihood of juror bias. (People v. Bennett (2009) 45 Cal.4th 577, 626.) Such bias is present when “the misconduct is inherently and substantially likely to have influenced the jury. Alternatively, even if the misconduct is not inherently prejudicial, [the reviewing court] will nonetheless find such bias if, after a review of the totality of the circumstances, a substantial likelihood of bias arose. [Citation.] While the existence of prejudice is a mixed question of law and fact subject to... independent determination, [the reviewing court] accept[s] a trial court’s credibility determinations and factual findings when they are supported by substantial evidence. [Citation.]” (Id. at pp. 626-627.) “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 296.)
No basis exists to set aside the verdict here. The trial court conducted an evidentiary hearing at which it heard from all 12 jurors. Based on the jurors’ testimony, any comment that was made regarding Hernandez’s not testifying at trial was in passing, at the outset of the jurors’ discussion in selecting a foreperson and related to their prior jury experience. If such passing comment could be considered misconduct, it was inadvertent and inconsequential. Moreover, all jurors testified that they did not see or hear anything during deliberations that affected their ability to be fair and impartial. And the trial court concluded that the jury properly had considered the evidence before them in reaching a verdict. Under these circumstances, no substantial likelihood exists that one or more jurors were actually biased against Hernandez, and the denial of Hernandez’s new trial motion was proper.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.