Opinion
A143347
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. TION ALONZO GRIMMETT HILL, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR210051)
A jury found Tion Alonzo Grimett Hill, Sr., guilty of second degree murder and attempted arson, and found "true" a firearm enhancement allegation. Hill appeals from the judgement of conviction, arguing the trial court erred in (1) overruling his objection to the prosecutor's peremptory challenge of an African-American juror; (2) denying his new trial motion based on purported juror misconduct; (3) refusing to instruct the jury on voluntary intoxication; and (4) instructing the jury to continue deliberating after they announced a deadlock. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2011, the Solano County District Attorney filed an amended information charging Hill with the murder (Pen. Code, § 187, subd. (a)) of Cacee Savella and charging Hill and Virshon Ruff with attempted arson (§§ 451, subd. (d), 664). The information further alleged firearm enhancements (former §§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d)) and that Hill had a prior serious felony "strike" conviction. A. Prosecution Case
Undesignated statutory references are to the Penal Code.
Ruff was also charged with being an accessory after the fact (§ 32). The charges against Ruff were eventually severed from Hill's and dismissed on the People's motion.
On January 22, 2011, at around 4:30 a.m., A.L. was watching television at her Vallejo home on Dublin Drive when she heard three loud "booms," followed by the sound of glass shattering. The sounds were possibly gunshots, but A.L. was not certain. She looked out her front window and saw two African-American men, later identified as Hill and Ruff, moving around a parked white car. Ruff's hair was in dreadlocks; Hill had short hair. A.L. also saw three bright "flashes of light," which appeared to be sparks, while the two men stood at the rear passenger side of the car. A.L. called 911. Ruff walked away and appeared to stuff something, possibly a gun, into his waistband. Ruff stopped and waited for Hill to catch up. The two men appeared to make an exchange and resumed walking.
1. Police Investigation
Around 5:00 a.m. on January 22, 2011, Vallejo Police Department officers responded to the emergency call and saw two men walking away from Dublin Drive at the intersection of Donegal. Although ordered to stop, the two men ran and fled over a fence into the rear yard at 407 Donegal. Hill was observed dropping a white T-shirt as he went over the fence. A white, bloody T-shirt, a green lighter, and a charred pamphlet about sexually transmitted diseases were later found at 407 Donegal.
After an extensive search, which did not yield a firearm or Hill, Ruff was found hiding in bushes on Corcoran Avenue and taken into custody. Ruff had a cell phone battery and his identification card in his pocket. A cell phone and a black purse were found nearby. The purse contained Savella's driver's license, a birthday card signed "King Tito," several hundred dollars in cash, a glass smoking pipe, and a one-by-one- inch plastic bag that appeared to contain methamphetamine residue. Gunshot residue was found on Ruff's left hand, but not his right.
The People called Ruff as a witness, but Ruff invoked his privilege against self-incrimination. After a grant of immunity and an order to testify, Ruff nonetheless invoked the privilege before the jury, refused to answer any questions, and was held in custody for contempt.
Officer Jeremy Huff located a white Ford Tempo, which belonged to Hill's girlfriend, Jennifer Apperson. Savella's body was found resting on the reclined, front passenger seat, under a jacket. She had suffered a single, "close-range" gunshot wound to the left side of her head, just below her left ear. The wound was surrounded by a half inch circle of soot. Because both soot and stippling were found around the wound, the prosecution's expert opined the gun was fired within six inches of Savella's head. The trajectory of the bullet was essentially left to right, front to back, and slightly upward. No casings were found in or around the car.
Apperson loaned Hill her car a few days before January 22, 2012, and never saw the car again. On cross-examination, Apperson said she discovered, in 2010, that she had gonorrhea and had transmitted it to Hill.
Huff noticed smoke coming from the back of the car, and he snuffed out smoldering paper and dry vegetation that was stuffed in the gas intake. The prosecution's arson investigation expert testified that had the burning material ignited the petrol fumes, and no other intervention occurred, the resulting fire would have consumed the entire vehicle and its contents.
Savella was likely shot in the Ford Tempo. Gunshot residue was found on its rear and front, passenger-side ceiling, but not on the front, driver's side ceiling. Blood spatter, a red cigarette lighter, a silver hoop earring, and an HIV awareness pamphlet were also found in the car. DNA matching Savella's profile was found on both the red and green lighters, in blood on the car's steering wheel, and in the blood on the T-shirt. Gunshot residue was found on the front surface of the T-shirt. A mixed sample "wearer" profile from the inside of the T-shirt matched both Savella's and Hill's DNA profiles, but not Ruff's. Latent fingerprints taken from the Ford Tempo's interior, front passenger window, matched Hill's.
2. Savella's Whereabouts on January 21and 22
Jonathan Tapia, a platonic friend of Savella's, met Savella at the Deluxe Inn in Vallejo around 11:30 p.m. on Friday, January 21, 2011. When Tapia arrived, Savella was in the parking lot with the father of her child, T.C. Around midnight, T.C. and another man dropped Tapia and Savella off at Tapia's house in Vallejo. After a grant of immunity, Tapia admitted he and Savella smoked methamphetamine.
Tapia also admitted on cross-examination he had a criminal case pending for charges of receiving stolen property.
During the time Savella was at Tapia's home, Tapia overheard several angry phone calls, which involved shouting between Savella and a man. Tapia testified: "I guess [the man on the phone] was drunk already" because Savella offered to take a cab to him. Sometime around 2:00 a.m., Hill arrived at Tapia's home. Hill was not friendly and, between 2:30 and 3:30 a.m., he led Savella, whose head was hanging low, out the door. "[H]e just was like on her . . . kind of like pushing her out the door, but not pushing her physically with his hands, but you could feel that . . . the way she got up and she was going was . . . that's what he wanted." Tapia saw them leave in a white car driven by a man with dreadlocks.
At 4:30 a.m., Tapia received a call from Savella's phone. Hill yelled, "Are you fucking my bitch?" Tapia replied that he was gay. Hill sounded "real angry" and Tapia could hear Savella breathing in the background.
Savella's phone records corroborate calls made from her phone to Tapia's cell phone between 4:08 and 4:30 a.m.
3. Phone Records
Police found Savella's cell phone between the Tempo's front seats. The phone had a saved contact number linked to subscriber "Tito LaFlair," a nickname used by Hill. Savella's phone records showed several text messages and calls between her and Hill prior to the shooting.
Savella's phone sent and received texts from other parties that night, including Tapia and T.C. At 1:32 a.m. on January 22, Savella texted an unidentified person: "You betta hold on, 'cause some shit just happened here and there is hella rollers in front still."
On January 21, 2011, at 6:51 p.m., Savella texted Hill: "Damn, baby. I can't wait to get there. Don't think I ever missed yo punk ass this much." Hill responded, "Is that right?" The next text she sent, at 6:59 p.m., said: "Yea, Nigga. I meant what I said. Don't give all—don't get all and shit. I just ain't never let my pride get in the way when it came to yo ass." Hill responded: "Is that right?" At 7:09 p.m., Savella texted, "Fuck you, Tito." Hill responded at 7:10 p.m., "Why you say that, baby?" Savella texted back, "Nuttin."
At 10:14 p.m., Savella texted Hill: "Did you want some powder? 'Cause my Nigga up the street gonna grab some shit from me, and he said he would jug me." Hill did not respond, but Savella continued to text. At 12:40 a.m., on January 22, 2011, she sent: "I might need that otha phone. My phone butta die." One minute later, she texts, "Neva, baby daddi. Ima see you in a sec—secs." At 12:54 a.m., Savella texted Hill: "Baby, you betta let me know what's really bothering when I get back. I know summin is—daddy, I can see it in yo face. Talk to me." Savella again texted Hill, at 1:13 a.m., "Why can't you call me back? Know you seen my call. Actin like you can't talk no more. Same time ery fuckin night. Shit a game to you. And I'm tired of trya deal with you."
On January 22, 2011, at 2:41 a.m., Savella texted Hill: "Baby, what the hell? Thas why I ain't finna to let you drive. I'm on my fuckin way to you, daddy." At 2:55 a.m., Savella texted Hill, "Baby, get yo head straight and get to me, damn it." In her final text, sent at 3:23 a.m. on January 22, Savella warned Hill: "Do not get at me like tonight, please, and if you do slap the shit out of me, nigga, that's me choosin' to walk out yo life." Twelve short calls were also made between Savella's and Hill's phones during a one-hour period around 3:00 a.m. Hill's phone was turned off shortly after 6:20 a.m. on January 22, 2011.
4. Search of Ruff's Home
Ruff, F.S., and their two young children lived on Corcoran Avenue, approximately one mile from where Savella's body was found. During a search of their home, a partially burned business card was found in the entryway. In the kitchen, police found a black pouch containing five .357 caliber bullets, a beige makeshift ammunition container, and some cocaine hydrochloride near indicia for Ruff. DNA found on the black pouch was a mixture from at least four contributors. Savella's DNA profile matched that of a substantial contributor to the mixture. Hill and Ruff were excluded as contributors. Latent fingerprints matching Hill's left index finger were also recovered from the box and lid of the beige bullet container.
F.S. testified, after a grant of immunity, that Hill was a friend of Ruff's and frequently stayed at their home. Hill occasionally also brought his daughter, whom F.S. would babysit. F.S. did not know who owned the bullets found in her home. Although F.S. initially testified she was unaware these bullets were in her home, she later admitted, after receiving an amended immunity agreement, having seen the beige bullet container on the kitchen counter a week or two before the homicide. She asked Ruff to get rid of it and did not see the container again. F.S. also testified that Hill had a firearm in her home approximately two weeks before the homicide. Years before, she had seen Ruff with a gun.
5. Hill's Flight and Arrest
On January 21, 2011, Hill and his daughter were staying at F.S.'s home. F.S. went to work that morning and returned home around 12:30 a.m., where she found Hill, Ruff, and Savella. F.S. went to bed, but Hill woke her in the early morning hours of January 22. Hill looked panicked, asked where was Ruff, and told F.S., "they went to go pick up some marijuana and [Savella's] husband shot at the car" and shot Savella. Hill did not say he accidently shot Savella or that the gun "just went off." She did not recall seeing any blood or a gun on Hill. A friend gave F.S., Hill, and Hill's daughter a ride to Fairfield.
In the early morning hours of January 22, 2011, Hill also called N.H., the mother of his young daughter. Although Hill had been expected to keep their daughter for a few days, he told N.H. she needed to get the child. Hill sounded "like it was . . . urgent." N.H. met Hill in Fairfield.
In the days after the shooting, Detective Fabio Rodriguez informed Hill's family that the police wanted to speak with him. On January 27, 2011, Hill called Rodriguez three times. During the first recorded call, at about 9:30 a.m., Hill mentioned his plan to turn himself in, that Friday, after he found a lawyer. Hill concluded the conversation by saying, "[I]t was [an] accident . . . . I'm going to deal with it." Half an hour later, Hill made a second call, in which Hill said, "[Ruff] wasn't even there. [¶] . . . [¶] He wasn't there but I picked him [up,] panicking man. [¶] . . . [¶] [H]e wasn't there at the scene so he didn't have nuttin to do with nuttin." In the third recorded call at 10:15 a.m., Hill again said he would turn himself in. Hill said, "I'm trying to . . . get situated first man. It just . . . like I'm back to jail a long time." Hill did not turn himself in. Instead, Hill's phone calls were tracked to a location, in West Sacramento, where Hill was arrested on February 10, 2011.
After waiving his Miranda rights, Hill told police "[Ruff] wasn't even there. [¶] . . . [¶] . . . I was there and I'm telling you he ain't do nothing. [¶] . . . [¶] . . . I panicked, I was scared . . . . [¶] . . . [¶] I asked him to help me decide what to do blood. That was it. [¶] . . . [¶] After I pick him up, I drove down the street from the house to find something that looked secluded, that was close enough to walk back though, you feel me? I was gone call after we got away, you feel me? But, he ain't even wanna be there, you feel me? . . . I'm like man I just gotta wipe my prints off, blood. [Because] I got a strike . . . ." While Hill was in the booking area, he asked Investigator Mathew Mustard if he was being recorded. When Mustard said, "no," Hill said, "That girl did not shoot herself. No one else shot her. The gun went off." Hill also said he had no reason to kill Savella and he needed to look out for himself, Ruff, and their families. Hill asked what kind of "deal" he could get.
Miranda v. Arizona (1966) 384 U.S. 436.
The prosecution also played a series of phone conversations Hill had with his uncle, Willie Billops, while in jail. During one recorded call, Hill told Billops: "I'm shooting for an involuntary." Hill responded affirmatively when Billops said, "I know it was an accident." Hill also said the only reason he talked to the police was "because he wanted to cut [Ruff] loose" so "they won't be trying to pressure him." During another call, Billops asked Hill, "You got any way to . . . get a message to . . . like, you know, . . . I could set you free . . . or you can ride this . . . train with me[?]" Hill responded, "[y]eah." Hill also said: "[Ruff] trying to tell them that . . . he didn't even know she . . . was dead until we stopped . . . . I'm like, . . . I told you what was going on before you even got in the car."
6. Motive Evidence
Two days before the shooting, on January 19, 2011, Hill had been examined and treated for symptoms of a sexually transmitted disease. On January 21, 2011, Hill was notified he had contracted gonorrhea and chlamydia.
On November 18, 2008, N.H. reported to police that Hill punched her and threatened to kill her after she told him she wanted to leave him. The police officer who took the report observed N.H. had a "bloody lip," scratches on her hands, and appeared "scared." At trial, N.H. claimed her report had been fabricated because she was bipolar and had been mad at Hill. She did not press charges. B. Defense Case
In his defense, Hill submitted a stipulation that, on January 22, 2011, F.S. told Ruff's mother: "[A]fter the police had chased [Ruff] and [Hill], [Hill] came to the apartment [on] Corcoran, in the early morning. [Hill] was panicked and told [F.S.] that the three of them—[Ruff, Savella, and Hill]—had been trying to buy drugs . . . when, quote, 'It all went bad.' [Hill] said somebody had shot [Savella] during the deal, and that she slumped into his lap while they were in the car."
Hill also called a Vallejo Police Department officer who testified about a stolen car parked in Tapia's driveway. When asked about the car, Tapia initially denied knowing anything about it, but later admitted it contained his belongings. Tapia also admitted using methamphetamine that day and almost every day for the past two years. C. Instructions and Closing Argument
The trial court instructed the jury on Hill's constitutional right not to testify and that no negative inference could be drawn from Hill's exercise of the right. The jury also received instructions, among others, on first and second degree murder, accidental homicide, voluntary manslaughter, and involuntary manslaughter.
Specifically, the jury was instructed: "A defendant has an absolute, constitutional right not to testify. [He] may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact in your deliberations or let it influence your decision in any way."
During closing argument, the prosecutor maintained Hill was guilty of either first or second degree murder. The People relied on both express and implied malice theories, arguing that Hill's firing of the gun at Savella's head, at close range, as well as his apparent conflict with Savella and his behavior and admissions after the homicide, showed intent to kill. At the very least, Hill's intentional act of holding a loaded gun to Savella's head, at close range, evidenced conscious disregard for human life. Defense counsel contended the prosecution had presented insufficient proof of what happened at the time of the shooting to convict Hill of any homicide crime. D. Verdict and Sentence
The jury found Hill guilty of attempted arson and second degree murder. They also found "true" the enhancement allegation that he personally and intentionally discharged a firearm causing death. Hill waived jury trial on the prior conviction allegations, which the trial court found true.
Hill filed a motion for new trial, which was denied after an evidentiary hearing. Hill was sentenced to a total term of 68 years to life in state prison. A timely notice of appeal followed.
II. DISCUSSION
Hill argues the trial court erred in (1) rejecting his objection to the prosecutor's peremptory challenge of an African-American juror; (2) denying his new trial motion based on purported juror misconduct; (3) refusing to instruct the jury on voluntary intoxication; and (4) instructing the jury to continue deliberating, rather than granting a mistrial, after they announced a deadlock. Hill fails to show error. A. Racial Discrimination in Jury Selection
Hill first maintains the trial court erred in rejecting his objection to the prosecutor's peremptory challenge of an African-American prospective juror (E.T.) in violation of Batson v. Kentucky (1986) 476 U.S. 79, 84-89, 95-96 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler). We disagree.
The California and United States Constitutions forbid a prosecutor from excluding prospective jurors from a jury for a racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 84-89, 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) "The now familiar Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the strike must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination." (People v. Scott (2015) 61 Cal.4th 363, 383.)
Where, as here, "(1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling. [Citations.] If the appellate court agrees with the trial court's first-stage ruling, the claim is resolved. If the appellate court disagrees, it can proceed directly to review of the third-stage ruling, aided by a full record of reasons and the trial court's evaluation of their plausibility." (People v. Scott, supra, 61 Cal.4th at p. 391, fn. omitted.)
"When the trial court concludes that a defendant has failed to make a prima facie case, we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination." (People v. Lancaster (2007) 41 Cal.4th 50, 74.) The appellate court applies "a deferential standard of review to the trial court's denial of a defendant's [Batson/Wheeler] motion, considering only whether the ruling is supported by substantial evidence." (People v. Salcido (2008) 44 Cal.4th 93, 136.) "The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the opponent of the strike." (People v. Lenix (2008) 44 Cal.4th 602, 612-613.)
1. Background
In his voir dire questionnaire, E.T. indicated his belief the criminal justice system is "unfair." The questionnaire also asked: "In any criminal case, the Prosecution has the burden of proving that the defendant is guilty beyond a reasonable doubt. Do you think this burden is unfair to the prosecution?" E.T. answered in the affirmative, stating, "evidence can be corrupt." When asked by defense counsel about the latter answer, he said, "I was basically referring to what most of us may hear over the news from time to time." Defense counsel asked, "Were you talking more about physical evidence being corrupted or people being corrupted?" E.T. replied, "Physical evidence."
The prosecutor also had the following colloquy with E.T.:
"[PROSECUTOR]: . . . [This answer] concerns me. On 21, you answered about what your feelings are about the overall fairness and effectiveness of the criminal justice system. And you said 'unfair.'
"[E.T.]: Yes. [¶] . . . [¶] That was a general statement. My views have been skewed by the media . . . we see stuff, and that was a general response.
"[PROSECUTOR]: . . . In your mind, is it—unfair to who?
"[E.T.]: My view is that . . . the system could work a little better, perhaps, either way, both ways . . . it could work better for everyone concerned.
"[PROSECUTOR]: . . . Do you think, given your feelings about that, that ultimately, on a case like this, that you could be fair to the People?
"[E.T.]: Most definitely.
"[PROSECUTOR]: [A]re there . . . some cases that have been talked about [by] the media, where you thought there was some unfairness. And can you expand on what cases you may be talking about?
"[E.T.]: The one that stands out in my mind is the Trayvon [Martin] case.
"[PROSECUTOR]: . . . And can you just let me know what it is that you're frustrated about or that you think is unfair?
"[E.T.]: [A]s the public, we really don't know what went on. And what we've heard is questionable in my mind.
"[PROSECUTOR]: . . . 'Questionable' meaning—are you upset this person was arrested, or
"[E.T.]: Just more so how it's portrayed in the media and the facts being out there. . . . I had some . . . strong thoughts, on that; just why does it work that way, so on and so forth.
"[PROSECUTOR]: . . . Can you express what some of those strong thoughts are? Because if you are having these strong thoughts, then obviously we may need to hash it out just a little bit more.
"[E.T.]: Well, here in California, I would think, in that situation, if someone was accused of a crime . . . they would be questioned or . . . the process of it had me puzzled.
"[PROSECUTOR]: Who do you think the process was unfair to, in that particular case?
"[E.T.]: Without the facts, I can't say definitively. But from what I heard, I'm jaded. . . . I would have questions.
"[PROSECUTOR]: . . . I'm just trying to get to what those questions are specifically.
"[E.T.]: Based on what I've heard in the media, I question why the accused is not—is out on bail, without—that would be my question."
The prosecutor exercised a peremptory challenge to remove E.T. from the jury, and the court denied Hill's Batson/Wheeler motion. Defense counsel acknowledged another African-American, Juror No. 10, remained on the panel, but argued: "This is the second African-American person to be seated. The first was seated one or two seats ago, and . . . we've gone through about 40 people, and, you know, a whole bunch of hardships, and there aren't very many African-Americans in this audience. There are about five more, by my count. And I would object to the People exercising their first peremptory challenge on an African-American. Obviously, no pattern can be shown at this time, but the fact that it's their first one, and . . . he was not warm in the seat."
The court determined Hill failed to present a prima facie case of discrimination, but also invited the prosecutor to state reasons for the challenge. The prosecutor said, "I would just point out that there are two [additional] African-Americans who are sitting on the jury right now . . . [Juror No. 4 and Juror No. 6]. [¶] As far as I can tell, [E.T.] indicated[, on his questionnaire,] the criminal justice system . . . is unfair. On another question, he wrote that evidence can be corrupted. . . . I don't . . . have to believe it when he says that he can be fair. Those mere facts alone would justify any prosecutor electing to peremptory challenge that juror." Defense counsel responded: "Whenever other jurors have given comments like that, the prosecutor has attempted to clean them up and rehabilitate them. In this case, there was no attempt. Once he got one answer, he left it, and then exercised his peremptory on [E.T.] first out of the box."
When a microphone malfunctioned, the court tabled the discussion and, after the jury was sworn, the following record was made out of the presence of the jury:
"THE COURT: [T]here was a Batson/Wheeler challenge by [defense counsel]. [¶] And at one point we cut off. I believe it was where [the prosecutor] asked me to take notice there were other persons of color in the panel. . . . [¶] [Does the prosecutor] wish to supplement that discussion?
"[PROSECUTOR]: Sure. . . . [I]t was, frankly, from my perspective, a ridiculous motion given that there are—by my count—three, now four members of color that are on the jury. [¶] . . . [E.T.] . . . in his questionnaire—indicated that he felt the criminal justice system was unfair. And, . . . 'evidence can be corrupt,' was another [answer] that he gave. And then when I was questioning him further, he talked about some of the unfairness that he described from his perspective, and I think those answers clearly justified any prosecutor not keeping that person on the jury.
"THE COURT: [Defense counsel], did you wish to add anything for the record?
"[DEFENSE COUNSEL]: [¶] . . . [¶] . . . [W]hen [E.T.] was excused, two jurors that counsel says are, quote, of color weren't there then and they're there now; and those are [Juror No. 6] and [Juror No. 4]. [¶] And the issue never is whether there are people, quote, of color [on the jury] . . . because there could be lots of people of color but not a single African-American and yet a Wheeler challenge would be proper. . . . [¶] I would point out, for the record, that [Juror No. 6] and [Juror No. 4] don't appear to me to be African-American. They appear to be darker-pigmented skin. And many of my Portuguese relatives are that way, but I don't think that Portuguese people would be put in the same category as an African-American male in the context of this case in a Wheeler motion. [¶] . . . [¶]
"THE COURT: All right. . . . As to Juror No. 4 . . . and [Juror No. 6] . . . I think reasonable minds could differ as to specifically what . . . ethnicity they are. To the Court it does appear . . . they are African-American. I certainly could be wrong on that. [¶] . . . But that being said, . . . at this point, the analysis as to whether there's a prima facie case, I did not find. . . . Specifically, [E.T.] did note that he felt the justice system was unfair. . . . [I]t was a general statement based on media . . . but he . . . also did say that evidence could be corrupted in his mind. [¶] But based on those factors . . . stated by the [prosecutor], the Court finds that there [are race neutral] reasons for the challenge as to [E.T.], so the Wheeler motion was denied . . . ."
2. Analysis
We agree with the People and trial court that Hill failed to show a prima facie case of discrimination. "A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts ' "gives rise to an inference of discriminatory purpose." ' (Johnson [v. California (2005)] 545 U.S. [162,] 168.) . . . [¶] . . . [Relevant evidence includes] that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (People v. Scott, supra, 61 Cal.4th at p. 384.)
E.T. was African-American, as is Hill, but that alone is insufficient to reasonably suggest discrimination. (People v. Christopher (1991) 1 Cal.App.4th 666, 672-673.) Hill did not demonstrate that Savella was a member of the group to which a majority of remaining jurors belonged. Hill cited no evidence the prosecutor struck most or all of the African-American members from the venire or used a disproportionate number of strikes against African-Americans. Instead, he concedes that, at the time the prosecutor challenged E.T., another African-American juror (Juror No. 10) remained on the panel. In fact, the number of African-American jurors on the panel at the time appears more likely to have been three—Juror Nos. 4, 6, and 10. All three African-American jurors ultimately served on the jury. Although the prosecutor's passing of other jurors is not conclusive, it is a factor indicating good faith. (People v. Cornwell (2005) 37 Cal.4th 50, 69-70, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Turner (1994) 8 Cal.4th 137, 168; People v. Snow (1987) 44 Cal.3d 216, 225.) The prosecutor's peremptory challenge of one of four African-American jurors is not, on its own, suspicious.
Hill appears to dispute the court's finding such jurors "appear [to be] African American." However, Hill points to nothing in the record that would allow us to second guess the court's finding.
Hill suggests the prosecutor failed to engage African-American jurors in more than pro forma voir dire. (See People v. Walker (1998) 64 Cal.App.4th 1062, 1068 ["the fact that a prosecutor engaged in perfunctory questioning of the excused jurors may, when combined with the fact that the prosecutor struck all or most of the members of a group from the venire or used a disproportionate number of peremptories against that group, be used to make a prima facie showing" (italics omitted)].) However, the record does not support his assertion. The prosecutor attempted to fully explore E.T.'s expressed belief that the criminal justice system is unfair. Although E.T.'s responses to the prosecutor's questions could be described as somewhat evasive, our review of the record shows E.T. expressed his belief the criminal justice system is unfair, particularly with respect to its treatment of African-Americans. This is a view not restricted to African-American individuals, not a proxy for race, and a valid reason for any prosecutor to challenge E.T. (See People v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Calvin (2008) 159 Cal.App.4th 1377, 1381, 1386, 1388.)
Hill relies on the fact that E.T., at least at one point during voir dire, indicated he could be fair and impartial. And Hill asserts E.T.'s responses were "markedly pro-prosecution" and show E.T. in fact believed the criminal justice system was biased against the prosecution. E.T. had a cousin in law enforcement and gave some ambivalent responses in his questionnaire. However, far from being favorable to the prosecution, E.T.'s expressed beliefs regarding the fairness of the criminal justice system, the potential for corruption in physical evidence, and his answer that he would automatically disbelieve the testimony of an admitted drug user would undoubtedly give a prosecutor pause in this case, even if E.T. later said he would follow the court's instructions. E.T.'s questionnaire and oral voir dire responses do not support an inference he was excused because of his race. Under our deferential standard of review (see People v. Salcido, supra, 44 Cal.4th at pp. 136-137), the trial court did not err in determining Hill failed to raise a prima facie case of discrimination. B. Motion for New Trial: Juror Misconduct
Curiously, Hill does not explicitly contend the trial court erred in its prima facie case finding. Instead, he jumps to step three and asks us to engage in comparative juror analysis. Comparative juror analysis "is inappropriate in a first stage case . . . , where we do not evaluate the prosecution's stated reasons for the challenges." (People v. Sanchez (2016) 63 Cal.4th 411, 439.)
Hill contends the trial court erred in denying his motion for a new trial based on two purported types of juror misconduct—discussion of Hill's failure to testify, and a juror's profession of firearms expertise and discussion of firearm mechanics outside of the record evidence. (§ 1181, subd. 3.) We begin with a discussion of the applicable law.
A criminal defendant has a fundamental constitutional right to a fair trial by an impartial jury. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In re Hamilton (1999) 20 Cal.4th 273, 293.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member ' "is capable and willing to decide the case solely on the evidence before it." ' " (Hamilton, at p. 294.) "When even one juror lacks impartiality, the defendant has not received a fair trial." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1111 (Cissna).) "Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias." (People v. Nesler (1997) 16 Cal.4th 561, 578.)
" 'When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.' " (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467; People v. Hord (1993) 15 Cal.App.4th 711, 724 (Hord).)
" 'Evidence Code section 1150 authorizes the use of jurors' affidavits to show objective facts which occurred in the jury room and could have improperly influenced the jury.' " (People v. Bryant, supra, 191 Cal.App.4th at p. 1468.) "[E]vidence of a jury discussion on an improper topic [is] admissible as an 'overt act' provided the evidence is not directed to the subjective reasoning processes of the individual juror." (People v. Perez (1992) 4 Cal.App.4th 893, 907, italics added.) Thus, "Evidence Code section 1150 expressly allows jurors to present evidence of statements made within the jury room of such a character as is likely to influence the verdicts improperly." (Hord, supra, 15 Cal.App.4th at p. 725.) "No evidence may be presented concerning the subjective reasoning processes of a juror that can neither be corroborated nor disproved . . . ." (Cissna, supra, 182 Cal.App.4th at p. 1116.)
Evidence Code section 1150, subdivision (a), provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
The limits imposed by Evidence Code section 1150 " ' "prevent[] one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved . . . to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." ' " (People v. Danks (2004) 32 Cal.4th 269, 302.) "Among the overt acts that are admissible and to which jurors are competent to testify are statements. . . . [¶] Although this evidence may be received, it must be admitted with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors—e.g., what the juror making the statement meant and what the juror hearing it understood. They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny. But no such misuse is threatened when . . . the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a juror's reading of a novel during the taking of testimony . . . ." (In re Stankewitz (1985) 40 Cal.3d 391, 398.)
"[W]hen a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations." (People v. Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock).) "The hearing . . . should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (Id. at p. 419.) Evidence received at such a hearing is only admissible if jurors testify to "overt acts"; jurors still may not testify about subjective reasoning processes. (In re Stankewitz, supra, 40 Cal.3d at p. 398.)
Where juror misconduct is shown, prejudice is presumed and the defendant is entitled to a new trial unless the presumption is rebutted by proof no prejudice resulted. (In re Stankewitz, supra, 40 Cal.3d at p. 402.) "We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination." (People v. Nesler, supra, 16 Cal.4th at p. 582; accord, People v. Dykes (2009) 46 Cal.4th 731, 809; People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).) It is "the legal import of the facts accepted by the trial court" that is subject to our de novo evaluation. (Cissna, supra, 182 Cal.App.4th at p. 1118.)
"This presumption aids parties who are barred by [Evidence Code section 1150] from establishing the actual prejudicial effect of the incident under scrutiny [citations] and accommodates the fact that the external circumstances of the incident are often reliable indicators of underlying bias." (In re Hamilton, supra, 20 Cal.4th at p. 295.)
Whether an individual verdict must be overturned for jury misconduct is resolved by an objective standard—the substantial likelihood test. (In re Hamilton, supra, 20 Cal.4th at p. 296.) "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." (Ibid.) " '[T]he "entire record" logically bearing on a circumstantial finding of likely bias includes the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant.' " (People v. Thomas (2012) 53 Cal.4th 771, 819; In re Carpenter (1995) 9 Cal.4th 634, 654.)
Our Supreme Court has repeatedly emphasized that " 'before a unanimous verdict is set aside, the likelihood of bias . . . must be substantial . . . . [T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic.' " (People v. Danks, supra, 32 Cal.4th at p. 304.) However, "the test for determining whether juror misconduct likely resulted in actual bias is 'different from, and indeed less tolerant than,' normal harmless error analysis, for if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict." (In re Carpenter, supra, 9 Cal.4th at p. 654.)
1. Background
On the morning of the second day of deliberations, the trial court questioned the jury foreperson, in a closed hearing, regarding a report of purported juror misconduct. The foreperson told the trial court: "[The jury] had taken a vote, and on the vote everybody's hand was up but [Juror No. 6]. So she looked around. That's when she went ballistic. [¶] She goes, 'None of you know the law of the street. None of you. He's innocent. And he can't say who did it because that's the law of the land. If he says anything, they will kill him. They will kill his family.' [¶] . . . And I turned down to look at Juror Number 7. She was shaking like a leaf. She lifts her head up, looks at me, looks back down, and slowly brings her head back up to me, still shaking like a leaf. [¶] And she goes, 'D-d-d-did any of you think it was an a-a-a-accident?' . . . And I looked at Juror No. 9. . . . [¶] You can see an angry look come across her face. She just opens her mouth to speak, when Juror Number 6 went off again. 'Blacks always get mistreated. Blacks always get the short end of the stick. Blacks always get accused wrongly.' [¶] . . . She is yelling at the top of her lungs. And I'm like, 'I can't believe the bailiff hasn't come in. I can't believe he is not hearing all of this and coming in.' [¶] And the other jurors around her got up, and they come around by me. . . . [¶] Then [Juror No. 6] goes, 'I was just repeating the transcripts. I didn't say nothing wrong. I was just repeating the transcripts.' And then she got quiet and put her head down. Juror Number 12 . . . said something in her defense. [¶] And then . . . he turned to me and says, 'Don't worry about it. We will work on her tomorrow. Just fill out the form requesting such and such from the bailiff.' "
Both counsel and the trial court agreed that no juror misconduct had been described and no further instruction was necessary. However, after the verdicts were reached, Hill moved for a new trial, on the basis of, among other things, additional instances of alleged juror misconduct—specifically, the jurors' discussion of Hill's failure to testify and jurors' firearms expertise. Hill's moving papers indicate declarations from Juror Nos. 5, 6, and 7 were attached in support of the motion. However, the record before us only contains a declaration from Juror No. 7. Juror No. 7 declared: "I would have liked to have heard from [Hill] on whether this was an accident and this subject came up during discussion. The exact number of times that it was discussed by other jurors, I don't know but it came up each day."
Because defense counsel pressed no objection before the trial court, we do not address this issue further. (People v. Dykes, supra, 46 Cal.4th at p. 808, fn. 22; People v. Masotti (2008) 163 Cal.App.4th 504, 508 ["[a] motion for new trial may be granted only upon a ground raised in the motion"]; People v. Williams (1957) 153 Cal.App.2d 21, 25 [grounds for new trial motion "may not be presented for the first time on appeal"].) Nor do we see any support for Hill's current theory that this incident should have any impact on either an exhausted juror misconduct claim or our analysis of the trial court's response to an announced deadlock, addressed post. Hill cites no admissible support for his assertion that Juror Nos. 6 and 7 were the "holdout jurors" when that deadlock was reported. (See Evid. Code, § 1150.)
The People opposed Hill's motion, supporting their opposition with declarations from Juror Nos. 1, 2, 5, and 11. Juror No. 1 declared: "[T]he fact that [Hill] did not testify was brought up briefly one time in our deliberations. [¶] . . . I remember one juror saying something to the effect, 'By the way, he didn't testify.' [¶] That after the comment was made at least one juror stated that we were not allowed to consider Hill's lack of testifying in their deliberations. [¶] At no time did I hear any juror say something to the effect 'he didn't testify so he must be guilty.' "
Declarations of Juror Nos. 5 and 11 were similar. Juror No. 5 stated: "Hill not testifying was brought up in jury deliberations. [¶] [T]he topic of [Hill] not testifying was only brought up briefly. [¶] [T]he issue was only discussed in the general context that we wished he had testified. [¶] At no time did I hear any juror say something to the effect, 'he did not testify so he must be guilty.' [¶] I do not remember if any of the jurors said they were not supposed to consider Hill's lack of testimony in the deliberations. [¶] . . . [¶] Additionally, the gun was discussed during jury deliberations. We discussed semi-auto vs. revolver and trigger pressure." Juror No. 11 declared: "[T]he fact that [Hill] did not testify was brought up in our deliberations. [¶] [T]he topic of [Hill] not testifying was not brought up every day. [¶] I do not remember what was specifically said about [Hill] not testifying but it was something similar to 'We would have liked to have heard him testify.' [¶] At no time did I hear any juror say something to the effect 'he didn't testify so he must be guilty.' [¶] I do not remember if any of the jurors said they were not supposed to consider Hill's lack of testimony in the deliberations. [¶] Additionally, the gun was discussed by all jurors. One of the jurors seemed to have general knowledge of guns. I cannot remember any specific conversations regarding the gun."
However, Juror No. 2 stated: "[T]he fact that [Hill] did not testify was brought up one to two times in our deliberations. [¶] [O]ne of the jurors said something similar to 'he did not testify so he must be guilty.' I am unsure of the exact statement or who said it. [¶] That after that comment was made the group was reminded that we were not allowed to consider in our deliberations whether or not [Hill] testified. [¶] [J]urors were reminded several times that we were not allowed to consider in our deliberations whether or not [Hill] testified."
Hill later filed additional supporting declarations, including declarations from Juror Nos. 4, 10, and 12. Juror No. 4 declared: "I recall the fact that [Hill] did not testify was brought up approximately two (2) or three (3) times. [¶] . . . I recall a few jurors stating that they believed Hill should have testified. [¶] The jury deliberated on why Hill did not testify because it brought up so many 'what ifs.' In addition, the fact that [Ruff] did not testify was discussed [at the same time]. It was stated more than once 'by many jurors' that [Hill] and [Ruff] must be guilty." Juror No. 12 also declared: "[I] don't know how many times this came up but it did come up on a number of occasions that [Hill] did not testify. Hill could have 'filled in some blanks' and I stated this. A few of the jurors stated that 'It would have been nice to know what had happened from Hill.' "
Contrary to Hill's passing assertion, it was not improper for the jury to draw a negative inference from Ruff's refusal to testify. If a witness has the right to invoke the Fifth Amendment privilege against self-incrimination, it is considered improper to require the witness to invoke that privilege in front of the jury because there is too great a risk that jurors will make inferences damaging to the defense. (People v. Mincey (1992) 2 Cal.4th 408, 440-442.) When the court has determined a witness has no privilege to refuse to testify, as was the case with Ruff, it is appropriate to allow the prosecutor to put the witness on the stand, before the jury, to refuse to testify; the jury is entitled to draw a negative inference in this situation. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554; accord, People v. Morgain (2009) 177 Cal.App.4th 454, 466-468.)
Juror No. 10 declared: "I recall that on a number of occasions, the jury would break up into 'small groups' and that this occurred 'every day of deliberations' to discuss among other things, how a gun works. There were a few male jurors that thought they knew a lot about guns. [¶] Also, during the course of deliberations, approximately eight (8) or nine (9) of the twelve (12) jurors at some point, stated that they wanted to hear from [Hill]. I am one (1) of those jurors who would have liked to have heard from [Hill]. If [Hill] had testified, I could have 'read something from the testimony.' "
The trial court determined an evidentiary hearing was necessary to resolve conflicts in the declarations. To that end, on November 7, 2013, Juror Nos. 1, 5, and 6 were examined by the court and counsel. Juror No. 1 initially said Hill's failure to testify did not come up. When confronted with his earlier declaration stating the subject was "brought up briefly one time during our deliberations," Juror No. 1 testified that if anything about a failure to testify had come up, it was extremely brief. He did not hear anyone say Hill must be guilty because he did not testify.
Juror No. 1 testified there was some discussion of how a gun functions and admitted to discussing the issue himself. "There was . . . discussion about trigger pull. There was a discussion about the . . . mechanics of the gun or the . . . pounds of pull that a trigger has and how they're set and those types of things. I think that discussion led into, or was part of, could a gun be discharged accidentally, you know, by having that trigger pull, or could it be—would it have to be discharged on purpose?" About an hour, cumulative, was spent on the gun topic, but only passing comments were made about the jurors' personal experiences. Juror No. 1 acknowledged the foreperson said he knew a lot about guns and discussed the gun's caliber and possible position based on his knowledge, but did not remember him claiming to be an expert.
Juror No. 6 testified the subject of "why" Hill did not testify came up every day during deliberations. "It was day in, day out." Juror No. 6 remembered two different jurors saying, more than once, "He didn't testify. He must be guilty." Juror No. 6 said Juror No. 10 brought it up first and more frequently than others. Juror No. 6 said each time it came up, she and other jurors repeatedly reiterated that the jurors needed to follow the judge's instructions not to consider Hill's failure to testify. After that, the conversation moved on to other topics.
Juror No. 6 also testified: "Our foreman was adamant that he knew what type of gun it was and what type of bullets and how it worked and—and a lot of us don't have that knowledge." Three jurors, including the foreperson, professed personal experience with guns and discussed them. However, the discussion was not lengthy, approximately five minutes, with a total time of about 20 minutes overall. Juror No. 6 remembered the foreperson saying he had training in the area.
Juror No. 5 said Hill's failure to testify came up, "but it was snubbed right away." No statements were made along the lines of "Hill did not testify, so he must be guilty." Juror No. 5 remembered the foreperson (Juror No. 8) claimed he was familiar with different firearms. Noting that a revolver "had to have been" used, they discussed that "to fire [a revolver], you would have to cock the weapon; you would have to pull the hammer back." Juror No. 8 said "there was like 11 pounds of pressure difference between being cocked and being with the hammer all the way down." Juror No. 8's statements were brief and no one claimed expertise.
On November 19, 2013, the trial court and counsel also examined Juror Nos. 2, 3, 7, 8, 9, and 12. Initially, Juror No. 2 said she heard three statements by "maybe two" jurors along the lines of "[Hill] must be guilty because he did not testify." She stated, "Who said it, I don't know." Later in her testimony, however, Juror No. 2 said this particular statement was made only once, or at most twice, and she had a distinct memory of the foreman being "the one person loudly saying . . . he must be guilty because he didn't testify." Juror No. 2 acknowledged that other jurors consistently reminded them that jurors should not be considering Hill's failure to testify and the conversation stopped.
Juror No. 2 also testified that three jurors mentioned personal experience with firearms, and the jury foreman was "definitely" one of them. One of them said, "something about [guns] don't go off by themselves." Juror No. 2 said one of the jurors, probably the foreman, claimed to be "an expert in guns" and "[h]ow to shoot them." Jurors' personal experience with firearms was raised maybe three to five times.
Juror No. 7 said Hill's failure to testify came up in the context of a juror saying it would have been nice "to have heard his side." A juror also said, "[t]he least [defense counsel] could have done was have the defendant . . . testify." A few jurors expressed such sentiment, but not all of them. The topic recurred on "more than five, less than ten" occasions. On some of these occasions, other jurors responded by reiterating the judge's instructions. At least three jurors expressed having personal experience with firearms and explained, "it takes a lot to pull the trigger." Juror No. 7 said she believed the foreperson described himself as an "expert."
Juror No. 3 said jurors expressed they would have "liked" to have heard Hill's testimony. Juror No. 3 admitted the topic may have come up "[f]our or five times," but could not remember. The topic was rebuffed by jurors who reminded, each time, that the jury could not consider Hill's failure to testify. Juror No. 3 did not remember anyone saying Hill must be guilty because he did not testify. Juror No. 3 also testified that two jurors brought up their personal experiences with guns, talking about "how a gun is fired and trigger pressure." Juror No. 3 estimated that about 30 minutes was spent on this discussion. Juror No. 3 did not remember anyone saying they were an expert.
Juror No. 12 testified there were statements on the topic of Hill not testifying. Jurors mentioning this said, "only [Hill] knows what happened. . . . We weren't there. So it would be helpful if he had said something." Juror No. 12 admitted, "I know I said it, like, man, if he would have said something, if he got up, but that's not the case, so you can't really do anything about that." Asked for the specific wording, Juror No. 12 offered: "It would have been nice, being that he was the only one that was there to say, hey, this is what happened. Hey, this is how the gun popped out, or this is why I took out the gun. This is why the gun went off on her head. That would have been nice."
Juror No. 12 did not recall anyone saying "[Hill] must be guilty" because he did not testify, but he did remember another juror said, "If he doesn't have anything to hide, he should have testified." The subject came up a "one to three times"; it was not an extended discussion and was countered by jurors saying they could "only go by the evidence." Juror No. 12 qualified, "I mean, we were disappointed that he didn't." "[T]he gist of it was basically . . . he was there, he should have testified. Why would he bring the gun if he was just going to talk to her[?]" Juror No. 12 could not remember if someone said they could not "dwell" on that topic or someone referred back to the court's instructions on it.
Although Juror No. 12 initially testified he did not remember any such discussion, he later said that the jury's discussion of personal experience with the mechanics of handguns was extensive. He said, "the topic was brought up on what type of force or pressure needed for this type of handgun." Twenty to 30 minutes was spent on how a handgun works; 20 minutes one day, and five the next.
Juror No. 9 agreed that Hill's failure to testify came up, "two or three" times, but no one said that, as a result, "he must be guilty." Someone said, "[Hill]'s the only one that knows." The comments were each immediately countered by reminders that the jury could not consider Hill's failure to testify. According to Juror No. 9, no one claimed to be a gun expert. Nor could she remember any discussion of trigger pull.
Juror No. 8, the jury foreperson, admitted one juror asked why Hill did not testify, but the conversation was "instantly . . . put to a stop" by Juror No. 4. Otherwise, Juror No. 8 did not recall the topic coming up. After Juror No. 4 made the statement, "We can't talk about it," the jury moved on. Juror No. 8 did not hear anyone say Hill must be guilty because he did not testify. He personally made no comment on the subject. Juror No. 8 also admitted telling other jurors, based on his personal experience, that it takes "13 to 15 pounds of pressure to pull a double action revolver" trigger and "three to five pounds of pressure" if the revolver is already cocked. No one claimed to be an "expert," but Juror No. 8 answered questions from another juror involving trigger pull, and explained the distinction between revolvers and semi-automatics, based on his experience as a "sportsman," "hunter," and "target shooter."
Finally, on November 20, 2013, Juror Nos. 4, 10, and 11 were examined by counsel and the trial court. Juror No. 4 said the topic of Hill's failure to testify came up, but he could not remember the particular statements. Juror No. 4 thought jurors were just asking, "why would he not testify?" Asked directly if jurors were drawing the inference "[Hill] must be guilty," Juror No. 4 responded, "I would say so, yes." However, he could not remember "if that's what I just felt I was picking up, or if that's actually what was said." (Italics added.) The question of "why would he not testify" was raised three to six times during deliberations. Juror No. 4 said, "I recall [it] being said because [Hill] did not testify, he must be guilty." Juror No. 4 initially attributed this statement to the foreperson. The topic came up multiple times. Under further questioning, Juror No. 4 suggested he was not sure if this was merely an impression or feeling he took away, rather than an express statement. Other jurors responded: "[Hill does not] have to testify, and we have to deal with the evidence that we've been given, rather than what we assume, that we weren't given." When the court inquired of Juror No. 4 whether jurors believed they could consider Hill's failure to testify, Juror No. 4 responded, "I would say so." Juror No. 4 said, "we could consider that he didn't testify, because there were statements that would be more statements toward if he didn't testify then he must be guilty, and the argument would go back and forth in that regard, because there would be some that would say he's not obligated, and then there would be others that would say, well, why wouldn't he want to."
Juror No. 4 testified that two jurors discussed the mechanics of guns based on their personal knowledge, two to three times. Twenty to 30 minutes was dedicated to a discussion of trigger pull and how it "couldn't be an accident." Juror No. 4 did not recall use of the term "expert," but explained that the person describing gun mechanisms said he knew how they worked.
Juror No. 11 testified: "All they said was they would like to have heard what [Hill] had to say." The topic came up two or three times. The jurors who commented about Hill's failure to testify were countered with "we need to stick with . . . the evidence." Juror No. 11 did not remember anyone saying Hill must be guilty because he did not testify. Juror No. 11 remembered the foreperson talking about his personal experience with guns. Trigger pull was discussed five times throughout deliberations.
Juror No. 10 agreed that jurors expressed their wish Hill had testified because "it would have helped them to make a decision." The sentiment was expressed a few times by a few jurors. Juror No. 10 remembered other jurors said, "we can't consider that" and "we have to . . . go by the evidence." She did not hear any statements that Hill must be guilty because he did not testify. Nor did she make such a statement herself. Juror No. 10 said two jurors explained how guns worked—specifically, that a gun had to be cocked for it to go off. Juror No. 10 explained the context: "[I]t was to make them understand, the ones who thought it might have been something else, accident or whatever. It was to make them understand that it couldn't be an accident." About four jurors claimed "they . . . knew more about [guns] than we did." Juror No. 10 was unclear whether any juror actually used the term "expert."
The trial court denied Hill's motion for new trial. In explaining its decision, the court first made clear that it had not considered, as inadmissible under Evidence Code, section 1150, any testimony "that tends to show the effect of any statements or conduct upon a juror, or statements that concern a juror's mental processes." (Italics added.) The court did not list each inadmissible statement specifically, but stated: "[T]here were some broad areas that do come to mind. . . . [¶] Any statements regarding the possible result or effect on the verdict had the defendant testified, those statements fall within the prohibitions of 1150. [¶] Further thoughts or opinions by any juror as to what another juror may have meant by his or her comments, what they took from the statement or assumed that juror meant, those are barred by 1150. [¶] The effect . . . on any particular juror, of comments made by those jurors experienced with guns. So those are barred by 1150. The actual statements that were made regarding guns is admissible, however, but the effect is not."
The trial court also made the following factual findings: "[T]he statements along the lines of: 'We would have liked it. Had the defendant testified. We wish he would have testified. We wish there was more information,' statements of that nature, . . . the Court finds . . . that these statements came up somewhere in the range of about two to five times, during the deliberations. [¶] The Court notes that this estimate of two to five times is consistent with the testimony of seven jurors. Those jurors are numbers, 1, 3, 5, 8, 9, 11, and 12. [¶] Juror 10 stated that these comments came up a few times, more than once or twice. There was no further number given, as the Court recalls. And so the Court interprets Juror 10's comments as being consistent within this range of two to five times. [¶] The Court does note that Juror No. 7 was the only juror to estimate these statements came up somewhere between five to ten times. On the other hand, the Court notes that several jurors' estimates of this topic appearing below the five times as well. So the Court's finding is two to five times appears to be the most consistent number of times that these sorts of statements came up. [¶] Another finding the Court makes is regarding Juror No. 12 . . . where he testified that every juror was making these statements regarding the defendant not testifying . . . . The Court does not find this testimony credible, in light of the other testimony. This testimony is contradicted by the testimony of Jurors 3, 5, 9 and 11. . . . [¶] Again, the Court is aware that Juror No. 10 did testify, initially, that she did not make those statements, which itself is contradicted by other jurors, as well. But later stated in her testimony that it could have been all jurors, but doesn't remember now. The Court . . . does not find that these statements by Juror No. 10, that it could have been all jurors corroborating, Juror 12's statement appears to be speculative . . . . [¶] . . . [¶] . . . But, in essence, I don't find there was corroboration for this statement that all jurors were discussing the defendant not testifying, as it was contradicted directly by . . . Jurors 3, 5, 9 and 11, and that the Court did not find any further credible corroboration. . . . [¶] . . . [¶] [S]o in light of these factual findings, even if it wasn't made by all 12 jurors . . . , there is misconduct . . . . So the Court does find there's misconduct, and there is [a] presumption now of prejudice, unless that is rebutted by evidence." (Italics added.)
The court also explained: "My findings . . . as to whether jurors made [statements] on this topic: 'The defendant did not testify; therefore, he must be guilty.' . . . It's noted . . . that three jurors reported hearing a comment along this line: Juror No. 2, No. 4, and No. 6. [¶] A fourth juror, Juror No. 12, reported hearing the following statement, which is similar in nature: 'If he has nothing to hide, then he should have testified.' The Court notes that Juror No. 12 was the only one to report hearing [such] a statement and could not identify who it came from. [¶] The Court's analysis of Juror No. 2, her statements on this topic, indicating that the statement did come up . . . . She initially stated this statement came up, roughly, three times, then later clarified, upon questioning, that it was one to two times. Statements along the lines of, 'I wish he would have testified' accounted for the other times within this number of three. [¶] It's noted in her initial [d]eclaration, she stated that one of the jurors said something similar to, 'He did not testify, so he must be guilty,' or she was unsure of the exact statement or who said it, in her [d]eclaration. In her testimony, she recalled that the foreperson was the one who made the comment. [¶] As to Juror No. 4, his testimony suggesting he heard statements that 'He didn't testify; therefore, he must be guilty,' again, the Court does not find to be credible, and I will lay out for you a testimony on this topic that is of concern to the Court. The Court did observe his testimony . . . [¶] . . . and concludes that Juror No. 4 appeared to be attempting to reconstruct or interpret what the others may have meant by their statements. There was no credible evidence that he actually heard someone make these statements along the lines of, 'If he did not testify, he must be guilty.' [¶] . . . [¶] It appears to the Court, based on [Juror No. 4's testimony], that [Juror No. 4] appeared to be reconstructing or interpreting what the others said, not relaying what they actually said."
"Similarly, Juror No. 4 indicated that jurors, during their conversation or deliberations, indicated . . . that they could consider the fact that the defendant did not testify. [The] Court finds that this testimony . . . is similarly not credible. There is no other juror that corroborates this point. This point is contradicted by nine other jurors—nine other jurors who report that jurors consistently gave an admonition that this topic was not proper for discussion, and that there was no extended discussion on this topic. [¶] . . . [¶] Juror No. 12 could not remember any admonishments, but testified there were no extended discussions on this topic. [¶] . . . [¶] Based on this, however, the Court finds that Juror No. 4's testimony on this issue, that the jury indicated that they could consider [Hill] not testifying, where it's contradicted, essentially, in the Court's mind, by all other 11 jurors, is not credible."
The trial court continued: "The Court is aware that Juror No. 6 testified that the 'must be guilty' statement came up no more than five times. The Court notes that Juror No. 6 gave an inconsistent statement in her [d]eclarations. . . . [¶] . . . [¶] Let me also comment, Juror No. 12 did indicate a similar-type statement was made, of, 'If there's nothing to hide, he should have testified.' [¶] The Court notes, as to that testimony . . . when he was initially questioned by the Court, there was no mention of a 'nothing to hide' statement. . . . [H]is answer, at one point, was, 'What we said was only [Hill] . . . knows what happened. He was the only one there. We weren't there. So it would be helpful if [Hill] had [testified] . . . . Unfortunately, he didn't, so we can only go by the evidence.' Basically, that was all that was said. [¶] . . . [¶] In light of what I just described, as to the testimony that was provided by Juror No. 2, No. 4, No. 6, and No. 12 on these topics of 'Defendant must be guilty because he didn't testify' or 'Got nothing to hide; he should have testified,' the Court does not find that there is credible evidence that the statement 'nothing to hide' was made. [¶] . . . The Court notes that none of the other jurors reported hearing this 'nothing to hide' statement, and, again, the statement was not initially raised when questioned. . . . [¶] My ultimate finding on whether the statements of [Hill] not testifying, must be guilty, is similar . . . . I don't find there's credible . . . evidence these statements were made." (Italics added.)
The trial court found the presumption of prejudice was rebutted. The court explained: "There was juror misconduct . . . along the lines of these statements of, 'We wish we would have heard,' or, 'Would have been nice.' . . . And I make that finding, that the presumption of prejudice is rebutted where it appears clear to the Court, from all of the testimony, that there were consistent admonishments that this topic could not be discussed or considered. . . . [¶] Further, this Court's finding that there really is no evidence that that were any extended discussions on this topic. It appears throughout the testimony . . . that the admonitions were raised and, essentially, the conversation stopped."
With respect to juror discussion of guns, the trial court found: "[T]hree jurors did bring up personal experiences with guns, in discussing how guns operate, discussing trigger pressure, pounds of force to pull the trigger. [¶] The Court notes that the weight that any individual juror would give to these statements would appear . . . to constitute inadmissible thought processes under [Evidence Code section] 1150. [¶] The Court also notes that eight jurors do not recall hearing someone state, specifically, they were an expert. Those jurors are 1, 3, 4, 5, 8, 9, 10, and 12. [¶] Jurors No. 2 and 7 do recall that someone described themselves as an expert, and Juror No. 6 . . . testified that the foreman expressed some special skill and training in guns. . . . [¶] . . . [¶] The Court does not find any juror misconduct here. The facts here are very similar to Leonard[, supra,] 40 Cal.4th 1370. Similar to the Leonard case, the Court finds that this is a situation where jurors bring to their deliberations knowledge and beliefs about general matters of law and fact, that . . . find their source in everyday life and experience. [¶] From the testimony in this case, it appears to the Court that the jurors who brought up how guns work, trigger pull . . . did so based on personal experience. There is no evidence that these jurors who knew about guns elaborated or expressed that they took special classes, had special certification or similar-type qualifications beyond personal experience." (Italics added.)
2. Hill's Right Not to Testify
"The Fifth Amendment to the federal Constitution provides that no person 'shall be compelled in any criminal case to be a witness against himself.' . . . Thus, the Fifth Amendment entitles a criminal defendant, upon request, to an instruction that will 'minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.' (Carter v. Kentucky (1981) 450 U.S. 288, 305.)" (Leonard, supra, 40 Cal.4th at pp. 1424-1425.) "[T]he purpose of the rule prohibiting jury discussion of a defendant's failure to testify is to prevent the jury from drawing adverse inferences against the defendant, in violation of the constitutional right not to incriminate oneself." (Id. at p. 1425.) It is undisputed the jurors discussed Hill's failure to testify, in violation of the trial court's instruction, and this constituted misconduct. (People v. Lavender (2014) 60 Cal.4th 679, 687.) The only question before us is whether the presumption of prejudice was rebutted. Hill argues the trial court erred when it found no substantial likelihood of prejudice from the jury's discussion of his failure to testify. We disagree.
As stated previously, our role is to independently assess the "legal import" of the facts found by the trial court. (Cissna, supra, 182 Cal.App.4th at p. 1118, italics omitted.) In doing so, we must accept "the trial court's factual findings and credibility determinations [that] are supported by substantial evidence." (People v. Dykes, supra, 46 Cal.4th at p. 809.) When a trial court denies a motion for new trial, we presume the order is correct. " ' "[A]ll intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown." [Citation.] We must "view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence." ' " (Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 666; accord, People v. Carpenter (1999) 21 Cal.4th 1016, 1045-1046 [order denying motion to suppress]; Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 794.) "We do not seek out inferences that, if true, would cause us to reverse the trial court's order granting the motion for a new trial." (Grobeson, at p. 795.)
Here, the trial court facilitated our review by explicitly stating its factual findings and credibility determinations on the record. Hill ignores the express credibility findings and asks us to reweigh the evidence. He contends: "The presumption of prejudice was not dispelled by argument . . . from opposing jurors that [Hill's failure to testify] could not be used against him. . . . [Such argument does not] appear to have had any effect on the jurors who discussed [Hill's failure to testify] as a point in their favor—in favor of guilt." The People disagree, insisting the trial court's ruling is clear that it found no credible evidence the more damaging statements were made. The People have the better argument.
It is settled law that "[t]ransitory comments of wonderment and curiosity" about a defendant's failure to testify, although technically misconduct, "are normally innocuous, particularly when a comment stands alone without any further discussion." (Hord, supra, 15 Cal.App.4th at pp. 727-728.) "When comments go beyond natural curiosity and their content suggests inferences from forbidden areas, the chance of prejudice increases. For example, if a juror were to say, 'The defendant didn't testify so he is guilty,' or 'we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished,' the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas which are off limits." (Id. at p. 728.) On the other hand, "a reminder to the jury of the court's instructions to disregard a defendant's decision not to testify is, in the absence of objective evidence establishing a basis to question the effectiveness of the reminder . . . , strong evidence that prejudice does not exist." (People v. Lavender, supra, 60 Cal.4th at p. 687.)
In Hord, supra, 15 Cal.App.4th 711, misconduct was found despite a conflict among the jurors regarding whether they discussed the defendant's choice not to testify. (Id. at pp. 721-722, 725.) Specifically, some jurors did not recall any such discussion, another four recalled comments being made, and three of the latter jurors recalled the foreperson immediately advising they could not consider it. (Id. at pp. 721-722.)
After independent review, the Hord court determined the misconduct did not pose a substantial likelihood of prejudice: "Here, during deliberations there was a comment made about [the] defendant's not testifying and a comment regarding [the] defendant's sentence. Although these matters were not to be discussed, the discussion was very different than when a juror performs experiments or brings in new law or facts into deliberations. The jury was obviously well aware here that defendant did not testify and equally aware that he would be punished if the jury found him to be guilty. Thus the comments did not interject any new material into deliberations that was not already known by the jury from the trial itself. . . . The fact that only some of the jurors recalled the comments tends to indicate that this was not a discussion of any length or significance." (Hord, supra, 15 Cal.App.4th at pp. 727-728.) An initial declaration from one juror recited another juror's "oblique remark about a party not saying anything to protect himself." (Id. at p. 728.) "Although this comment may have carried a greater potential for prejudice than a mere statement of curiosity," it did not necessitate reversal because the discussion did not appear to be lengthy or suggest "a movement to disobey the court's instructions." (Ibid.) Most importantly, the jurors were reminded they could not consider the defendant's failure to testify. (Id. at pp. 727-728.)
Leonard, supra, 40 Cal.4th 1370 is also illustrative. In that capital case, the jury committed misconduct by discussing the defendant's failure to testify during its penalty phase deliberations. Specifically, the jurors said they wished the defendant had testified so they could have better understood why he committed the crimes. (Id. at pp. 1424-1425.) Our Supreme Court independently determined the misconduct was not prejudicial, reasoning that the jurors' comments "merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better. . . . '[W]anting to hear defendants testify is natural. We do the best we can to deter jurors from speculating and from drawing negative inferences, but merely referencing that they wish he would have testified is not the same as punishing the [d]efendant for not testifying. It is not the same as drawing negative inferences from the absence of testimony.' " (Ibid.)
Finally, in Loker, supra, 44 Cal.4th 691, juror misconduct again was not prejudicial. In their original declarations, several jurors stated they discussed, during penalty deliberations, the defendant's failure to testify as signifying lack of remorse. (Id. at p. 748.) Amended declarations clarified that, whenever the topic was brought up, the foreperson had reminded the jury they could not consider it and must restrict its deliberations to the evidence and the instructions. (Ibid.) The presumption of prejudice was rebutted "because the discussions were brief, the foreperson admonished the jury, and thereafter the subject was dropped." (Id. at p. 749.) The Loker court reasoned: "Clearly, the [trial] court accepted the version of the discussions presented in the amended declarations. We will not disturb that credibility determination, which is supported by substantial evidence. [Citation.] [¶] . . . It is natural for jurors to wonder about a defendant's absence from the witness stand. [Citation.] . . . Even if some comments disclosed in the amended declarations might have given rise to inferences adverse to defendant, the foreperson promptly forestalled that possibility, reminding the jurors that defendant had a right not to testify and that his assertion of that right could not be held against him." (Ibid., italics added.)
Hill insists juror statements in this case are distinguishable from those made in Hord, Leonard, and Loker because instead of merely expressing regret or curiosity about Hill's decision not to testify, jurors stated "he was guilty" as a result. However, substantial evidence supports the trial court's findings no such statements were made and the misconduct in this case consisted of two to five, brief comments in which the jurors merely expressed their wish Hill had testified because it would have been helpful to have heard his side of the story.
Hill is correct that Juror Nos. 2, 4, 6, and 12 testified to more troubling comments. (See People v. Hord, supra, 15 Cal.App.4th at p. 728 ["if a juror were to say, 'The defendant didn't testify so he is guilty,' or 'we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished,' the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas which are off limits"].) Initially, Juror No. 2 testified she heard three statements by "maybe two" jurors along the lines of "[Hill] must be guilty because he did not testify." She stated, "Who said it, I don't know." Later in her testimony, Juror No. 2 said this particular statement was made only once, or at most twice, and she had a distinct memory of the foreman being "the one person loudly saying . . . he must be guilty because he didn't testify." However, in her declaration, Juror No. 2 had said, "I am unsure of the exact statement or who said it."
Juror No. 2's version of events was not only internally inconsistent, it was discredited by the testimony of the majority of other jurors. Despite Juror No. 2's testimony that the foreperson made this comment loud enough for other jurors to hear, Juror Nos. 1, 3, 5, 8, 9, 10, 11, and 12 all explicitly denied hearing or making such a statement. The trial court's finding that Juror No. 2 was not credible is supported by the record.
Juror No. 6 also testified statements inferring guilt from Hill's failure to testify were made at least twice. As stated above, Juror Nos. 1, 3, 5, 8, 9, 10, 11, and 12 all do not recall such statements having been made. And, the trial court noted that Juror No. 6's two declarations did not indicate such a statement had been made. Juror No. 6 failed to provide a persuasive explanation for the omission. The trial court's credibility finding is supported by the record.
As noted ante, Juror No. 6's initial declaration in support of Hill's motion for new trial does not appear in the record before us. Juror No. 6's supplemental declaration says nothing about jurors referring to Hill's failure to testify. Given that error must be affirmatively shown (Jie v. Liang Tai Knitwear Co., supra, 89 Cal.App.4th at p. 666), we assume Juror No. 6's initial declaration reads as suggested by the Hedgecock hearing transcript and the trial court's finding.
Juror No. 6 was asked, by the prosecutor: "Did you ever state, in [either of those two] declarations, that you had ever heard a juror say, 'The defendant didn't testify, so he must be guilty'?" Juror No. 6 replied: "I know I heard that." The prosecutor reiterated: "What I'm asking, though, did you say that in any of your declarations?" Juror No. 6 answered: "I stated that strongly here but . . . ." The prosecutor asked: "[W]hat you did . . . write in your declarations, obviously, . . . was statements that you signed closer in time to the actual events, right?" Juror No. 6 answered: "Uh-huh. [¶] . . . [¶] Looks like about . . . four or five months after, yes." Finally, the prosecutor asked: "So . . . would you say, then, that what you have written in . . . your declaration is a more accurate representation of what occurred, as it was closer in time to the actual jury deliberation?" Juror No. 6 replied: " . . . I'm sure that when I was giving my statements at that time, I was just kind of recalling, not wanting to be, maybe, as bold, but just kind of a synopsis of what I recall."
We are not compelled to agree with Hill because Juror No. 4 testified he heard, "because [Hill] did not testify, he must be guilty." Juror No. 4 later testified this was an impression, not an express statement he recalled hearing. This testimony was inadmissible as it merely demonstrated Juror No. 4's reasoning process and his hypotheses regarding other jurors' mental processes. (Evid. Code, § 1150.) Juror No. 12 also testified another juror said, "If he doesn't have anything to hide, he should have testified." No other juror recalled a statement of this kind having been made. Furthermore, Juror No. 12's declaration was inconsistent.
In contrast, Juror Nos. 1, 3, 5, 8, 9, 10, and 11 presented consistent accounts, in their declarations and during questioning by the court and counsel, of the limited nature and extent of the jurors' discussion of Hill's failure to testify. On this record, we cannot question the trial court's crediting of those jurors who only recalled passing statements that it would have been helpful to have heard Hill's side of the story. (See People v. Nesler, supra, 16 Cal.4th at p. 582; In re Carpenter, supra, 9 Cal.4th at p. 646.) The comments and context certainly do not suggest negative inferences were taken from Hill's decision not to testify.
Most importantly, just as in Hord and Loker, substantial evidence supports the trial court's finding that, whenever the subject came up, jurors were admonished not to consider Hill's decision not to testify. (Hord, supra, 15 Cal.App.4th at p. 728; Loker, supra, 44 Cal.4th at p. 749.) The jurors were virtually unanimous on this point. Substantial evidence supports the trial court's finding the discussion of Hill's failure to testify amounted to brief statements of wonderment, followed by consistent reminders the jury could not consider it.
For similar reasons, Hill misplaces his reliance on Cissna, supra, 182 Cal.App.4th 1105. Cissna was a child molestation case, in which a juror (Juror D.) spoke daily with a nonjuror about the case. (Id. at p. 1114.) The nonjuror explicitly told Juror D. that the defendant's failure to testify meant he was guilty and provided further advice on how Juror D. should consider the evidence. (Id. at pp. 1114-1115.) The reviewing court determined the misconduct was prejudicial because it "was both pervasive (occurring every single day of the trial) and substantive (involving deliberative-type discussions about the merits of the case)." (Id. at p. 1118.) In distinguishing Hord and Leonard, the court observed: "In the absence of physical evidence, sexual molestation cases inevitably turn largely on the jury's evaluation of the victim's credibility. A defendant is entitled to have all 12 jurors make this evaluation without considering whether the defendant took the stand to deny the accusations. . . . The fact that Juror D. discussed defendant's silence [with his nonjuror friend] reflects that Juror D. considered this factor. Further, the fact that Juror D. repeatedly ignored clear instructions not to discuss the case supports that he equally ignored the court's instruction not to factor in defendant's silence when deciding the case. This improper influence obviated the defendant's constitutional right not to have his silence play any role in his conviction." (Cissna, at p. 1121.)
In contrast to Cissna, there is no evidence any juror in this case had discussions, pervasive or otherwise, with a nonjuror. Furthermore, we cannot agree with Hill that the misconduct in the instant case is more similar to the conduct discussed in Cissna than it is to the statements of wonder or curiosity discussed in Leonard. The argument ignores the trial court's finding there was no credible evidence any juror stated Hill's failure to testify meant he was guilty.
We see no meaningful basis on which to distinguish this case from Hord, Leonard, and Loker. Nor can we agree with Hill that "[t]he case was close on the mental states issues being deliberated." The physical evidence indicative of a close-range shooting, Hill's jealousy and apparent anger with Savella, as well as Hill's admissions, flight, and attempted destruction of the car and body, strongly suggest Hill acted with either express or implied malice. Substantial evidence supports the trial court's findings and our independent review of the record shows no substantial likelihood of prejudice.
Hill also maintains the facts of this case are distinguishable because, whatever reminders may have been given, they must have been ineffective because discussion about Hill's failure to testify was continuing and repeated. "Where . . . a mistake by one or more jurors during deliberations is promptly followed by a reminder from a fellow juror to disregard a defendant's decision not to take the stand—and the discussion of the forbidden topic thereafter ceases, without any objective evidence that the reminder of the court's instructions was ineffective—the reminder tends strongly to rebut the presumption that '[t]he defendant's failure to testify may still have affected the decision of at least one of the jurors.' " (People v. Lavender, supra, 60 Cal.4th at p. 691, italics added.) In contrast, "a persistent refusal to follow the court's instructions would tend to confirm the prejudicial effect of the misconduct." (Id. at p. 692.)
Juror No. 4 may have initially provided some ambiguous testimony suggesting he heard jurors state that they "could consider" Hill's failure to testify. (Italics added.) However, he later conceded he heard other jurors remind them they should not consider it. In any event, we are in no position to second guess the trial court's discrediting of Juror No. 4 on this point. Juror No. 4 appears to have based that conclusion on his own subjective impressions, rather than any overt act corroborated by the other jurors. Hill presents no basis to challenge the trial court's finding that jurors consistently gave admonishments and, thereafter, the topic was dropped.
3. Reference to Purported Extraneous Information Regarding Gun Mechanics
Hill also contends the motion for new trial should have been granted on an alternative basis—statements purportedly made by Juror No. 8 (the jury foreperson) about trigger pull. Specifically, Juror No. 8 testified: "[A] couple of us said that's like 13 to 15 pounds of pressure to pull a double action revolver." Hill asserts the jury foreperson thereby "held himself out as an expert on firearms" and introduced into the jury room extraneous "firearms expertise"—facts not based on evidence presented in court. Unlike the discussion of Hill's failure to testify, addressed above, the issue here is whether any misconduct occurred. The trial court found there was no misconduct.
"A jury's verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters." (Leonard, supra, 40 Cal.4th at p. 1414.) "It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct." (In re Malone (1996) 12 Cal.4th 935, 963.)
We are not persuaded the jurors in this case committed misconduct because, as Hill puts it, "[t]he opinion and information [J]uror No. 8 imparted to the deliberating jury was quite particular and far exceeded the common experience alluded to and allowed by Leonard." It was not misconduct for Juror No. 8, or any other juror, to comment about personal experiences with guns to evaluate the credibility of Hill's statements to police and Billops that the shooting was an accident.
In a similar situation, our Supreme Court concluded that it was "a normal part of jury deliberations and . . . not misconduct" for a juror with personal experiences with firearms to form an opinion based on that experience. (Leonard, supra, 40 Cal.4th at p. 1414.) Specifically, the juror in Leonard "said he had experience firing handguns, and that the murder weapon was an 'up close and personal' gun that could be accurately fired at close range without expertise," which contradicted the opinion of a defense expert. (Id. at pp. 1413-1414.) The Leonard court observed: " 'Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them.' [Citation.] 'Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness must be tolerated. . . . [Otherwise,] few verdicts would be proof against challenge.' " (Id. at p. 1414.)
Here, just as in Leonard, Juror No. 8 permissibly used his personal experience with guns, and related it during deliberations, to assess the evidence presented at trial. It is true that no weapon was found. Yet, contrary to Hill's assertion on appeal, evidence was in the record from which the jury could reasonably infer a revolver was used to shoot Savella. The jury did not cross the "fine line between using one's background in analyzing the evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information obtained from outside sources,' which [the Supreme Court has] described as misconduct." (People v. Steele (2002) 27 Cal.4th 1230, 1266.) For all the reasons stated above, the trial court did not err in denying Hill's motion for a new trial. C. Voluntary Intoxication Instruction
Hill also contends the trial court erred in refusing Hill's request for instruction on voluntary intoxication. We disagree. Because no substantial evidence supported the requested instruction, the trial court did not err.
With respect to murder prosecutions, voluntary intoxication evidence is admissible as to whether the defendant premeditated, and deliberated, or harbored express malice aforethought. (People v. Timms (2007) 151 Cal.App.4th 1292, 1296-1297; § 29.4, subd. (b).) "[V]oluntary intoxication 'is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt.' [Citation.] As such, the burden falls on the defendant to request a 'pinpoint' instruction." (People v. San Nicolas (2004) 34 Cal.4th 614, 669; accord, People v. Saille (1991) 54 Cal.3d 1103, 1119-1121.) Hill requested CALCRIM Nos. 625 and 3426, which would have informed the jury it could consider evidence Hill was intoxicated at the time of the alleged crime in determining whether he acted with the requisite mental state.
However, a defendant is entitled to an instruction on voluntary intoxication "only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.' " (People v. Williams (1997) 16 Cal.4th 635, 677.) "The fact that a defendant has been drinking, without evidence that he became intoxicated thereby, provides no basis for an instruction on intoxication." (People v. Sanchez (1982) 131 Cal.App.3d 718, 735, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 752.) When the evidence is, at best minimal, a trial court may properly refuse a defendant's request for a voluntary intoxication instruction. (People v. Roldan (2005) 35 Cal.4th 646, 716, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Williams, supra, 16 Cal.4th at pp. 677-678; People v. Williams (1988) 45 Cal.3d 1268, 1312.)
It is undisputed Savella used drugs on the night of the shooting. And Tapia testified, "I guess [the man Savella was talking on the phone with] was drunk already" (italics added) because Savella offered to take a cab to him. Contrary to Hill's assertion, it would be speculative to infer, from Savella's own drug usage or her text messages to Hill, that he was also using drugs or drinking alcohol. In declining to give the instruction, the trial court explained: "I don't find there's sufficient evidence to give that. I looked back at some of the text messages, and . . . what I saw was that [Tapia] said he met [Savella] at about 11:30 . . . [and Hill] was not there. It was a little after midnight when [Hill] called her, and then about 2:30 or 3:30 [a.m.] when he came over. . . . [¶] At 22:02, I saw a call that said something to the effect of, 'This N-word paranoid about being pulled over. Give me a sec to take this car.' . . . So it's not clear that that would be referencing [Hill]. It almost seems like it would not be, given [Hill] came over later. [¶] . . . [¶] At 2:51, there is a call that says, 'Baby, what the hell? That's why I finna not let you drive,' from Savella to [Hill]. But . . . there's no indication as to why she's saying that, whether it's because of intoxication or some other reason, whether there's police out." Even if Savella's texts and Tapia's testimony suggest Hill was intoxicated, they have no tendency to show that, several hours later, such intoxication affected Hill's ability to form the requisite intent or mental state pertinent to the shooting.
Our Supreme Court has previously found similar evidence to be insufficient to support an instruction on intoxication. (See People v. Roldan, supra, 35 Cal.4th at p. 716; People v. Williams, supra, 16 Cal.4th at pp. 667-678.) The trial court did not err in declining to instruct the jury on voluntary intoxication. D. Instruction to Continue Deliberations
In his final argument, Hill contends the trial court erred by giving a coercive instruction to the jury after they reported a deadlock, rather than declaring a mistrial. He argues the trial court's coercion of the jury violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the federal Constitution and his right under the California Constitution to have his guilt or innocence determined by the unanimous verdict of 12 jurors. (See People v. Gainer (1977) 19 Cal.3d 835, 848-849 (Gainer), disapproved on other grounds by People v. Valdez (2012) 55 Cal.4th 82, 163; Cal. Const., art. I, § 16; People v. Collins (1976) 17 Cal.3d 687, 693 ["[a]mong the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous"].)
1. Background
Prior to deliberations, the court instructed the jury, consistent with CALCRIM No. 3550, "[y]ou should try to agree on a verdict if you can," "each of you must decide the case for yourself," and that any verdict "must be unanimous." On May 24, 2012, at approximately 9:45 a.m., the jury began its deliberations. The jury appears to have deliberated until 4:00 p.m. On May 25, the jury returned to deliberations at 10:00 a.m. At approximately 2:45 p.m., the jury notified the court it was "in a deadlock." After the trial court conferred with counsel, the jury returned to the courtroom and delivered a verdict finding Hill guilty of attempted arson and announced it was deadlocked on the murder count.
The court asked the jury foreperson, "all I want to know is two numbers. I don't want to know one way or the other. Just two numbers. For example, 6-6, 7-5, 8-4. . . . With regards to the numerical breakdown of the jury on its round of voting for the charge of murder, what was the numerical breakdown, numbers only?" The foreperson responded, "10 guilty. [¶] . . . [¶] Or, I mean, 10 to 2." In response to the court's questions, the jury foreperson said there had been movement in those votes over the course of "seven to ten" rounds of voting. The jurors were then individually polled. Each confirmed deadlock and an opinion that the court could do nothing further to assist. After hearing argument from defense counsel in favor of a mistrial, the court instructed the jury to return the following Tuesday, on May 29. The trial court told the jury: "At this point, given the length of the trial [(six full days)] and the number of witnesses [(34)], I am not going to declare a mistrial. I am going to have you come back on Tuesday to continue with deliberations a little bit further." (Italics added.)
After the jury exited the courtroom, the trial court further explained: "[W]ith this number of witnesses, over the length of time that this trial spanned, that the number of hours they have actually deliberated is not all that much. [¶] I think, generously, they deliberated about five or six hours [on May 24]. That's assuming they deliberated over the lunch hour with food coming in, that they didn't take a break in there. And they deliberated about 3 hours, 45 minutes [on May 25], again assuming they didn't take any breaks. . . . [¶] . . . I don't think given the nature of the case, the length of the case and the number of witnesses that asking them to deliberate further is unreasonable." When the jury returned the following Tuesday, May 29, the trial court overruled defense counsel's objections to the court's proposed supplemental instruction, and the jury was given a modified version of the instruction that deleted a reference to reaching a fair and impartial verdict "regardless of how long it takes to do so." Thereafter, the jury continued deliberations, requested "a more clear definition or example of second degree murder and voluntary manslaughter," and after about five hours reached a verdict finding Hill guilty of second degree murder.
Specifically, the trial court instructed: "Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict. [¶] It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen and consider the views of your fellow jurors. [¶] In the course of your further deliberations you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. [¶] You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. [¶] Fair and effective jury deliberations require a frank and forthright exchange of views. [¶] Each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge, if you can do so without violence to your individual judgment. [¶] Both the People and the Defendant are entitled to the individual judgment of each juror. You have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily, and try new methods. [¶] For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side's position, and vice versa. This might enable you to better understand the others' positions. [¶] By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely find you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors. [¶] May I also suggest that you re-read CALCRIM instructions 200, Duties of Judge and Jury, and 3550, Pre-Deliberation Instructions. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate. The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by the instructions. [¶] You are ordered to continue your deliberations at this time. If you have other questions, concerns, requests or any communications you desire to report to me, please put those in writing on the form my bailiff has provided you with. Have them signed and dated by your foreperson, and then please notify the bailiff."
In response, the trial court referred the jury to the previously given instructions on distinguishing first and second degree murder, provocation, and voluntary manslaughter (CALCRIM Nos. 520, 522, and 570).
2. Analysis
Hill maintains the trial court erred in failing to declare a mistrial after each juror informed the court of his or her belief the jury was hopelessly deadlocked. Hill also insists the supplemental instruction given by the trial court unduly coerced the holdout jurors to reach a verdict.
"Section 1140 provides, 'Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.' The determination whether there is a reasonable probability of agreement rests within the sound discretion of the trial court. [Citation.] 'Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' " (People v. Harris (2005) 37 Cal.4th 310, 363-364.)
The trial court did not abuse its discretion in declining to declare a mistrial. All of the jurors gave their individual opinion they were hopelessly deadlocked. However, the jury's own assessment is not determinative. (People v. Harris, supra, 37 Cal.4th at pp. 364-365; People v. Sandoval (1992) 4 Cal.4th 155, 195-196; People v. Rodriguez (1986) 42 Cal.3d 730, 774-777.) Here, in denying Hill's motion for mistrial, the trial court observed the evidentiary portion of the trial involved the testimony of numerous witnesses, over the course of approximately six days. The trial court did not abuse its discretion in concluding there remained a reasonably probability of agreement in these circumstances, when the jury had deliberated for no more than eight to ten hours.
In giving supplemental jury instructions to a potentially deadlocked jury, " '[t]he court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' [Citations.] [¶] Directing further deliberations is proper where the trial court reasonably concludes that 'such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' " (People v. Whaley (2007) 152 Cal.App.4th 968, 979-980.) The question of coercion is dependent on the facts and circumstances of each case. (People v. Breaux (1991) 1 Cal.4th 281, 319.)
In People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), the jury reported a deadlock one day after it began deliberations on an attempted murder charge. (Id. at pp. 1108, 1118.) Over a defense objection, the trial court gave the jury an instruction almost identical to that given in this case. (Id. at pp. 1118-1120.) Following the additional instruction, the jury recessed for the weekend, and reached a verdict after two additional hours of deliberation the following Monday morning. (Id. at p. 1120.)
The reviewing court rejected the defendant's argument the instruction was coercive. (Moore, supra, 96 Cal.App.4th at pp. 1120, 1122.) It explained: "The trial court's additional instruction . . . did not direct the jurors that 'the case must at some time be decided.' To the contrary, the court instructed that the 'goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.' (Italics added.) Nothing in the trial court's charge was designed to coerce the jury into returning a verdict. [Citation.] Instead, the charge simply reminded the jurors of their duty to attempt to reach an accommodation. [¶] Additionally, the court directed the jurors to consider carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views, and to consider the views of their fellow jurors. Finally, the court instructed that it was their duty as jurors to deliberate with the goal of arriving at a verdict on the charge 'if you can do so without violence to your individual judgment.' (Italics added.) [¶] . . . The trial court also made no remarks either urging a verdict be reached or indicating possible reprisals for failure to reach an agreement. In short, it is clear the trial court took great care in exercising its power 'without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency.' " (Moore, at p. 1121.) Indeed, the trial judge was "commended for fashioning such an excellent instruction." (Id. at p. 1122.)
Despite repeated judicial approval of the instruction used by the trial court (Moore, supra, 96 Cal.App.4th at pp. 1118-1122; People v. Whaley, supra, 152 Cal.App.4th at pp. 979-985), Hill contends its use was coercive in this case, relying on Gainer, supra, 19 Cal.3d 835. In Gainer, our Supreme Court disapproved the so called "Allen instruction" because it directed the "holdout" jurors to consider their status as dissenters, "a consideration both rationally and legally irrelevant to the issue of guilt." (Gainer, supra, 19 Cal.3d at p. 848.) The court said, "[W]e should not hesitate to condemn an instruction which carries a strong implication that jurors should consider the preponderance of votes in forming their views simply because the charge subtly avoids an explicit statement of that proposition." (Id. at p. 848, fn. 10.) Gainer held: "[I]t is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." (Id. at p. 852, fn. omitted.)
The instruction given here does not suffer similar defects. The instruction used explicitly advised jurors to "decide the case for yourself . . . after a full and complete consideration of all of the evidence," and to attempt to reach a verdict "if you can do so without violence to your individual judgment." It did not require the jury to reach a verdict. Nor does the instruction single out dissenting jurors, encourage them to reexamine their views out of deference to majority opinion, or state that the case will be retried if the jury is unable to reach a verdict. These are the same distinctions relied on by the Moore court. (Moore, supra, 96 Cal.App.4th at p. 1121.) By further modifying the Moore instruction and telling the jury on May 25 that the trial court would not declare a mistrial "[a]t [that] point," but would require them to deliberate "a little bit further," the court made very clear the jury would not be forced to deliberate indefinitely.
Nevertheless, Hill attempts to distinguish Moore and Whaley, arguing the instruction was coercive in the circumstances of this case because the trial court knew the numerical division of the jury, including the direction it was leaning. (See People v. Carter (1968) 68 Cal.2d 810, 816 ["[m]ost cases wherein adjuratory remarks of the court have been held coercive are those in which the court . . . has become informed not only as to the numerical division of the jury but also as to how many stand on each side of the ultimate issue of guilt"].) However, our Supreme Court has since decided that instructing a juror to deliberate further following inadvertent disclosure to the court of the number of jurors favoring conviction is potentially coercive depending on the nature of the instruction given and all other circumstances, but not inherently coercive. (See People v. Bell (2007) 40 Cal.4th 582, 617, overruled on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686 & fn. 13; People v. Sheldon (1989) 48 Cal.3d 935, 959-960.) The trial court's inadvertent discovery of how the jury was divided just means that its actions and instructions thereafter are more closely scrutinized. Whether coercion took place remains a question of the circumstances. (See Sheldon, at pp. 959-960; People v. Carter, supra, 68 Cal.2d at p. 817.)
In Moore, the trial judge had no information about the numerical division or direction in which the jury was headed. (Moore, supra, 96 Cal.App.4th at p. 1118.) In Whaley the trial court knew the numerical division (11 to 1), but not the direction. (Whaley, supra, 152 Cal.App.4th at p. 984.)
In People v. Sheldon, supra, 48 Cal.3d 935, the trial court's use of a similar supplemental instruction was approved, despite the jury foreman having informed the trial court the jury was deadlocked 11 to 1 in favor of the death penalty. (Id. at pp. 958-960.) Upon questioning by the court, however, several jurors, while confirming the deadlock, "expressed the hope that further instructions . . . might assist in bringing about a verdict." (Id. at p. 958.) Our Supreme Court observed: "There is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror favoring acquittal. In such a case, the judge's remarks to the deadlocked jury regarding the clarity of the evidence, the simplicity of the case, the necessity of reaching a unanimous verdict, or even the threat of being 'locked up for the night' might well produce a coerced verdict. [Citation.] But the potential for coercion was not realized by . . . [¶] [a trial judge's] remarks or actions [that] could not have been interpreted by the holdout juror as an agreement with the position taken by the 11 jurors voting for conviction. [Citation.] Moreover, the court made no remarks either urging that a verdict be reached or indicating possible reprisals for failure to reach agreement." (Id. at pp. 959-960.)
The jury was reread the penalty instructions and the following admonition: " 'It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after a discussion of the evidence and instructions with the other jurors. [¶] You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision." (Sheldon, supra, 48 Cal.3d at pp. 958-959.)
Here, too, the trial court may have become inadvertently aware that the dissenting jurors favored a "not guilty" verdict, but Hill does not persuade us this knowledge necessarily translated into coercion despite the impartial nature of the Moore instruction. That the jurors deliberated for another five hours after receiving the disputed instruction, and requested clarification on the law of second degree murder and voluntary manslaughter, suggests they remained focused on the evidence and the law. The trial court did not err.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.