Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 50518035
Haerle, J.
I. INTRODUCTION
After a ten-day jury trial, appellant was convicted of arson and sentenced to state prison for a term of five years. He appeals claiming abuse of discretion by the trial court in not sufficiently inquiring into a complaint of possible jury misconduct. We find no abuse of discretion and hence affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In view of the single and limited issue raised by appellant in his briefs to this court, we will only briefly summarize the facts and procedural history of this case.
On December 29, 2004, an 82-year old woman named Cora Morgan was found dead in a burning apartment in Walnut Creek by firefighters. The decedent had lived in that apartment with her daughter, Pamela Jackson, and the latter’s husband, appellant. Pamela Jackson had gone to work in the early afternoon of that day, and was picked up at work by appellant at around 10 p.m. When he picked her up, appellant, who was then unemployed, told her there had been a fire in their apartment.
Subsequent investigation revealed that there had been substantial discord in the household, both between appellant and his wife and appellant and his mother-in-law, the decedent, as a result of which appellant had been asked to leave the apartment the following month. Additionally, subsequent police investigation revealed that the victim had apparently died of strangulation, and napkins had been stuffed down her throat. It also revealed that there had been three fires started in the apartment, two in upstairs bedrooms by burning candles and a third in the kitchen.
Appellant was arrested by the Walnut Creek police on December 31, 2004, and agreed to take a polygraph test on the subject of his responsibility for the death of his mother-in-law. He failed that test. He then asked to speak to his wife privately, and was allowed to do so. He confessed to her that, during an altercation in the kitchen at around 2 p.m. on December 29, he had elbowed the decedent in the face and, when he saw her bleeding as a result of that act, strangled her and then set the fires to make her death appear accidental.
After this confession to his wife, however, appellant reverted to denying any involvement in his mother-in-law’s death or the fire. Later, while in custody, appellant told a different version of events to the police, i.e., that when he was in the process of defending himself from an expected blow from the decedent, she was knocked back, and fell down the stairs, apparently becoming unconscious. Appellant, a former convict, said he was afraid of being returned to prison, so he proceeded to strangle the decedent with an electric cord and then stuffed napkins down her throat to make sure she was dead. After then considering what to do for a long time, he decided to set the apartment on fire. When the fire department responded, he arranged to leave and pick up his wife from work.
On December 12, 2005, appellant was indicted for both first degree murder (Pen. Code, § 187) and for arson of an inhabited structure (Pen. Code, § 451, subd. (b)).
The following year, appellant was tried on both counts. On November 3, 2006, the jury convicted him of arson, but deadlocked on the murder charge, resulting in a mistrial. On the arson count, the court sentenced appellant to state prison for a term of five years. Appellant filed a timely notice of appeal.
III. DISCUSSION
The only issue appellant raises on appeal pertains to an incident, and a consequent instruction given by the court, on the sixth day of the ten-day trial. On that day, October 24, 2006, just after the luncheon recess, Juror No. 8 sent a note to the trial judge (the Honorable Barbara Zuniga) requesting that she “re-admonish the jury.” The record reflects the following regarding this incident:
“THE COURT: We’re back on the record meeting outside the presence of the panel.
“I received a note from juror number eight, and from the gist of the comment I suspect that some of the jurors have been talking about this case.
“She asked that if I would please re-admonish the jury. [¶] We can proceed, I can proceed – I’m thinking about doing one of two things. I need her to come in – I need to find out what she’s heard, or if it’s just general comments she’s heard, or if it’s something of a much more serious nature – and if necessary, talk to those jurors to make sure that they still have an open mind.”
Juror No. 8 then entered the courtroom, and the following dialogue ensued:
“THE COURT: Juror Number Eight, you sent a note to me, which caused me a little bit of concern. When you asked me to re-admonish the jury, did something happen that caused you to write this note to me?
“JUROR EIGHT: Yes. I would say that I felt a sense of casual, a couple casual remarks, I can’t say exactly what they meant, but I felt uncomfortable enough to ask them to please not discuss it.
“THE COURT: These are fellow jurors? JUROR EIGHT: Yes.
“THE COURT: What was the nature of the comments? If you can recall, ma’am.
“JUROR EIGHT: Maybe some exasperation at one or the other sides.
“THE COURT: Okay.
“JUROR EIGHT: I can’t even tell which side.
“THE COURT: They were just expressing some exasperation at what one of [sic] the other side was doing?
“JUROR EIGHT: Yeah. And I take it so seriously.
“THE COURT: No. It’s right, and you should, ma’am. [¶] Do you recall which jurors it was or juror? Where he or she
“JUROR EIGHT: You know, I don’t even know their names, and I couldn’t really even tell you. [¶] I considered that the – I just thought just a remainder [sic] and a definition of what it was . . .
“THE COURT: Okay. My concern is it goes a little farther. I have to make sure that people still have that open mind that we talked about. [¶] Any recollection at all what this juror looks like?
“JUROR EIGHT: Yes. One of them is the one that was late today who just made a remark. I think it was yesterday, and I asked her to please not discuss the case.
“THE COURT: Was it also exasperation?
“JUROR EIGHT: Yes.
“THE COURT: Okay.
“JUROR EIGHT: And I don’t know – to be honest, I don't know if it was at you or anybody.
“THE COURT: Okay.
“JUROR EIGHT: I just said you can’t . . . .
“THE COURT: Okay.
“JUROR EIGHT: Then the other one is, it’s not Juror Number One, it’s the other kind of reddish-haired woman
“THE COURT: She’s in the back row? JUROR EIGHT: – lighter red hair.
“THE COURT: She has light hair and she’s sitting in the row behind you?
“JUROR EIGHT: I think so.
“THE COURT: Okay. Thank you, Juror Number Eight. I didn’t mean to put you on the spot here, but this is important that you brought it to my attention. I appreciate it very much. If you could join the rest of the panel for me, please.”
Juror No. 8 then left the courtroom and the following dialogue ensued:
“THE COURT: Do you know who she is talking about, Brian?
“THE BAILIFF: I don’t think it’s Mattei.
“THE COURT: Mr. Cope?
“MR. COPE: May I offer a suggestion? Maybe we go ahead and proceed; that will give us all an opportunity to see where they are sitting, and then maybe after we’ve finished with this witness, then you can make your inquiry if you have determined who it is.
“The other thing I’m worried about now is the possible wedge that is being driven, and I would have liked to have inquired of Juror Number Eight if these people were receptive to her invitation to not discuss the matters, and that maybe they were saying, ‘[o]h you’re right. And everything is fine. We shouldn’t have shown our frustration out here.’
“Or maybe it’s all fine. But if now she’s going to be the snitch and they are not going to get along, I would like to inquire a little bit about that.
“Maybe it’s all well-natured, but now she’s also been drawn out from the other jurors.
“[APPELLANT]: Your Honor why don’t we
“THE COURT: Just hang on a second Mr. Jackson.
“If you wanted–I can bring her back in and, yes, ordinarily, I would have asked counsel if they had any questions before I excused her, but the situation is a little bit different. I did not want to open it up to
“[APPELLANT]: We have, he’s already done it.
“[MR. COPE]: You can make that inquiry. I don’t mind that you do it. And I don’t mind that you wait until after a witness is done and you have recognized the other people that you need to talk to, too. Whatever way is best.
“THE COURT: Okay. Yes, Mr. Jackson, you were going to say?
“[APPELLANT]: Yes. It was just a suggestion, but if it was some exasperation going on in the jury, why don’t you just bring them all in and then kind of redirect them to kind of keep an open mind without pointing anybody out. And that way it’s like nobody snitched, and then we can continue with the questioning today.
“THE COURT: I have no objection to doing that, Mr. Jackson. I just wanted to be sure that everyone has an open mind.”
At the conclusion of the day’s proceedings, the trial court did in fact readmonish the jury as follows:
“THE COURT: . . . [I]t appears that we will not be in session tomorrow, but we are on track, actually. [¶] We’re actually a little ahead of time.
“And because we’re going to be going over – you have to have a long break between now and Monday when you come back in. [¶] I just want to remind everybody of the admonishment in this case, that you can’t discuss the case with each other and that even includes making comments, everyone.
“I can appreciate that you're feeling some frustration, but unfortunately, because of the T.V. programs, there’s a misperception as to how trials proceed, that they are all going to get done in an hour, or it’s like an epic, maybe it’s over a couple of nights. But things don’t run like that in the real world. So I’m asking you to have some patience with us.
“But you really need – it is very important that all of you keep that open mind we talked about during jury selection and don’t make any comments – keep those comments to yourself–and just wait until you go into the jury deliberation room and you can talk among yourselves. But please don’t make any comments at all about the case.”
In his briefs to us, appellant asserts that the court erred in not conducting a more thorough investigation into exactly what Juror No. 8 was bringing to its attention, and also suggests it erred in not re-admonishing the jury when it reassembled, rather than at the end of the trial day.
The Attorney-General responds by contending that, in view of appellant’s personal suggestion to the court that a re-admonishment would be sufficient, appellant is now estopped from arguing that there was any error and, secondly, that even if there was no estoppel, the court did not abuse its discretion in this circumstance.
We conclude that we need not consider the People’s estoppel argument in view of the facts that (1) appellant was in pro per in the trial court and (2) estoppel or not, there was no abuse of discretion here.
First of all, as the foregoing summary makes clear, both parties agree that abuse of discretion is our standard of review in a case involving the court handling of alleged jury misconduct, and they are of course correct. (See, e.g., People v. Beeler (1995) 9 Cal.4th 953, 989; People v. Ray (1996) 13 Cal.4th 313, 343 (Ray); People v. Bradford (1997) 15 Cal.4th 1229, 1349 (Bradford).)
We find no such abuse here. In the first place, we disagree with appellant’s characterization of the court’s questioning of Juror No. 8 as “cursory.” Under the circumstances, Juror No. 8’s description of the other jurors’ comments that caused her to write her note to the court was not exactly breath-taking. She described them as “a couple of casual remarks” expressing “some exasperation at one or the other [side].” Later, Juror No. 8 added that she wasn’t sure the “exasperation” she thought she had heard “was at you [i.e., the court] or anybody.”
In the ensuing discussion with the prosecutor and appellant, both expressed concern that a specific inquiry by the court, as distinguished from a readmonishment, might expose Juror No. 8 as a “snitch,” which would not be constructive. The prosecutor specifically used the word “snitch,” and appellant then agreed that a later re-admonishment by the court would mean “it’s like nobody snitched. . . .” Both for that reason and also for the lack of any specificity in Juror No. 8’s report concerning eitherthe source of the “exasperated” comments or their target, we disagree with appellant that any further inquiry was mandated at that point. As our Supreme Court has repeatedly noted, a “hearing is required only where the court possesses information which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case.” (Bradford, supra, 15 Cal.4th at p. 1348; see also, Ray, supra, 13 Cal.4th at pp. 343-344. And as the same court put it even more recently, “not every incident involving a juror’s conduct requires or warrants further investigation.” (People v. Cleveland (2001) 25 Cal.4th 466, 478-480.)
As noted earlier, the court did give a re-admonishment a few hours later, at the end of the afternoon session. Appellant appears to suggest that it should have been given earlier, i.e., before the afternoon session started. We disagree; doing so after, obviously, Juror No. 8 had been alone in the courtroom with the judge, the prosecutor and appellant, and the rest of the jurors apparently in the hallway, might well have exposed her as the cause of the court’s re-admonishment.
There was no abuse of discretion by the trial court in its handling of the report received from Juror No. 8.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.