Opinion
B226242
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGELA MARIE JOHNSON, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. KA088534 c/w KA088762)
APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury found appellant Angela Marie Johnson guilty of second degree robbery (Pen. Code, § 211) and petty theft with a prior (Pen. Code, § 666), she sought a new trial on the ground of juror misconduct. The trial court denied the motion. Appellant's sole challenge on appeal is to the ruling on her new trial motion. Finding no error, we affirm.
All further statutory citations are to the Penal Code.
RELEVANT PROCEDURAL HISTORY
On January 4, 2010, an information was filed, charging appellant in counts 1 and 2 with second degree robbery and in count 3 with petty theft with a prior. Under count 2, the information alleged that appellant had personally used a firearm (§ 12022.53, subd. (b)); in addition, under all of the counts, the information alleged that appellant had served four prior prison terms (§ 667.5, subd. (b)). Appellant pled not guilty and denied the special allegations.
The information reflected the consolidation of two cases (KA088534, KA088762).
On February 24, 2010, a jury found appellant guilty as charged, and found the gun-use allegation to be true. Following a bench trial, the trial court determined that appellant had served three prior prison terms. On July 14, 2010, the court denied appellant's new trial motion based on juror misconduct, and sentenced her to a total prison term of 17 years and 8 months.
FACTS
A. Prosecution Evidence
1. Count 1(Second Degree Robbery)
On October 17, 2009, Maria Quintana was employed at First Best Bargain, a convenience store in Pomona. Appellant entered the store and asked Quintana whether it sold a certain kind of undershirt. After Quintana directed her to the store's undershirts, she watched appellant on the store's closed circuit TV system. When Quintana saw appellant stuff some packages into her pants, she told appellant to remove the packages and leave the store. Appellant called her "a Mexican bitch," and shoved Quintana when she tried to recover the merchandise from appellant's waistband. As appellant left the store with the packages, she held out her fingers like a gun and said that she was going to "smoke" Quintana. Appellant drove away in a car with some men. Quintana later identified appellant in a photographic line-up.
The jury viewed several photographs of the incident from the store's closed circuit television system.
2. Count 2 (Second Degree Robbery)
In 2009, Victor Soria worked at Eric's $4.99 Store in Pomona. Prior to October 17, 2009, appellant had bought items in the store two or three times. On that date, she entered the store, accompanied by three men. After placing more than 20 items of clothing in her arms, she began to leave the store with the men. When Soria confronted her, she lifted her shirt to display the handle of a gun tucked into her waistband and said "Shut up, cuz." Appellant then drove away in a car. Soria provided the car's license plate number to the Pomona Police Department, and later picked out appellant in a photographic line-up. He also identified as clothing from the store some items officers found in appellant's residence.
3. Count 3 (Petty Theft with a Prior)
On September 20, 2009, Jennifer Daub was a supervisor in a CVS store in Pomona. According to Daub, appellant and another woman entered the store, surveyed the employees' locations, and walked to different aisles. After appellant's companion appeared to take some pain medication from a shelf, she rejoined appellant in another aisle, where they placed items of clothing into bags they were carrying. When Daub tried to confront them, they ran out of the store with their bags and drove away in a car. Daub provided the car's license number to the Pomona Police Department, and later identified appellant in a photographic line-up.
B. Defense Evidence
Tracia Carter, Anna Rosas, and Frances Rojas testified that on October 17, 2009, appellant attended a fundraising car wash from approximately 9:30 a.m. to 6:00 p.m.
Robert William Shomer, an expert on eyewitness identification, testified that photographic line-ups are suggestive when they focus attention on an individual, contain individuals who do not meet a suspect's initial description, or are supplemented with improper admonitions.
DISCUSSION
Appellant contends the trial court erred in denying her new trial motion based on juror misconduct. She maintains that the court (1) incorrectly found insufficient evidence of misconduct, and (2) conducted an inadequate evidentiary hearing into the purported misconduct. For the reasons discussed below, we reject this contention.
A. Governing Principles
When a defendant seeks a new trial on the basis of juror misconduct, the trial court has broad discretion in resolving the motion (People v. Dykes (2009) 46 Cal.4th 731, 809), which encompasses the decision to conduct an evidentiary hearing (People v. Avila (2006) 38 Cal.4th 491, 604). In reviewing the trial court's rulings on the motion, we "accept the trial court's factual findings and credibility determinations if they are supported by substantial evidence, but must exercise [our] independent judgment to determine whether any misconduct was prejudicial. [Citations.]" (People v. Dykes, supra, 46 Cal.4th at p. 809.)
Appellant's new trial motion contended, inter alia, that during trial but before jury deliberations began, some jurors discussed the case and expressed the opinion that she was guilty. Jurors are subject to a "duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon[,] until the cause is finally submitted to them." (§ 1122, subd. (b).) The jury was repeatedly so instructed during the underlying trial. Violation of this duty by jurors "is serious misconduct." (In re Hitchings (1993) 6 Cal.4th 97, 118).
B. Underlying Proceedings
On April 20, 2010, approximately two months after the jury verdict, appellant filed a motion for a new trial, asserting that she had discovered two instances of juror misconduct. The primary instance of misconduct involved a dismissed juror -- former Juror No. 10 -- who did not participate in the deliberations underlying the verdict. According to the supporting declaration from appellant's defense counsel, Rodolfo Aguirre, during the trial two defense witnesses told him they were surprised to be called to testify, as they believed the jury had already decided that appellant was guilty. When Aguirre investigated these remarks, he discovered that former Juror No. 10 was the source of this belief. According to Aguirre, during the trial, former Juror No. 10 told a beauty salon employee that the jury had already decided appellant's guilt. Aguirre sought leave to ask former Juror No. 10 why she thought the jury had formed an opinion regarding appellant's guilt before the defense witnesses had testified.
Shortly after the jury began its deliberations, the trial court dismissed former Juror No. 10 because a defense witness was a customer of the beauty salon at which former Juror No. 10 worked. Former Juror No. 10 was replaced by an alternate juror, and the jury was instructed to restart its deliberations.
The second instance of misconduct involved Juror No. 3, who had participated in the deliberations underlying the verdict. According to Aguirre, after the jury returned its verdict, Juror No. 3 told him that although he had believed there was insufficient evidence to establish the firearm allegation in connection with count 2, he ultimately "went along with the other jurors." The new trial motion contended that Juror No. 3's conduct denied appellant "fair and due consideration of the case." (§ 1181, subd. (3).)
Although the trial court declined to unseal former Juror No. 10's personal information (Code Civ. Proc., § 237), it gave Aguirre an opportunity to find additional evidence of her alleged mid-trial remarks regarding the jury's premature guilt determination, as Aguirre knew her place of employment. However, former Juror No. 10 refused to speak with Aguirre, and the beauty salon employee who purportedly heard the mid-trial remarks told Aguirre that former Juror No. 10 made no such remarks.
Nonetheless, while investigating whether the jury had formed a premature opinion of guilt, Aguirre met with Juror No. 3, who told Aguirre that during the trial, he overheard some jurors discussing appellant's guilt. In support of the new trial motion, Aguirre submitted a supplemental declaration describing Juror No. 3's remarks to him regarding this incident. The declaration stated: "[Juror No. 3] recalled sitting outside in the hallway of the court with the other jurors and overhearing a female juror say, 'she did it, she did it.'. . . [T]his juror said it to another female juror who was agreeing with her. . . . [Juror No. 3] . . . saw about three jurors discuss the case in the hallway and they were agreeing with each other as to the guilt of [appellant]. [Juror No. 3] . . . did not recall which jurors were involved in the conversation."
On the basis of this showing, the court decided to hear testimony from Juror No. 3. On direct examination, Juror No. 3 testified as follows:
"Q. [by Aguirre] Did you hear other jurors discussing the case before deliberations began?
"A. Yes.
"Q. Can you tell us the circumstances of that?
"A. They were just outside like in a cluster of people. I was about, if I can recall, about 50 feet away, and I could just see them, . . . , I guess gestures, and . . . I guess I can like faintly hear.
"Q. Did you hear them discussing the case?
"A. Yes.
"Q. What was it that you heard?
"A. Just . . . actually I heard like, I think she did it. Did she do it? I think she did it. . . .
"Q. And you recall about how many jurors that were in this group?
"A. I just know it was a cluster of people. I didn't count them.
"Q. You don't remember who they were at this point?
"A. No.
"Q. Do you remember if they were male or female?
"A. A cluster of people. I guess a group of male[s] and female[s].
"Q. Do you remember how many?
"A. No.
"Q. And this was before the deliberations, correct? [¶] . . . . [¶]
"A. Yes.
"Q. Was it before [the] defense witnesses testified . . . ?
"A. I can't recall . . . . "
On cross-examination, Juror No. 3 testified as follows:
"Q. [by the prosecutor] You were 50 feet away, is that correct?
"A. About 50 feet, yeah, about.
"Q. Were these people speaking loudly?
"A. No.
"Q. How do you know they were speaking about [appellant]?
"A. Because they were referring to a she.
"Q. But you don't know what they were really talking about because you weren't part of that conversation . . . ?
"A. Correct."
In denying the new trial motion, the trial court concluded that appellant had failed to show, by a preponderance of the evidence, that there had been juror misconduct. The court stated: "[Juror No. 3] was quite a distance away . . . . There's no evidence as to who these jurors were talking about. Also [Juror No. 3], if he thought there was some misconduct, given my constant admonitions about not discussing the case, . . . could have brought that to the attention of the court."
C. Failure to Show Misconduct
Appellant challenges the trial court's finding that she failed to establish juror misconduct, arguing that Juror No. 3's testimony was uncontroverted. We see no error in the determination. As our Supreme Court has explained, when, as here, the trial court renders a factual finding regarding the existence of juror misconduct, "[t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court, and its findings of fact, express or implied, must be upheld if supported by substantial evidence." (In re Carpenter (1995) 9 Cal.4th 634, 646-647.)
On appeal, appellant does not discuss the other basis for her new trial motion, namely, Juror No. 3's posttrial remark to Aguirre that he "went along with the other jurors" regarding the gun-use allegation under count 2. Appellant has thus forfeited any contention of error predicated on this remark. However, even if we were to address the alternative basis for the new trial motion, we would conclude that it is meritless, as evidence of Juror No. 3's subjective thought process during the jury deliberations cannot be employed to impeach the verdict. (People v. Tafoya (2007) 42 Cal.4th 147, 195.)
In determining the existence of juror misconduct, the trial court may properly disregard uncontroverted testimony that is reasonably regarded as not credible. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.) "'[S]o long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted. [Citations.]'" (Ibid., quoting Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204[-1205].)
We find guidance regarding appellant's contention from People v. Majors (1998) 18 Cal.4th 385. There, the defendant sought a new trial on the basis of juror misconduct. (Id. at pp. 417-418.) The defendant relied on testimony from a juror who stated that during trial, he overheard other jurors express opinions regarding the case. (Id. at p. 425.) However, the juror was unable to recall the opinions, which he characterized simply as "speculati[ve]." (Ibid.)In affirming the denial of the new trial motion, our Supreme Court concluded that "[a]bsent concrete evidence as to the content of the jurors' discussions or the nature of their opinions, the record fails to establish misconduct." (Ibid.)
We reach the same conclusion here. Juror No. 3 testified that from a distance of 50 feet, he overheard a group of jurors in conversation. Although their remarks were faint, he believed that he heard statements such as, "I think she did it." As he had not participated in the conversation, he inferred that "she" referred to appellant and "it" referred to the crime or crimes with which she was charged. Juror No. 3 could not recall who was in the group, who spoke or when the conversation occurred during the trial. Nor did he bring the conversation to the court's attention during trial, notwithstanding the court's repeated admonitions to refrain from discussions regarding the case.
In view of these circumstances, the trial court reasonably concluded that Juror No. 3's testimony failed to establish misconduct. When questioned, Juror No. 3 acknowledged that he did not know what the jurors were discussing, thus making his interpretation of their remarks speculative. His failure to report the remarks to the trial court further evidenced his uncertainty as to their meaning. In the absence of "concrete evidence as to the content of the jurors' discussions or the nature of their opinions, the record fail[ed] to establish misconduct." (People v. Majors, supra, 18 Cal.4th at p. 425.)
Appellant's reliance on People v. Brown (1976) 61 Cal.App.3d 476 is misplaced. In Brown, the defendant supported his new trial motion with a declaration from a juror stating that early in the trial, he talked to a fellow juror, who said of the defendant, "'"He is guilty,'"" and "'"There is no doubt about it.'"" (Id. at pp. 478-479.) Although the declaration was uncontradicted, the trial court denied the new trial motion. (Id. at pp. 479-482.) In reversing, the appellate court concluded that the declaration could not be disregarded because it clearly showed that a juror had prejudged the defendant's case. (Id. at pp. 480-481.) As explained above, that is not the case here. In sum, the trial court did not err in concluding that appellant failed to show juror misconduct.
D. Failure to Investigate
Appellant also contends that the trial court conducted an inadequate evidentiary hearing regarding her allegations that some jurors prematurely formed opinions regarding her guilt. We disagree.
When a defendant makes an adequate prima facie showing of juror misconduct, the trial court must conduct a hearing. (People v. Tuggles (2009) 179 Cal.App.4th 339, 380.) However, "[a]lthough a hearing is required, testimony by jurors may not be necessary." (Ibid.)Generally, a defendant is not entitled to an evidentiary hearing on juror misconduct as a matter of right. (People v. Avila, supra, 38 Cal.4th at p. 604.) "Such a hearing should be held only when the court concludes an evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.] 'The hearing . . . should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' [Citation.]" (Ibid.)A showing based on hearsay evidence of juror misconduct is ordinarily insufficient to carry this burden, and "'[t]he hearing should not be used as a "fishing expedition" to search for possible misconduct.'" (Id. at p. 604, quoting People v. Hedgecock (1990) 51 Cal.3d 395, 419.)
Under these standards, we discern no error in the scope of the evidentiary hearing. Although Aguirre's declaration regarding the conversation overheard by Juror No. 3 constituted only hearsay evidence of juror misconduct, the trial court conducted an evidentiary hearing and found Juror No. 3's testimony not credible evidence of jury misconduct. In view of this determination, additional evidentiary hearings were unnecessary because Juror No. 3's testimony raised no "'material, disputed issues of fact.'" (People v. Avila, supra, 38 Cal.4th at p. 604.) Furthermore, as Juror No. 3 could not identify the participants in the conversation, any further inquiry would have amounted to a "'"fishing expedition"'" for possible misconduct (ibid.),as it would have encompassed all the other jurors.
Appellant suggests that under federal constitutional standards, Juror No. 3's testimony triggered a wider evidentiary inquiry. We reject this contention. In People v. Dykes, supra, 46 Cal.4th 731, our Supreme Court noted that under the applicable federal standards, a "'posttrial juror interrogation'" is required only when there is "'"clear," "strong," and "incontrovertible" evidence'" of alleged juror misconduct (id. at p. 810, fn. 23, quoting U.S. v. Rosario (2d Cir. 1997) 111 F. 3d 293, 298-299) or when the source of the allegations has sufficient credibility (U.S. v. Angulo (9th Cir. 1993) 4 F.3d 843, 847; People v. Dykes, supra, at pp. 809-810, fn. 23). For the reasons explained, these standards are not satisfied here.
Accordingly, the trial court did not err in concluding that additional inquiry into juror misconduct was unwarranted.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.