Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050805754.
Jones, P.J.
Erhan Kayik (appellant) appeals from a judgment entered after a jury convicted him of second degree murder. (Pen. Code, §§ 187, 189.) He contends the judgment must be reversed because (1) the trial court instructed the jury incorrectly, (2) the court erred when it denied his motion for a new trial, and (3) the court erred when it admitted certain evidence. We conclude the court did not commit any prejudicial errors and will affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of murdering his 16-year-old son Volkan.
Appellant was born and raised in Turkey. He married in 1990 and shortly thereafter his wife gave birth to Volkan. Appellant and his wife divorced when Volkan was one. Sometime thereafter, Volkan’s mother died in an accident. Appellant blamed Volkan for her death. Appellant remarried and moved to the United States. Volkan remained in Turkey with his grandparents.
Volkan was a charming child but he was also difficult in some ways. He did poorly in school and had problems at work. Volkan also ran away from home. The problems grew serious enough that appellant went to Turkey and brought Volkan back to the United States.
Volkan’s problems continued after the move. He got into fights at school and ran away from home repeatedly. Appellant, who was struggling to overcome the effects of a recent heart attack, found Volkan’s problems to be challenging.
On at least one occasion, appellant’s response to Volkan’s behavioral problems exceeded permissible bounds. Volkan told a social worker, Randall Freitas, that appellant hit him. Thereafter in May 2007, Freitas met with appellant and Volkan at their home. Appellant admitted he hit Volkan in the face. Freitas said that was not an acceptable method of discipline in this country and that if appellant left any marks, he would be charged with child abuse. Freitas made appellant and his wife sign a safety plan and told them to attend counseling.
On June 20, 2007, appellant phoned police to report that Volkan had run away about a week earlier. Appellant said he did not call immediately because Volkan ran away frequently.
Omer Tutmaz was appellant’s friend. In July 2007, Tutmaz visited appellant and offered to help him look for Volkan. Appellant and Tutmaz went to a lake that Volkan visited sometimes. Appellant described an earlier incident during which Volkan had pulled down his swim trunks and displayed his bottom to an older man. Appellant was concerned because such conduct is unacceptable in the Turkish culture.
In August 2007, appellant and Tutmaz met while on a business trip. Appellant was upset because he believed friends had betrayed him. He bemoaned the fact that others were not as trustworthy as Tutmaz, and in an effort to prove his fidelity appellant said, “do you know how much I trust you?” “I killed Volkan. This much I trust you.” Tutmaz was shocked by the admission. He did not know what to do. Appellant and Tutmaz both went to their rooms.
Appellant and Tutmaz spoke again the following day. Appellant said he killed Volkan the day he displayed his bottom to the man at the lake. According to appellant, he confronted Volkan about why he was constantly running away. When Volkan refused to answer, appellant put his hands around Volkan’s neck and choked him until “[q]uite a bit of blood” came out of his mouth. Volkan relented and agreed to tell appellant “everything.” Appellant replied, “You had the chance to tell me so long, now there’s blood coming out of your mouth. It’s too late. I’m going to kill you.”
Tutmaz asked appellant why he continued to choke Volkan. Appellant replied it was “already too late.” If he had let Volkan go, he would have to go to jail anyway. Therefore appellant chose “to finish it.” He squeezed Volkan’s neck while Volkan pleaded for mercy. Volkan was unable to struggle because he was so small.
Appellant told Tutmaz that once Volkan was dead, he took his body and buried it in the hills. He blamed Volkan’s death on business associates who had betrayed him.
Tutmaz did not go to the police immediately and tell them what appellant had done. He wanted to give appellant a few days to turn himself in. When appellant did not do so, Tutmaz went to the police on August 16, 2007, and told them appellant killed Volkan.
A detective interviewed appellant and his wife on September 7, 2007. Appellant said Volkan was missing and suggested that the detective contact a homeless man with whom Volkan associated.
The detective interviewed appellant about a month later on October 2, 2007, and again, appellant said Volkan was simply missing. Appellant said any comments Tutmaz may have made to the contrary were caused by business problems he had with Tutmaz’s family.
The detective spoke with appellant again the following day and this time, appellant agreed to take him to Volkan’s body. Appellant and two officers drove about 190 miles to the mountains near Sierraville. Appellant then led them to Volkan’s burial site. Animals had dug up the body.
Based on these facts, an information was filed charging appellant with murder.
The case proceeded to trial where the prosecution presented the evidence we have set forth above. Appellant testified in his own defense and he admitted that he killed Volkan. Appellant said the death occurred the day he saw Volkan display his bottom to the man at the lake. Appellant brought Volkan home and they began to argue. At one point, appellant’s wife went to get some pizza. While she was gone, appellant and Volkan continued to argue. Volkan questioned why appellant had not been there for much of his life. Appellant slapped Volkan in the face. Volkan went to his room. Appellant followed and when Volkan refused to answer his questions, appellant “squeezed his neck.” Volkan agreed to talk. Appellant needed to “calm down” and he went to the living room. Volkan came out a few minutes later and sat next to him. Appellant again asked Volkan what was happening. Volkan replied, “fuck you all. Have you done any fatherhood for me the last 16 years?” Appellant was out of control. He “squeezed [Volkan’s] neck and squeezed his neck and squeezed his neck....” Volkan kicked and struggled and tried to run away, but appellant would not stop. He continued squeezing until Volkan said “father” and then collapsed.
Appellant tried to “wake [Volkan] up.” That did not work, so he carried Volkan to the bathroom and put him in the bathtub. When appellant’s wife came home, he told her “Volkan is gone.”
Appellant called his mother in Turkey and told her what he had done. She told him to bury the body in a proper place. Appellant wrapped Volkan’s body and put it in the trunk of his car. He then drove until he found a spot to bury it. He did not dig a deep hole.
Appellant also presented testimony from a doctor who said appellant’s heart attack had injured his brain. The doctor said appellant suffered from memory loss and had a low tolerance for frustration. A clinical neuropsychologist testified similarly. She said appellant suffered severe brain injury from this heart attack and that such injuries can cause personality alterations and behavioral problems.
In addition, appellant presented a wide array of evidence in an effort to show that Volkan had behavioral problems that had grown worse as he had gotten older. Appellant’s mother testified that Volkan was aggressive and destructive as he was growing up. A clinical psychologist testified that Volkan had an oppositional defiant disorder. Children with that disorder are difficult to parent because they have trouble controlling their behavior. A psychiatrist who treated Volkan agreed he had oppositional defiant disorder. A relative from Turkey testified Volkan was disrespectful and frequently ran away from home. He also said Volkan had tried to attack his wife with a knife. One of appellant’s business associates said Volkan stole things. Volkan’s cousin testified that Volkan smoked, ran away from school, and was disrespectful to his elders.
The jurors considering this evidence convicted appellant of second degree murder.
Appellant filed a motion for new trial based on juror misconduct. The trial court conducted a hearing on appellant’s motion and denied it. The court then sentenced appellant to a term of 15 years to life in prison.
II. DISCUSSION
A. Instructions
The trial court instructed the jurors on the principles of first degree murder, second degree murder, and voluntary manslaughter under a head-of-passion theory using standard instructions. Appellant now contends his conviction must be reversed because the court failed to instruct, sua sponte, on the principles of involuntary manslaughter.
A trial court is obligated to instruct, sua sponte, on all legal theories that find substantial support in the evidence, but not on theories that are unsupported. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A court is only obligated to instruct sua sponte on involuntary manslaughter as a lesser included offense of murder where there is substantial evidence from which a rational trier of fact could find that the lesser offense but not the greater was committed. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588.) There was no such evidence here.
Involuntary manslaughter is defined as a killing that is committed “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Appellant’s actions cannot reasonably be characterized as falling within either of these categories. Appellant admitted that while arguing with Volkan, he lost control. He grabbed Volkan and “squeezed his neck and squeezed his neck and squeezed his neck....” Volkan kicked and struggled and tried to run away, but appellant would not stop. He continued to squeeze until Volkan collapsed. No reasonable juror could construe this conduct as a “lawful act which might produce death in an unlawful manner” or as a “unlawful act, not amounting to a felony....” Indeed, defense counsel conceded at trial that her client was guilty of voluntary manslaughter. Because there was no evidence from which a rational trier of fact could find that the lesser offense but not the greater was committed, the court was not required to instruct on the lesser offense.
The result we reach is fully supported by case law. Our Supreme Court faced a similar issue in People v. Manriquez, supra, 37 Cal.4th 547, where the defendant argued the court erred because it failed to instruct on involuntary manslaughter. Our Supreme Court disagreed explaining its decision as follows: “The killing of Efrem Baldia can only be characterized as having been intentional. The victim suffered two fatal and three nonfatal gunshot wounds inflicted at close range. Even if we were to accept defendant’s statement, made during his hospital interview with Detective Olmedo, that the first shot simply ‘discharged’ when defendant pushed the victim, the autopsy evidence introduced in the testimony given by Dr. Rogers established that defendant thereafter inflicted a second fatal wound when, by defendant’s own admission to Detective Olmedo, he continued shooting the victim as the victim was falling to the ground. Thus, even if defendant unintentionally fired the first shot, the trial court was not required to instruct the jury on involuntary manslaughter in view of the circumstance that defendant intentionally kept firing his weapon, inflicting at least one other fatal wound.” (Id. at p. 588.)
We reach a similar conclusion here. The record demonstrates appellant intentionally strangled Volkan until he collapsed. The trial court was not required to instruct on involuntary manslaughter in view of the fact that appellant intentionally strangled his son to death. (See also People v. Hendricks (1988) 44 Cal.3d 635, 643 [court not required to instruct on involuntary manslaughter even though defendant denied an intent to kill where the defendant shot one victim six times and another victim five times]; People v. Rhodes (1989) 215 Cal.App.3d 470, 476, fn. omitted, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [court did not err when it failed to instruct on involuntary manslaughter because the “killing during the commission of a dangerous felony provides no evidence of an act within the statutory definition of involuntary manslaughter.”]).
None of the arguments appellant makes convince us the trial court erred. Appellant contends the court should have instructed on involuntary manslaughter because he “committed assault and battery on his child in the process of trying to discipline him.” This argument is simply unsupported. Appellant did not just assault or batter Volkan. He strangled him to death. Furthermore, appellant has not cited and we have not found any place in the record where appellant claimed to have been disciplining Volkan. Rather, as appellant admitted a trial, he strangled Volkan because he lost control.
The cases appellant cites that affirm a defendant’s conviction of involuntary manslaughter under various circumstances such as where the defendant killed unintentionally in the commission of a wrongful act not amounting to a felony (see, e.g., People v. Jackson (1962) 202 Cal.App.2d 179, 183), or in cases of child abuse (see, e.g., People v. Villalobos (1962) 208 Cal.App.2d 321, 326), are not persuasive here. As we have stated, no reasonable juror could conclude that appellant committed involuntary manslaughter as that term is statutorily defined. The cases appellant cites are inapposite.
We conclude the court instructed the jurors correctly.
B. New Trial
1. Background
The prospective jurors in this case were required to complete a lengthy 30-page questionnaire. It included 134 questions (many with multiple subparts) and asked the prospective jurors to reveal, in detail, information about their personal background, work history, family life, experience with the legal system, and experience raising children.
Toward the end of the lengthy trial in this case, the prosecutor learned that one of the jurors, No. 5, had been a suspect in cases of child molestation in the 1980s and 1990s. The prosecutor told defense counsel what she had learned. Defense counsel asked the prosecutor to determine if Juror No. 5 had ever been arrested. The prosecutor looked into the matter and replied that Juror No. 5’s only arrest was for being drunk in public.
The prosecutor and defense counsel discussed what they had learned with the trial court. Neither asked that Juror No. 5 be removed and the court took no action in that regard.
After the jurors returned their verdict, appellant filed a motion for new trial based on two types of alleged juror misconduct. First, appellant argued he was entitled to a new trial because Juror No. 5 had lied or concealed information on his jury questionnaire and during voir dire. Second, appellant alleged that two jurors (Nos. 5 & 10) had injected personal information that was not part of the evidence at trial into the deliberations. Because the background and legal principles used to analyze both grounds for new trial differ significantly, we will address them separately.
2. Concealing Information
Appellant’s motion for a new trial based on concealment was supported primarily by a declaration from an investigator who said he spoke with Juror No. 5 after the trial. The investigator stated that Juror No. 5’s responses to several of the questions on the questionnaire were misrepresentations.
The prosecutor opposed appellant’s motion and submitted a declaration from Juror No. 5 in response. He said he answered the questionnaire “to the best of [his] ability” but that he had been overworked recently and was “operating on only two hours of sleep....” Juror No. 5 said he was given the questionnaire late in the day and that he “finished [it] as quickly as [he] could.” He did not write long answers to some of the questions but he did answer “as truthfully as [he] could.”
The trial court conducted a hearing on appellant’s motion. After hearing the arguments of counsel, the court ruled appellant had forfeited the right to argue that Juror No. 5 had committed misconduct by failing to ask that he be replaced. The court explained its ruling on this point as follows:
“[Defense counsel] was clearly on notice as of Friday, February 13th that Juror Number 5 had a significant history as a suspect in child abduction cases. She could have easily learned everything she needed to know about Juror Number 5 and a good deal more by consulting public sources, in fact, by conducting the computer search that [the prosecutor] suggested. The defense had five days to conduct that search before the matter was submitted to the jury. [Defense counsel] made a conscious choice not to move to have Juror Number 5 removed for cause and not to stipulate to his being excused despite it being offered.
“I find this is a perfectly reasonable decision based on the information known to [defense counsel] at the time. I think that any defense lawyer, in fact, any prosecutor who found out that they had a juror who had been falsely accused of abducting children, sued the police for false accusations and won the lawsuit would be an ideal defense juror.”
“[¶]...
“So my conclusion is that the current motion for a new trial based on Juror Number 5 remaining on the jury was waived or forfeited by the defense and that the decision to do so was perfectly reasonable under the circumstances known to [defense counsel].”
The court also addressed the specific allegations of misconduct that appellant had alleged. The court ruled that in most instances, Juror No. 5 had not committed misconduct because the responses on his questionnaire were neither false nor misleading. To the extent Juror No. 5’s responses to a few questions were incorrect or incomplete, appellant was not actually prejudiced by the misconduct identified. Accordingly, the court denied appellant’ motion.
Appellant now contends the trial court erred when it denied his motion for new trial based on Juror No. 5’s alleged misrepresentations.
The first hurdle appellant faces is the one identified by the trial court; whether appellant forfeited the right to raise the argument. There is considerable support for the trial court’s ruling on this point. As the court noted, defense counsel was informed about Juror No. 5’s history during trial and had the opportunity to ask that he be removed. Having failed to do so, a strong argument can be made that appellant forfeited the right to argue that he was prejudiced by Juror No. 5’s alleged misrepresentations. (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589-592.)
However, we need not base our decision on that ground because, as the trial court also ruled, appellant’s argument fails on the merits. A trial court determining whether to grant a new trial based on juror misconduct must go through a three-step process. (People v. Duran (1996) 50 Cal.App.4th 103, 112.) First, the court must determine whether the evidence presented is admissible. (Ibid.) Second, if the court finds the evidence admissible, it must then decide whether such evidence establishes misconduct. (Id. at p. 113.) Third, if the court finds that misconduct did occur, it “must determine whether the misconduct was prejudicial. [Citations.] Once misconduct has been established, prejudice is presumed; reversal is required unless the reviewing court finds, upon examination of the entire record, there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment. [Citations.]” (Ibid.) “There is serious question whether honest voir dire mistakes can ever form the basis for impeachment of a verdict. [Citations.]... [¶] What is clear is that an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s good faith when answering voir dire questions is the most significant indicator that there was no bias. [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 300.)
On appeal, “[w]e 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. [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 582.)
With this background, we turn to the specific instances of misconduct alleged.
Question number 17 asked, “Have you ever been fired, laid off or asked to resign from a job?” Juror No. 5 answered “yes” and said that he had been “[l]aid off several jobs due to lack of work.” The declarations appellant submitted in support of his motion for new trial indicated Juror No. 5’s answer was incomplete because he had in fact been fired on two separate occasions for violating workplace rules. The trial court agreed and ruled that Juror No. 5’s answer was incomplete or misleading.
Question number 26 asked, “Do you know anyone who is a psychologist, psychiatrist, marriage or family therapist or counselor, drug or alcohol counselor, social worker, or other mental health professional? Juror No. 5 answered no. The declarations appellant submitted alleged this was a misrepresentation because appellant had been interviewed several times by a psychologist, Dr. John Philpin, who was writing a book and that appellant knew Dr. Philpin was a psychologist. Juror No. 5 replied that he knew Dr. Philpin was a psychologist, but that he had not had contact with him for many years. Juror No. 5 said that when he read the question, he only considered friends or family members who might have been psychologists or other mental health professionals. The court ruled Juror No. 5’s answer was not intentionally false or misleading and that question number 26 “would not necessarily prompt someone to search their memory for everyone they have ever met through their life for everyone who had once been a psychologist.”
Question numbers 40 and 41 were related. The former asked, “Have you ever taken courses or had special training in any matter related to law enforcement?” The latter asked, “Do you have any particular knowledge of police procedures or methods?” Juror No. 5 answered no to both questions. The declarations appellant submitted alleged these responses were false because Juror No. 5 told Dr. Philpin that he had read police forensic materials and that he hoped to get a job in law enforcement or with the fire department. Juror No. 5 replied that in 1974 he had taken a two-day course about what a firefighter should do when he comes across a crime scene, and between 15-20 years ago, he read a book about homicide investigations. Juror No. 5 did not believe that either experience gave him any particular knowledge of police procedures. The trial court ruled there was no misconduct on either ground stating, “training as a fire fighter is not training in law enforcement [and] reading a book about homicide investigations is not specialized training or knowledge any more than the common person who likes to read mystery novels.”
Question number 61 asked, “Have any of your family members or close friends ever been accused of, charged with, or convicted of any crime... ?” Juror No. 5 answered no. Appellant alleged this was misleading because Juror No. 5 had been interviewed numerous times concerning his possible involvement in child abduction cases. The court ruled Juror No. 5’s response was not false or misleading because the question did not ask whether he (i.e., Juror No. 5) had been the subject of any criminal investigation.
Question number 62 asked, “Have you ever been a witness or given a statement in any type of legal proceeding?” Juror No. 5 answered no. Appellant argued that response was false because Juror No. 5 had been “a party and witness” in his own civil matter suing the police. Juror No. 5 replied that his case had settled before trial and he did not consider a deposition that he provided to be a “legal proceeding.” The trial court accepted Juror No. 5’s explanation stating that it would not be “unreasonable that a nonlawyer would consider a legal proceeding to be something that happens in court.”
Question number 74 asked, “Have you ever had any experiences with law enforcement, a prosecutor, a criminal defense attorney, a judge, or the court system generally which you would characterize as unfair or unpleasant?” Juror No. 5 answered no. The declarations appellant submitted alleged this was false because Juror No. 5 had been the subject of extensive investigations that he found to be “harassing, unfair and unpleasant.” Juror No. 5 indicated that his experience with the criminal justice system made him more impartial, not less, although he conceded that “[l]ooking back on this question” he made “a mistake.” He blamed his mistake on his being “tired” and reading the question too quickly. The trial court ruled Juror No. 5’s response was incomplete and misleading. But the court also ruled the mistake was not intentional but was caused by Juror No. 5 trying to fill out his questionnaire too quickly.
Question number 86 noted that the victim in the case was a teenaged boy and asked, “Is there anything about this type of a case that causes you to question whether you can give this defendant a fair trial... ?” Juror No. 5 answered no. The evidence appellant submitted suggested this was misleading because Juror No. 5 in fact had “an intense interest and emotional investment in the child victim offenses of which he was a suspect....” Juror No. 5 replied that he does not consider himself to be biased. The court believed Juror No. 5 and ruled his response to the question was not false or misleading.
Question number 102 asked, “Have you ever had any previous experience as a juror?” Juror No. 5 answered no. Appellant argued this was false and misleading because appellant had been a juror previously in a misdemeanor driving under the influence case. Juror No. 5 replied that he had served on a jury for a brief period of time in the late 70s or early 80s and that he simply forgot to mention it. The trial court found this explanation to be credible stating that “it is very common for jurors to forget about a brief jury experience that long ago.”
Finally, question number 132 asked, “[I]s there anything about you that this questionnaire does not address that you think might be important for the attorneys and the judge to know?” Juror No. 5 answered no. Appellant alleged this was false and that Juror No. 5 told a defense investigator that he knew some of his history might have been of interest to the defense, but that he would not volunteer it if it was not relevant. Juror No. 5 replied that he did not mention the allegations that had been made against him because in his case, “the system... worked.” He believed his experiences had made him more impartial, not less. The trial court again credited Juror No. 5’s statement noting that from Juror No. 5’s perspective, “he was not a biased juror” and that his prior experiences were not relevant.
Applying the standards we have set forth above, we conclude the trial court correctly denied appellant’s motion for new trial. The court ruled that in most of the instances identified (see, e.g., question nos. 40, 41, 61, 62, 86, & 132), Juror No. 5’s responses were not false or misleading. The court’s factual findings on this point are supported by substantial evidence and are binding on appeal. (People v. Nesler, supra, 16 Cal.4th at p. 582.) The court ruled that in some instances (see, e.g., question nos. 26 & 102), Juror No.’s 5 were unintentionally misleading and that in two instances (question nos. 17 & 74), Juror No. 5 committed misconduct by providing misleading answers. Therefore, a presumption of prejudice arises. This court must then examine the entire record to determine whether there is a “substantial likelihood that any juror was improperly influenced to the defendant’s detriment.” (People v. Duran, supra, 50 Cal.App.4th at p. 113.) We conclude the answer is no.
As the trial court explained when ruling on this issue, “I do not find it was substantially likely that Juror Number 5 was actually biased against the defendant. In my view if Juror Number 5 had disclosed everything we know now about his history prior to this trial during the voir dire process that the attorneys would reasonably conclude, if anything, that Juror Number 5 was likely to be biased in favor of Mr. Kayik rather than against him. Therefore, although I find that Juror Number 5 committed misconduct by failing to fully and accurately answer two out of 134 questions on the questionnaire, I find that Juror Number 5 was not actually prejudiced against the defendant or that there was a substantial likelihood that he was prejudiced against the defendant. In fact, I find that had all of the information been disclosed that the conclusion would have been that Juror Number 5 was particularly susceptible to the argument that the defendant was falsely accused since that was his experience. And I think the best indication of this is the fact that defense counsel, once the information was known in substance, declined to request or stipulate that Juror Number 5 be removed.”
We agree with the trial court’s analysis and adopt it as our own. On independent review, we conclude appellant was not actually prejudiced by the misconduct he has identified. The court did not err when it denied appellant’s motion for new trial on this ground.
3. Outside Information
Appellant also argued he was entitled to a new trial because two of the jurors, Nos. 5 and 10, injected information that was not part of the evidence at trial into the deliberations. Specifically, Juror No. 5 “discussed his personal experience with being nearly choked to death....” Juror No. 5 said that experience “convinced him that it would take several minutes to kill a person by this method and that formed his opinion of Mr. Kayik’s mental state.” Juror No. 10 stated that “she had suffered a brain tumor that was surgically removed, and suffered no brain impairment or memory loss.”
The trial court declined to grant a new trial on this ground ruling that the conduct identified was neither improper nor prejudicial. Appellant now challenges this ruling arguing the trial court erred.
A jury’s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters. (People v. Nesler, supra, 16 Cal.4th at p. 578.) Nevertheless, jurors may rely on their own experiences in evaluating the testimony of the witnesses. “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, however, must be tolerated.... [Otherwise, ] few verdicts would be proof against challenge.” (People v. Marshall (1990) 50 Cal.3d 907, 950.)
Our Supreme Court applied these principles when faced with similar facts in People v. Leonard (2007) 40 Cal.4th 1370. There, a juror relied on his own personal experience with firearms to form an opinion about the accuracy of the murder weapon and mentioned his experience to the other jurors during deliberations. (Id. at p. 1414.) Our Supreme Court characterized the juror’s actions as “a normal part of jury deliberations and... not misconduct.” (Ibid.)
We reach the same conclusion here. The evidence appellant submitted that Juror Nos. 5 and 10 did nothing more than rely on their own personal experience to help them evaluate the evidence that had been presented. This is a normal part of jury deliberations and was not misconduct.
Furthermore, even if we were to assume, arguendo, that the conduct appellant has identified was misconduct, we would not reverse. A juror’s misconduct raises a presumption of prejudice that may be rebutted by proof no prejudice actually resulted. (In re Malone (1986) 12 Cal.4th 935, 963.) The presumption of prejudice was rebutted here.
Juror No. 5 stated that his own experience with being nearly choked to death convinced him that it would take several minutes for a person to die by this method. This statement is consistent withthe testimony provided by a forensic pathologist, Dr. Arnold Josselson, who testified at trial that it “takes several minutes of sustained pressure in order to kill somebody.” Because Juror No. 5’s statement was consistent with the evidence presented at trial “[i]t was... not inherently likely to have exercised an improper influence on any of the jurors.” (In re Malone, supra, 12 Cal.4th at p. 964.)
The statement made by Juror No. 10 was not prejudicial for a different reason. Juror No. 10 said she had undergone brain surgery and she described how the surgery affected her. Appellant never had brain surgery. He had a heart attack. As the trial court observed, Juror No. 10’s unrelated medical experience was unlikely to have much effect.
We conclude the misconduct indentified was not inherently and substantially likely to have influenced a juror. (In re Malone, supra, 12 Cal.4th at p. 963.) There was no prejudicial error.
C. Evidentiary Issues
1. Prior Bad Acts
Prior to trial, the prosecutor filed a motion asking that he be permitted to introduce evidence of appellant’s prior acts of misconduct. As is relevant here, the prosecutor sought to introduce evidence that (1) appellant admitted to a social worker that he had hit Volkan in the face, (2) appellant blamed Volkan for his wife’s death, (3) Volkan told others that he was afraid of appellant and that appellant hit and threatened him, (4) that other persons saw appellant chase Volkan.
The trial court ruled appellant’s admission to the social worker and the fact that appellant blamed Volkan for his wife’s death were admissible on the issue of motive. Evidence that Volkan was afraid of appellant would only be admitted if appellant first presented evidence to prove that Volkan intentionally provoked his father. Evidence of Volkan’s fear would then be admitted as rebuttal.
At trial, a social worker testified that appellant told him he hit Volkan in the face. The social worker told appellant such conduct was unacceptable and that if appellant left any marks, he would be charged with child abuse. A teacher testified that appellant blamed Volkan for his wife’s accidental death. Then, after appellant presented an extensive array of evidence to prove that Volkan was a difficult child who had behavioral problems, the court allowed the prosecution to present evidence in rebuttal that Volkan was afraid of appellant. Lawrence Kamp, a man who befriended Volkan, testified that Volkan was afraid his father was going to kill him. Kamp said Volkan showed him injuries that were inflicted when his father hit him in the mouth. Another of Volkan’s friends, Scott Swan, testified that Volkan was “terrified” of his father. Finally, the parties stipulated that Joseph Wing would testify that he saw appellant chasing Volkan and yelling at him in Turkish.
Appellant now contends the trial court erred when it admitted evidence of his prior misconduct.
Evidence Code section 1101, subdivision (a) states that character evidence, including specific instances of prior misconduct, is generally inadmissible to show disposition to commit a crime. But subdivision (b) provides an exception when the misconduct is relevant to show some other fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. (See People v. Ewoldt (1994) 7 Cal.4th 380, 393.) “There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 371.)
We find no abuse here. It is well established that prior misconduct can be introduced to prove motive (see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 862), and evidence that appellant hit Volkan before and had been warned that if he did so again he could be charged with child abuse, was admissible to show why appellant chose to kill his son. Indeed, when Tutmaz asked appellant why he did not stop strangling Volkan appellant replied that it was “already too late” and that if he had let Volkan go, he would have to go to jail anyway. Therefore, appellant chose “to finish it.” Evidence that appellant hit Volkan before and had been warned he could be sent to jail if he did so again, plainly was admissible to show why appellant chose to kill his son rather than let him go.
Evidence that appellant blamed Volkan for his mother’s death was admissible for the same reason: as motive. The prosecutor reasonably could argue that one reason appellant killed Volkan was anger over Volkan’s part in his wife’s death.
The primary case upon which appellant relies, People v. Alcala (1984) 36 Cal.3d 604, does not require a different conclusion. The issue in Alcala was whether evidence of past crimes was admissible to show that the defendant feared punishment as a repeat offender. (Id. at pp. 634-635.) Here, appellant had not been convicted of any prior crime nor was there any evidence that he feared being punished as a repeat offender. Alcala is not controlling here.
We also conclude the court did not err when it admitted evidence that appellant hit Volkan on other occasions and that Volkan was afraid of appellant. As we have noted, the court only allowed that evidence after appellant had presented testimony from several witnesses in an effort to prove that Volkan was a difficult child who had had provoked his father to act violently. Thus, the evidence in question was not introduced to show appellant had a disposition to commit the charged crime. It was introduced to rebut the evidence appellant had presented in his defense. The evidence was properly admitted for that reason. (Cf. People v. Mitcham (1992) 1 Cal.4th 1027, 1072.) We see no error.
We also conclude the court did not err when it declined to exclude the evidence under Evidence Code section 352. As the trial court ruled, the evidence of motive was strongly relevant. The rebuttal evidence was directly relevant to rebut the evidence appellant had presented in his defense case. In neither case did the court abuse its discretion when it declined to exclude the evidence under Evidence Code section 352.
2. Rebuttal Evidence
Appellant contends the trial court erred when it admitted the rebuttal evidence we have discussed above. According to appellant, that evidence was both irrelevant, and was inadmissible under the hearsay rule.
The evidence clearly was relevant. As we just explained, it was admitted to rebut the evidence appellant had presented in his defense. As for hearsay, appellant has not clearly identified the precise evidence to which he objects, but it appears he is primarily challenging the testimony provided by appellant’s friend, Lawrence Kamp, who said Volkan told him appellant had hit him previously. However, the court expressly told the jurors that Volkan’s out-of-court statements were not being admitted for their truth: “The testimony that Mr. Kamp... has given about Volkan’s statement’s to Mr. Kamp, the statements are hearsay because they were made by Volkan outside of Court, and therefore, they are not admissible for the truth of the matters asserted by Volkan to Mr. Kamp.... [¶]... For example, Volkan saying ‘my father hit me’ is not admissible to prove that his father hit him. The statements are admissible only as to the extent they reflect Volkan’s state of mind; for example, whether or not he feared his father, to the extent that helps you evaluate his subsequent conduct. [¶] So... it’s important that you limit your consideration of the testimony about Volkan’s statements to that purpose only.”
Because Kamp’s testimony was not admitted for its truth, it was not hearsay.
Furthermore, any possible error on this ground was harmless. The rebuttal evidence in question was brief and covered less than 20 pages of a more than 1, 700-page transcript. The conduct identified was far less serious than the conduct appellant admitted to in open court and was not particularly harmful. We conclude it is not reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any possible error on this ground was harmless.
D. Cumulative Error
Appellant argues that even if the individual errors he has alleged were not prejudicial, when they are considered cumulatively, they require a reversal of the judgment. We have rejected most of appellant’s arguments. Considered cumulatively, the few errors we have identified do not require reversal. (Cf. People v. Leonard, supra, 40 Cal.4th at p. 1431.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Bruiniers, J.