Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF134860. Ronn Couillard, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Anthony Lopez was convicted of four counts of forcing his stepdaughter, J.S., to orally copulate him, in violation of Penal Code section 288a, subdivision (c). Lopez contends the trial court erred in denying his motion for a new trial. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
J.S.’s mother married Lopez when J.S. was approximately nine years old. Lopez began molesting J.S. when she was a sophomore in high school. J.S. was molested approximately 30 times between 2002 and 2004 at her house and while she and Lopez stayed in motels during softball tournaments.
At first, Lopez began entering the bathroom for no apparent reason while J.S. was showering. A few weeks later, Lopez was in J.S.’s bedroom when he called her into the bedroom. Lopez was lying on the bed and told J.S. to sit next to him. Lopez began rubbing J.S.’s arms and legs while talking to her. Lopez took off his pants and placed J.S.’s hand on his penis and forced her to masturbate him until he ejaculated. Lopez became more affectionate towards J.S. after these incidents.
J.S. did not know why she was being molested by Lopez. She did not tell anyone because she was scared and embarrassed. In the past, Lopez had hit her and grabbed her so hard on the arms that he left bruises. Whenever her mother asked about the bruises, J.S. told her they were from playing softball.
On one occasion Lopez took J.S. into his bedroom and made her remove her pants. Lopez put J.S. on the bed, held her legs, and orally copulated her. Lopez told her to keep her mouth shut, and J.S. complied. J.S. weighed about 110 pounds at the time and, although she was strong, Lopez could overpower her.
On another occasion J.S. followed Lopez into his bedroom to ask a question. Lopez threw her down on the bed, lay next to her and began rubbing her back. Lopez took off his pants and made J.S. remove her shirt. Lopez rubbed J.S.’s breasts and then he grabbed her hair and forced her to orally copulate him. J.S. vomited on the floor. J.S. slipped and fell on her vomit as she tried to leave after Lopez ejaculated. Lopez told J.S. to stop crying and to clean up the mess she had made on the floor. J.S. kept crying and did not know what to do. J.S. did not call anyone and report the molestation because she was afraid she would get into trouble.
J.S., who excelled at softball, played on a traveling softball team while in high school. Lopez always would accompany her on trips, while her mother and sister also came along occasionally. Lopez and J.S. often would not stay at the same motel as other members of the team to save money. On one occasion, after a softball game, Lopez again forced J.S. to orally copulate him. On another occasion, Lopez told J.S. to get his pills while they were staying in a motel room for a softball tournament. Lopez was referring to his Viagra pills. Lopez took a pill and later forced J.S. to orally copulate him again.
The molestations occurred more frequently while at home. The other incidents were the same type of conduct and occurred either in her bedroom or in her parents’ bedroom. No one saw any of the molestations.
J.S. had to ask Lopez for permission to do everything, including taking a shower or eating. If she did not ask permission, Lopez would yell at her or ground her. J.S.’s mother was working most of the time. Lopez was “always at home.” J.S. was required to be home shortly after school. If she was late, Lopez would yell at her. Lopez also retained the right to approve any clothes purchases J.S. wanted to make and occasionally would pick out clothes for her.
Lopez attended all of J.S.’s softball practices and all of her games. He would yell at her during practice. On some occasions the comments would be designed to improve her game, and on other occasions J.S. felt as if Lopez was just being mean.
Lopez would not allow J.S. to date while she was in high school. She had a boyfriend while in high school named J.J. She first met J.J. when she was in the seventh grade and he was a freshman or sophomore in high school. J.J. was approximately two and one-half years older than J.S. She met him through his sister, with whom she played softball. Lopez knew that J.S. hung out with J.J., but forbade her from kissing J.J. When Lopez found out she had kissed J.J., he forbade her from seeing J.J. anymore. J.J. wrote a letter to her parents insisting he be allowed to continue seeing her. After the letter, her mother also forbade her from seeing J.J.
When J.S. started high school, she started seeing J.J. again. Neither Lopez nor J.S.’s mother knew that she was seeing him. She asked her friends not to tell Lopez she was seeing J.J.
Various colleges recruited J.S. to play softball. One was Mount Marty College in South Dakota. J.S. met with the coach, Clint Frederiksen. She told Frederiksen that she had a boyfriend and asked him not to tell her parents because she was not supposed to have one. J.J. was planning to move to South Dakota to be with her. J.S. asked Frederiksen if there were any schools nearby that were affordable for J.J. Frederiksen provided her with some information on other nearby colleges.
Problems developed when Frederiksen told J.S. her social security number and other information was not correct on some of the admission forms she submitted to the university. Eventually, Frederiksen lost interest in recruiting her and stopped responding to her e-mails.
On May 27, 2004, J.S. was at school when she received a phone call from Lopez. Lopez was upset. He said he had received a letter from Frederiksen stating that she was dating J.J. Lopez told her she had to come home immediately because she was in trouble. Lopez called her a whore. She called her mother, L.L., and told her she had been dating J.J. and Lopez was angry at her because he had learned of her relationship with J.J. She said she did not want to go home because she was scared. L.L. told her to stay at school until she (L.L.) could get home.
When J.S. arrived at home, L.L. and Lopez were present. Lopez started yelling at her, calling her a whore and stating she broke his rule because she was not supposed to be dating. Lopez told her she was not going to be able to live in the house anymore. L.L. said she did not have to move out. In the midst of this argument, J.S. told L.L. that Lopez had been making her do things she did not want to do. She exposed Lopez because he kept yelling that what she was doing was wrong, and she knew that what Lopez had been doing to her was wrong.
L.L. started crying and told Lopez he would have to leave. Lopez packed his bags and, as he was leaving, asked that he not be arrested until after J.S. graduated. He also stated that it was not J.S.’s fault. Lopez called his father to pick him up.
L.L. took J.S.’s cell phone after Lopez left. J.S. did not use that cell phone again. After Lopez left, J.S. and her mother spoke. The two then went to the police station. Lopez and his father were at the police station when J.S. and L.L. arrived.
L.L. testified that she met Lopez at the business at which they both worked. They married in 1996. Initially, they had a good relationship. After Lopez stopped working because of various illnesses and disabilities, however, L.L. became the sole source of income for the family and had to work a lot of hours. The relationship started to become more difficult. Occasionally they were intimate, and Lopez would sometimes take a Viagra pill before they had intercourse. Lopez was able to achieve an erection.
J.S. and Lopez initially had a good relationship. Lopez started treating her differently around her sophomore year in high school. It appeared that Lopez did not want her talking to anyone. J.S. denied anything was happening between Lopez and her when L.L. asked. L.L. inquired because it appeared to her from comments that were made and looks Lopez would direct at J.S. that there might be something happening between the two. It appeared to L.L. that Lopez was totally focused on J.S. L.L. was suspicious that something might be going on, but both Lopez and J.S. denied it.
One morning, L.L. observed Lopez lying next to J.S. in her bed. J.S. appeared to be asleep, and Lopez was rubbing her back. L.L. yelled at Lopez, who explained that was how he woke J.S. in the mornings. L.L. told Lopez to stop such behavior.
L.L. also found Lopez’s Viagra medication in his traveling bag when he returned from one of J.S.’s softball tournaments. When J.S. or L.L. suggested that J.S. go to a tournament without Lopez, he responded that her softball was all he had left (referring to his various illnesses and disabilities).
J.S. was not prohibited from dating in high school, but L.L. preferred that she did not so that she could focus on her education. L.L. did not recall hearing Lopez tell J.S. she could not have a boyfriend. L.L. would not have been upset if J.S. had a boyfriend in high school. She did not know that J.S. was seeing J.J. while in high school.
On May 27, 2004, L.L. was at work when she received a phone call from J.S., who was very upset, almost hysterical. She stated that Lopez learned she was dating J.J., and she was afraid Lopez would hurt her. L.L. told J.S. not to worry about it, and they would discuss it when she got home. She told J.S. not to go home and that she would be home in a little while. A short while later L.L. received a phone call from Lopez. Lopez was “ranting and raving,” calling J.J. a “fucker,” “faggot,” and “asshole,” and calling J.S. a “whore.” Lopez stated that J.S. would have to move out of the house. Lopez did not say anything about J.S.’s scholarship to Mount Marty.
The two phone calls caused L.L. to be alarmed. J.S. was not at home when L.L. arrived. Lopez was pacing and continued to rant and rave, calling J.S. and J.J. names. He was very angry because J.S. was dating J.J.
When J.S. arrived a short while later, Lopez began questioning her about J.J. and continued calling both of them names. Lopez ordered her out of the house. L.L. did not understand why Lopez was so angry and was trying to discover the cause of the anger.
L.L. did tell J.S. that if she was going to continue to lie, then it would be better if she moved out when she turned 18. L.L. did not say, however, that J.S. had to leave the house immediately.
At this time J.S. stood up and said that Lopez should tell L.L. what he had been doing. L.L. did not know to what J.S. was referring, so she told her to just say it. J.S. stated that Lopez had been forcing her to do sexual things. Lopez sort of laughed. L.L. told him to leave, and Lopez got up and walked to the back of the house.
L.L. was in shock. J.S. was sitting on the couch crying. Lopez packed his clothes. Before he left, Lopez came into the living room and told L.L., “Don’t blame [J.S.], it’s not her fault.” L.L. told Lopez she was going to have him arrested. Lopez asked her to wait until after J.S. graduated from high school. L.L. refused the request. Lopez never denied the allegation made by J.S.
Lopez gave L.L. his cell phone before he left. Lopez’s father and J.S. also had cell phones. L.L. asked J.S. for her cell phone after Lopez left because she did not want Lopez calling her. L.L. put the cell phone in her purse and then took J.S. to the police station, along with her youngest daughter. L.L. did not return the cell phone to J.S., nor did she allow J.S. to take a cell phone out of her purse.
Lopez was already at the police station when L.L. and J.S. arrived. L.L. was uncomfortable sitting in the same area as Lopez, so she asked if she could sit somewhere else. While they were waiting, the only time L.L. left J.S. was when the interviewing officer asked her to leave for a short while.
L.L. received a letter from J.J. when he and J.S. first started seeing each other. The letter was very nasty and asserted that he and J.S. could do whatever they chose. The letter also called L.L. names. As a result, L.L. did not care for J.J.
J.S.’s high school softball coach for her sophomore, junior and senior seasons, Lance Wallace, confirmed that Lopez was “pretty tough” on her, and that he was the only parent who attended almost every practice and game. Her high school softball coach during her freshman year, Stacy Hanson, confirmed that Lopez was at every practice and would interfere with the team. She eventually closed the practices to parents because of Lopez. Lopez would still attend practices, but observed from a distance.
J.J. confirmed that he and J.S. had a boyfriend/girlfriend relationship before she entered high school, which resumed when she was approximately a junior in high school. The two kept their relationship secret from J.S.’s parents when she was in high school because they would not approve of the relationship. He described Lopez as very hard on J.S. during softball games and practices. J.S. stated she was afraid of Lopez.
J.S. did not tell J.J. that Lopez was molesting her until after she graduated from high school. She was crying hysterically when she disclosed the molestations. J.J. also thought that J.S. was an accomplished liar because of the need to keep her relationship with him secret.
Anthony Urquiza, Ph.D., is a psychologist and professor at the UC Davis Medical Center in Sacramento. His testimony was limited to explaining the Child Sexual Abuse Accommodation Syndrome which describes characteristics common to children who have been abused sexually. The syndrome consists of five parts: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) retraction.
Lopez presented numerous witnesses in his defense. Luis Velosa, M.D., is a psychiatrist who treats patients and testifies as an expert witness. Lopez has been his patient since 2001. Lopez initially was suffering from severe depression and had a medical diagnosis that included fibromyalgia and diabetes. After about a year of treatment, Velosa concluded that Lopez was bipolar and adjusted his medications. Lopez began improving slowly. Lopez reported having problems with his sexual drive. Some of the medications Lopez was taking could cause impairment of his sexual needs.
Andrea Espinosa, M.D., began treating Lopez at the end of December 2003. His diagnosis included diabetes, peripheral neuropathy, hypertension, and fibromyalgia. He was taking medication for each of these conditions. Each of his conditions, as well as the medications, might cause sexual dysfunction.
Lee Coleman is a medical doctor specializing in adult and child psychiatry. Coleman testified that the Child Sexual Abuse Accommodation Syndrome is useless in attempting to determine whether or not someone has been abused sexually. He admitted that the various factors suggested by the theory could exist in a child that had been abused, but they could also exist if a child had not been abused. Coleman also criticized the interviewing techniques of the investigating officers, essentially opining that the officers were incompetent.
Frederiksen, who in 2004 was the softball coach at Mount Marty College in South Dakota, testified that he offered J.S. a softball scholarship to Mount Marty, but eventually rescinded the offer. He did this because J.S. told him she had a boyfriend and asked him not to tell her parents of this fact, and because she had provided him with an incorrect social security number. This was the only time Frederiksen ever withdrew a scholarship offer.
Lopez testified in his own defense. He described the diseases with which he had been diagnosed. He stated that in 2002 he developed a condition that ultimately required a circumcision. In the year prior to the operation, there were times he was not able to obtain an erection because of the pain. The operation was performed on August 16, 2002. Lopez was instructed to refrain from any sexual activities for two months after the operation.
Lopez stated his relationship with L.L. was not very good in the time period from 2001-2003 because he could not achieve an erection on a regular basis. It got to the point that Lopez was not able to achieve an erection without using Viagra. Lopez claimed that even with Viagra, he was able to achieve an erection only one out of every five attempts.
He described himself as a loving and caring father and husband, considering his physical disabilities. He denied that J.S. was afraid of him. He claimed the incident when L.L. saw him waking J.S. in the morning occurred when J.S. grabbed him around the neck after he woke her and he fell onto the bed. He denied that L.L. ever spoke to him about the way he looked at J.S. He also denied telling J.S. that she could not date in high school. According to Lopez, J.S. had a lot of freedom, as long as her homework was done.
He admitted that when he learned that J.S. was not going to Mount Marty College, he became upset, but he denied that he screamed, ranted, raved, or swore. He claimed he told J.S. to come home because he had found out she had rejected her last scholarship offer, and he had learned she had been dating J.J. He also admitted calling L.L. and asking her to come home right after work to resolve this matter. When both parties arrived, Lopez testified they calmly discussed the situation. He also claimed that he told J.S. that if she was going to continue to lie, she should move out when she turned 18.
J.S. was the one who was being emotional and confrontational during this discussion. After both Lopez and L.L. told her she could move out when she turned 18, J.S. got up and said she was going to tell L.L. what she and Lopez had been doing together. Lopez was shocked and told J.S. to say whatever she had to say because he had no idea to what she was referring. J.S. said something to the effect that Lopez had been making her lick him. L.L.’s only comment was “Bye.” He stated it was not a good time for him to try and speak with L.L. because she appeared to be very angry.
Lopez did not say anything to J.S. because he was trying to understand why she would lie about him like that. J.S. began crying and then made a comment about it being her fault. L.L. began yelling at her, so J.S. just got quiet. L.L. told J.S. that it was not her fault. Lopez told L.L. to leave J.S. alone.
Lopez was very sad because he could not understand why J.S. would make up lies about him. He denied ever touching J.S. in a sexual way. Lopez concluded that J.S. made the accusation because she was backed into a corner and accusing Lopez of sexually molesting her was the only way to avoid getting into trouble.
Lopez packed his clothes and called his father with the intention of coming back after a few days. He used the house phone to call his father. When his father arrived, Lopez began moving his things to his father’s vehicle. At that time he asked L.L. if she was going to report J.S.’s accusations to the police. Lopez decided that he would wait for L.L. to calm down before trying to talk to her.
Lopez admitted that he told L.L. not to blame J.S. because it was not her fault. He claimed the statement was made when L.L. was yelling at J.S., and he was referring to his possibly having put too much pressure on J.S.
Lopez and his father traveled directly to the police station and waited for L.L. and J.S. While they waited at the police station, Lopez’s father received a phone call from J.S. When Lopez was given the phone, J.S. told him he was now out of her life and she could do whatever she wanted.
Regarding L.L.’s claim that Lopez took a bottle of Viagra to a softball tournament, Lopez claimed it was a bottle of L-Arginine that he used to try to lose weight. He denied ever hitting J.S. after she started high school and denied ever threatening her.
The information, as amended, charged Lopez with four counts of oral copulation by force with a person under the age of 18, in violation of section 288a, subdivision (c). The jury found Lopez guilty as charged. Lopez moved for a new trial, alleging juror misconduct and challenging the sufficiency of the evidence. The trial court denied the motion and sentenced Lopez to the midterm of six years on count 1, plus two consecutive years for each additional count, for a total term of 12 years in state prison.
DISCUSSION
Lopez contends the trial court erred in denying his motion for a new trial because both grounds demonstrated the motion should have been granted. Section 1181 grants to a defendant convicted of criminal charges nine grounds on which he or she may move for a new trial. Lopez relies primarily on grounds three (juror misconduct) and six (verdict not supported by sufficient evidence).
Subdivision 3 of section 1181 states: “When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented.”
Subdivision 6 of section 1181 states: “When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.”
I. Jury Misconduct
The parties agree with the process we must undertake to evaluate Lopez’s claims of misconduct. The required three-step process was described by this court some 12 years ago.
“Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.] Declarations of jurors may be used to show that a juror concealed bias or other reason for disqualification by providing false answers during voir dire. [Citations.] When considering these declarations, the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150.… This statute has thus been found to allow consideration of evidence of ‘“overt acts”—that is, such statements, conduct, conditions, or events as are “open to sight, hearing, and the other senses and thus subject to corroboration” .…’ [Citations.] As a result, Evidence Code section 1150 may be violated ‘not only by the admission of jurors’ testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.’ [Citation.]
“Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. [Citations.] The trial court may conduct an evidentiary hearing to determine the truth of the allegations set out in the declarations. [Citations.] ‘The defendant is not entitled to such a hearing as a matter of right; the trial court has discretion to hold such a hearing.’ [Citation.] ‘The hearing should not be used as a “fishing expedition” to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even [then], an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’ [Citations.]
“Finally, if misconduct is found to have occurred, the court 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.]
“The trial court’s determination on a motion for new trial ‘“‘rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’”’ [Citation.]” (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)
The only evidence submitted by Lopez to support his motion was a declaration signed by one of the jurors (hereafter the declaration). The first step in our analysis, therefore, is to determine what part of the declaration, if any, is admissible. After discussing the admissibility of the various portions of the declaration, we will discuss whether the allegation demonstrates misconduct.
The first paragraph of the declaration merely identifies the declarant as one of the jurors in Lopez’s trial. There does not appear to be any dispute that the declarant served as a juror at the trial, and this paragraph appears to be admissible.
The second paragraph describes a vote on guilt that was taken approximately 10 minutes after the jury began deliberations. While the paragraph appears merely to describe the process that occurred, it is not relevant to any issue on appeal, nor could it support a claim of jury misconduct.
The third paragraph accuses “several” jurors of discussing information outside the record during deliberations. The declarant does not identify any specific information that allegedly was discussed in this paragraph. Accordingly, this vague reference does not support an assertion of misconduct.
The fifth paragraph accuses Juror No. 6 of discussing during deliberations an incident where a relative was either a victim of molestation or was accused of molesting someone. While the allegation is admissible, it is so vague and remote that it does not provide any grounds for juror misconduct. We cannot tell from the declaration (1) whether the relative is closely related or a fourth cousin the juror met only one time, (2) when this alleged incident occurred, (3) what happened, or (4) the context of the discussion. This statement cannot support a claim of juror misconduct.
The declarant next accuses one or more of the jurors of stating that a specific defense expert “looked like he smoked pot.” While the statement may be admissible, it is not evidence that any juror considered information not contained in the record. According to the declaration, the jurors did not say they had knowledge that the expert smoked marijuana. Instead, the jurors were, at most, making a colorful comment on their perception of the expert’s credibility. It is the duty of jurors to assess the credibility of the witnesses who are testifying before them. This statement will not support a claim of misconduct.
In paragraph six, the declarant claims he or she was shocked by these disclosures and comments. Obviously, the declarant’s personal view of the alleged comments will not support a claim of misconduct.
In paragraph seven the declarant states that Juror No. 4 explained some personal experiences regarding his work with Lopez’s father. The declarant claims to be unable to recall the specific statements. Both parties agree that one juror, presumably Juror No. 4, disclosed during voir dire that he or she had worked with Lopez’s father in the past. Accordingly, this is not a case where a juror failed to disclose a potential basis for bias. Instead, we have a vague recollection about what could be a completely innocuous remark. No grounds for misconduct appear.
Next are various comments made about the witnesses. One juror allegedly described L.L. as “dysfunctional,” and described J.S. as being “young and smart.” A comment also was made by a juror that “anyone can go out and get credentials to be a psychologist.” Again, while admissible, these comments demonstrate nothing more than observations made by jurors during trial that may be considered when judging a witness’s credibility. They certainly do not constitute misconduct. Moreover, the declarant’s belief that “these comments were based on [the jurors’] personal experiences” is devoid of any evidentiary value. A witness may testify only to matters about which he or she has personal knowledge. (Evid. Code, § 702.) The declarant, by stating that he or she believed the comments were based on personal experience, affirmatively demonstrated a lack of personal knowledge. It is much more likely that the comments were the result of having observed the various witnesses testifying.
In paragraphs eight and nine of the declaration, the declarant describes the votes for guilt, a tense atmosphere in the jury room, some jurors exhibiting impatience with the process, and two jurors threatening to resolve their differences with fisticuffs outside the jury deliberation room. These paragraphs simply describe the deliberation process and are inadmissible pursuant to the provisions of Evidence Code section 1150.
Next, in paragraph 10, the declarant accuses some of the jurors of disregarding the “legal definition” of “reasonable doubt” provided by the trial court, instead using “their own interpretation as to what they thought it meant.” While the declarant couches his statement in terms of some jurors disregarding jury instructions, a close reading of the statement reveals much less. The facts provided by the declarant are (1) the trial court defined the term “beyond a reasonable doubt,” (2) the jurors discussed the concept, and (3) “several jurors” interpreted the instruction using their own words in the course of deliberations. The third fact does not demonstrate misconduct, but instead is an attempt by the declarant to describe the jurors’ mental processes. This statement is not admissible. (Evid. Code, § 1150.)
Paragraph 11 once again does nothing more than describe the deliberation process and suggests that the declarant felt pressured to change his or her vote to guilty. This paragraph is inadmissible. (Evid. Code, § 1150.)
In paragraphs 12, 13, and 14, the declarant states that he or she (1) now believes the prosecution did not prove Lopez was guilty beyond a reasonable doubt, (2) feels both J.S. and L.L. were not believable, (3) finds Lopez’s testimony was credible, and (4) felt pressured to vote guilty and did so to avoid feeling alienated. These comments are not relevant to the issue of whether any juror committed misconduct, nor are they admissible. (Evid. Code, § 1150.)
The above discussion omitted a single allegation that is contained in paragraph four of the declaration because it is the only allegation that may have merit. In this paragraph the declarant accuses Juror No. 7 of admitting during deliberations that he had been accused of sexually molesting his own daughter, resulting in a police report and temporary removal of his child from his custody. Apparently, Juror No. 7 explained that no charges were filed, obviously making a conviction impossible.
Lopez contends that Juror No. 7 failed to disclose these allegations in voir dire, thus constituting misconduct. From our review of the record, we are unable to determine whether the juror who allegedly made this statement was asked on voir dire whether he had any personal involvement with a molestation case. While it is true that the trial court inquired with most potential jurors into this topic, it did not do so with every potential juror. Since the record does not identify the juror by number, Lopez has failed in his initial obligation to establish that the juror failed to disclose the charges after an appropriate inquiry.
We are not referring to the seat number of the juror, but the panel number assigned to each potential juror by computer when he or she is called to jury duty.
Even if we were to assume the trial court or counsel inquired into the topic with the juror in question, reversal is not required. “Misconduct by a juror, … usually raises a rebuttable ‘presumption’ of prejudice. [Citations.] This presumption aids parties who are barred by statute 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 themselves reliable indicators of underlying bias [citation]. [¶] Still, whether an individual verdict must be overturned for jury misconduct or irregularity ‘“‘is resolved by reference to the substantial likelihood test, an objective standard.’”’ [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.] [¶] The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life’ [citation] and of society’s strong competing interest in the stability of criminal verdicts [citations]. It is ‘virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ [Citation.] Moreover, the jury is a ‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] ‘[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.… [Jurors] 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.’ [Citation.]” (In re Hamilton (1999) 20 Cal.4th 273, 295-296.)
The entire record in this case, specifically the nature of the misconduct, establishes that there is not a substantial likelihood that the juror who allegedly failed to disclose a prior accusation that he molested his daughter was biased against Lopez. Lopez’s defense at trial is that J.S. fabricated her testimony in an attempt to end Lopez’s control of her life. In other words, Lopez argued he falsely was accused of molesting J.S. Since the juror to whom Lopez is objecting also allegedly falsely was accused of molesting his daughter, we are certain that if he or she had any bias, it was in favor of the defense asserted by Lopez. Accordingly, the trial court properly denied the motion for new trial on the basis of juror misconduct.
II. Sufficiency of the Evidence
Lopez also asserts that the trial court erred in denying his motion for new trial because the verdict was not supported by substantial evidence. “A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.) No abuse appears in this case.
Lopez, as he did in the trial court, attacks J.S.’s credibility. He argues that the inconsistencies in J.S.’s testimony and her reputation in the community as a liar render her credibility unbelievable. In other words, Lopez asks us to conclude the jury could not have found J.S. truthful.
While it is true that there were inconsistencies in J.S.’s testimony, our reading of the record does not suggest that the inconsistencies were so compelling as to require the jury to reject her testimony. Instead, the inconsistencies were typical of a witness who had been molested repeatedly over a period of time. Such victims generally do not keep an accurate journal of when every act occurred, or the details of the act. Nor do they enjoy testifying about the events. Moreover, our reading of the record indicates that J.J., the only witness who testified about J.S.’s ability to lie, indicates J.J. was referring to the lies J.S. told so she could spend time with him.
This case, as is the situation with most cases of this type, was decided based on the jury’s determination of the credibility of the witnesses. Counsel brought out at trial the very facts Lopez now claims entitle him to a new trial. The jury and the trial court heard the witnesses testify and heard counsel’s arguments and determined that J.S. was credible, and Lopez was not. It was their obligation to make that determination, and we do not reweigh the evidence to decide if we would have reached a different conclusion.
In other words, J.S.’s testimony that Lopez molested her repeatedly over an extended period of time was sufficient evidence to support the verdict. The trial court did not err in denying the motion for new trial on this basis.
To the extent that Lopez is suggesting he was physically incapable of molesting J.S., we also reject that claim. The physicians who testified did not state that Lopez could not achieve an erection, but instead testified that someone with Lopez’s medical conditions, and taking the medications prescribed to Lopez, might have trouble achieving an erection. While Lopez testified to the difficulty he had in achieving an erection, the jury could, and apparently did, reject this self-serving testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.