Opinion
D058370 Super. Ct. No. RIF129988
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID STEVEN LOZANO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule
APPEAL from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge. Affirmed.
David Lozano appeals from a judgment convicting him of child abuse likely to produce great bodily harm or death, with a finding of personal infliction of great bodily injury on a child under the age of five. Lozano contends the judgment must be reversed because his counsel was ineffective in (1) failing to move to exclude Lozano's inculpatory statements to the police, and (2) questioning defense character witnesses on direct examination about Lozano's marijuana usage. He also argues his counsel provided ineffective representation by failing to file a new trial motion based on a juror's posting of messages about the case on Facebook during trial. We reject these contentions of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case, Lozano's four-month-old son (Baby), suffered brain injury while in Lozano's care one morning while Baby's mother (Antonia Garcia) was at work. The prosecution's theory was that Lozano had severely shaken Baby. As we shall detail below, during its case-in-chief the prosecution introduced evidence showing that when Lozano was interviewed by the authorities, he denied shaking Baby, and claimed that he found Baby in his bouncer turning blue and gasping for air. Thereafter, once Lozano took the stand and denied shaking Baby, the prosecution impeached this testimony with evidence showing that, after being confronted with information about Baby's injuries, he changed his story and told a detective that Baby fell from the bouncer, and still later admitted to the detective that he had shaken Baby.
Baby's bouncer was attached to a doorframe and was about one foot from the floor.
At the time of Baby's injury, Lozano and Garcia were living with Lozano's parents. Lozano generally took care of Baby while Garcia was at work. In the days prior to the injury, Baby had been fussy and crying a lot. The night before Baby's injury, Lozano and Garcia had little sleep because Baby kept waking up and crying, and the couple were arguing about who should get up and put Baby back to sleep. In the morning (August 14, 2005), Baby woke up crying about 7:15 a.m. According to Garcia, Lozano was still angry about their arguments the previous night, and he went into another bedroom and ignored Garcia's request that he help her with Baby. Garcia took care of Baby, and when she left for work at about 8:00 a.m., Baby was sleeping.
Sometime before 9:30 a.m. that same morning, Lozano went to the home of a neighbor (Susana Estrella) with Baby. Baby was barely breathing and his lips were turning blue; Estrella called 911.
During the prosecution's case-in-chief, Estrella and two sheriff deputies who arrived at the scene testified about Lozano's demeanor and his explanations of what had occurred. Estrella testified that Lozano was screaming and crying when he arrived at her home, and the sheriff deputies stated he was upset and crying and concerned about Baby. Lozano told Estrella that he put Baby in his crib and gave him a bottle; he then put Baby in his bouncer and noticed Baby was not breathing; he then put Baby in his bassinet and noticed he was turning blue. When speaking with Deputy Randy Postoian at the scene, Lozano stated that Baby was in his bouncer; he went to the kitchen to get a bottle; when he returned Baby was turning blue and gasping for air; he picked up Baby out of the bouncer; and he tried to get Baby to breathe by patting his cheeks. After arriving at the hospital, Lozano provided essentially the same explanation to Deputy Larson. When Larson asked Lozano if he had shaken Baby, Lozano answered no.
The other deputy (Deputy Patrick Larson) testified that he also spoke briefly to Lozano at the scene, and Lozano told him that he left Baby in the bedroom for a moment, and when he came back Baby was not breathing and was not responsive.
While at the hospital Lozano told Larson that he left the bedroom to make a bottle while Baby was in his bouncer; when he came back Baby was turning blue and gasping for air; he splashed water on Baby's face and patted his cheeks to try to get him to breathe; and when he realized Baby was not responding he went to the neighbor's home to call 911.
According to Estrella and the sheriff deputies, Lozano never mentioned that Baby had fallen to the floor from his bouncer.
At first Deputy Larson testified that at the hospital Lozano told him that Baby had fallen from the bouncer, but when his memory was refreshed with his police report, he stated Lozano did not tell him this. He testified that if Lozano had stated Baby had fallen out of a bouncer that would have been important and he would have documented that in his police report.
As a result of his injuries, Baby suffered severe retinal hemorrhages and hemorrhaging and swelling in his head. He also had bruising on his left cheek and ear that had a linear pattern typical for a hand slap. He incurred severe brain damage, cannot breathe on his own, is completely nonresponsive, and will never be able to come off a ventilator. The prosecution's medical expert opined that Baby was injured as the result of an abusive shaken baby incident, as shown by his severe, multilayered retinal hemorrhages; global brain injury arising from acceleration/deceleration injury; and the absence of any other medical conditions (such as a blood clotting problem) that could cause these types of injuries. The expert testified that the type of force required to inflict Baby's injuries could not have occurred from a fall from a bouncer which was about one foot from the floor.
Garcia testified that Lozano had anger problems; on two occasions she had seen him treat Baby in a rough, frustrated fashion while placing him in his bassinet and on the bed; and the morning of the injury Lozano read a letter she had left at the house stating he was an awful person and not a good father and she did not want to be with him.
Defense
To refute the testimony of the prosecution's medical expert, a defense medical expert opined there were too many "gray areas" in Baby's case to determine whether he was shaken, including a discrepancy in the descriptions of his retinal hemorrhages and inadequate testing to rule out a blood clotting problem. The defense expert opined that it was possible that Baby's injuries were sustained from a bouncer fall, although this would be unusual.
Defense character witnesses (i.e., Lozano's aunt, two sisters, current wife, and mother) testified that Lozano was gentle, patient, and attentive with children and babies; he was concerned and caring with Baby and a good parent; and he did not get frustrated or annoyed when Baby would cry but would rock him and console him. Lozano's family members described Garcia as an inattentive parent, and one of Lozano's sisters testified that Garcia told her that Baby had been dropped on the tile floor by Garcia's sister.
Lozano's mother was actually called to testify on behalf of the prosecution, but she testified favorably to Lozano concerning his conduct with his son.
Lozano testified that he never got frustrated with Baby; when Baby would cry he would pick him up and console him; and he was very gentle and careful with him and never dropped or threw him. In contrast, he claimed that Garcia was angry because he had impregnated another woman (his current wife); he only stayed with Garcia because he wanted to be with his son; Garcia did not have good mothering skills and had been rough with Baby when she was frustrated; and she would get mad at Baby when Baby would wake up at night. He stated that the night before Baby's injury, he left Baby with Garcia and went to another bedroom to sleep. He heard Garcia yell at Baby because he was crying and say that she wished Baby would "go to sleep for good."
Lozano denied that he shook Baby, and claimed he found Baby and the bouncer fallen to the floor. He explained that after Garcia left for work that morning, Baby woke up "screaming" and he did not sound normal. He placed Baby in his bouncer and went to the kitchen to prepare a bottle, and a few seconds later heard a loud thump and heard Baby scream. He found Baby and the bouncer on the floor. Baby was laying down, halfway out of the bouncer, gasping and holding his breath, trying to cry but not crying, and turning blue. The part of the bouncer that connects around the door, and the piece of wood from the doorframe that the bouncer hung on, were also on the floor.
Lozano took Baby to the bathroom and patted his face with wet hands to try to make him "snap out of it"; he went to the living room and patted Baby's back and slapped his face; and he rocked Baby back and forth. Because his son was not reviving, he ran over to the neighbor's home.
Lozano testified there was no land line at his home, and he did not have a cell phone.
Defense counsel asked Lozano on direct examination about his statements to the neighbor, the deputy sheriffs, and the investigating officer (Detective Steven Welch). Lozano testified he did not talk to the neighbor about what occurred, and he did not remember speaking to the deputies at the scene. He claimed that when he was at the hospital, he told Deputy Larson that Baby fell from the bouncer. He testified that when he was interviewed by Detective Welch at the hospital, he did not tell him that Baby fell from the bouncer because Welch was accusing him of injuring Baby and threatening to arrest him if he did not tell the truth, and he was afraid. Later, at the police station when Welch told him that his "story . . . doesn't add up," he told Welch that Baby had fallen from the bouncer. Defense counsel then questioned Lozano about his later statements to Welch that he had been lying and that he had slapped Baby and shaken him. To explain these statements, Lozano testified that the lie referred to the failure to initially tell Welch about Baby falling out of the bouncer; the slapping merely referred to the patting; and the shaking merely referred to the rocking back and forth. He testified that he did not shake Baby as shown in the shaken-baby-demonstration video submitted by the prosecution.
Rebuttal
In rebuttal, Detective Welch testified that Lozano changed his story each time he was interviewed by him. When he interviewed Lozano at the hospital on August 14, Lozano told him that Baby was crying and throwing a tantrum; he put Baby in the bouncer and gave it a push; he went into the kitchen to get a bottle; he heard a choking noise; and when he came back Baby was turning blue. During a second interview on August 16, Welch told Lozano that Baby had a possible skull fracture behind his right ear. Lozano then told Welch that while he was in the kitchen he heard a loud thud and no more crying, and when he went back he found Baby in the bouncer on the floor, and Baby was gasping for air. During a reenactment of the incident on August 18, Lozano told Welch that he tried to revive Baby by splashing water and patting him on his face; by turning Baby upside down and patting him on the back in case he was choking; and cradling Baby and rocking him from side to side. During an interview on August 30, Welch told Lozano that the doctors said Lozano's description "doesn't add up." At this point, Lozano admitted lying to the police about whether he had shaken Baby, and stated he slapped Baby and probably shook Baby "pretty hard or very hard."
Jury Verdict and Sentence
The jury found Lozano guilty of child abuse likely to produce great bodily harm or death, with a true finding that he personally inflicted great bodily injury on a child under age five. (Pen. Code, §§ 273a, subd. (a), 12022.7, subd. (d).) He was sentenced to nine years in prison.
DISCUSSION
To show ineffective representation, the defendant must establish that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that absent counsel's deficiency the result would have been different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and we do not second-guess reasonable tactical decisions in the harsh light of hindsight. (Id. at pp. 926-927.) To obtain relief on appeal the record must affirmatively disclose that counsel had no rational tactical purpose for his or her act or omission. (Id. at p. 926.) The courts recognize that " ' "[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(People v. Wrest (1992) 3 Cal.4th 1088, 1115.) Even debatable trial tactics do not constitute ineffective representation. (People v. Weaver, supra, 26 Cal.4th at p. 928.) Further, if the record does not show prejudice from counsel's alleged deficiency, we may reject the claim without determining whether counsel's performance was deficient. (People v. Sapp (2003) 31 Cal.4th 240, 263.)
I. Claim of Ineffective Representation Based on Counsel's Failure to Seek Exclusion of Lozano's Inculpatory Statements to Detective Welch Lozano contends his counsel was ineffective for failing to file a motion to exclude the inculpatory statements he made to Detective Welch, because he was in custody at the time of the statements and the statements were elicited without Miranda warnings.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Assuming arguendo that Lozano's inculpatory statements to Detective Welch were custodial, non-Mirandized statements, defense counsel was not ineffective for failing to seek their exclusion because the record shows the statements were not impermissibly used at trial. Lozano's statements to Welch were not presented during the prosecution's case-in-chief. Rather, once Lozano took the stand and denied that he shook Baby, the inculpatory statements were introduced through direct and cross-examination of Lozano and rebuttal testimony of Detective Welch.
The record on appeal is not sufficiently developed to verify whether the statements were elicited in violation of Miranda, although this appears plausible because it would explain why the prosecution did not introduce Lozano's incriminating statements in its case-in-chief.
As recognized by Lozano, a defendant's prior statements taken in violation of Miranda that are inadmissible during the prosecution's case-in-chief may be admitted to impeach the defendant if he or she testifies in a manner inconsistent with the prior statements. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1132; People v. May (1988) 44 Cal. 3d 309, 315.) The rationale for this rule is that the privilege against self-incrimination cannot be invoked by a defendant who has voluntarily taken the stand to testify concerning the subject matter of his or her prior statements. (See People v. May, supra, 44 Cal.3d at p. 319.) As stated in May, " 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.' " (Ibid.)
Because Lozano's statements to Detective Welch were not introduced in the prosecution's case-in-chief, but only after Lozano took the stand and testified he did not shake Baby, they were admissible. Defense counsel was not required to move for their exclusion as impeachment evidence because such a motion would have been futile. Further, knowing that Lozano's inculpatory statements to Welch were admissible to impeach Lozano's exculpatory trial testimony, defense counsel could reasonably elect to question Lozano about the inculpatory statements on direct examination to lessen the "sting" of the evidence and give Lozano an opportunity to explain his statements to the jury. (See People v. Turner (1990) 50 Cal.3d 668, 704-705, fn. 18.)
Lozano argues that if a defense motion had secured exclusion of the evidence from the prosecution's case-in-chief, his trial strategy may have been different. He asserts that because the statements were not excluded, he "was left in the unenviable position of having to testify and explain the statements made on August 30th." The contention is unavailing because if he had elected not to testify, there would have been no basis to admit the statements to impeach his trial testimony.
Because Lozano's inculpatory statements to Detective Welch were admissible for impeachment purposes and this is how the evidence was used, counsel was not ineffective for failing to seek their exclusion.
II. Claim of Ineffective Representation Based on Defense Counsel's Presentation of Evidence of Lozano's Marijuana Use
Lozano argues his counsel provided ineffective representation by opening the door to evidence of his marijuana usage by questioning the defense character witnesses about this drug use.
Background
The issue of the evidence of Lozano's marijuana usage was discussed at several points before trial and during the prosecution's case-in-chief, and defense counsel repeatedly objected to its admission on the basis of irrelevancy and undue prejudice. The court initially ruled the evidence was inadmissible, but stated the issue could be revisited as the case developed, and noted the evidence of marijuana usage might be admissible if defendant testified.
Thereafter, prior to the commencement of the defense case, defense counsel informed the court that he intended to present the testimony of character witnesses to show that Lozano had good parental skills. The prosecutor then requested permission to impeach the character witnesses with evidence of Lozano's marijuana use while caring for Baby. The court granted the prosecutor's request, stating the prosecutor could impeach the character witnesses by asking if they had heard of Lozano's marijuana use while taking care of Baby.
After this ruling, defense counsel asked the character witnesses on direct examination if they had heard that Lozano smoked marijuana, and would this change their opinion about his good parenting skills. Lozano's aunt, two sisters, and wife testified on direct examination that they had not heard that Lozano used marijuana, and if they did hear this it would not change their opinion of his parenting skills. On cross- examination by the prosecutor, these witnesses testified that they would not allow someone who was smoking marijuana to take care of their children, but essentially reiterated that their opinions about Lozano's parenting skills would not change if they heard he used marijuana.
During direct examination of the first character witness (Lozano's aunt), defense counsel did not ask about Lozano's marijuana usage, and the prosecutor was the first to raise the issue on cross-examination. However, the aunt's initial testimony was stricken and her testimony recommenced, and during the recommenced testimony defense counsel raised the marijuana issue on direct examination of the aunt. The aunt's initial testimony was stricken because defense counsel elicited testimony from her that Lozano would not physically abuse a child, which the court interpreted as opening the door to evidence about Lozano's prior violent act of getting into an altercation with a man. Because defense counsel had not intended to open the door to evidence of violent acts, the court agreed to strike the testimony and allow defense counsel to recommence the questioning of the aunt, with the understanding that he would only ask narrow questions about Lozano's parental skills.
Lozano's wife also testified on direct examination that she would not allow Lozano to take care of her children if he was under the influence of marijuana, but stated that if she heard he smoked marijuana it would not change her opinion of his good parenting skills.
When Lozano testified, he stated on cross-examination by the prosecutor that he had only smoked marijuana on one or two occasions, and he did not smoke while taking care of Baby.
In rebuttal, the prosecutor called Lozano's mother and Detective Welch to testify about Lozano's marijuana use. Lozano's mother testified that she told Welch that Lozano had attention deficit disorder (ADD) and he regularly used marijuana in his earlier years and it would make him calm; she also told Welch that Lozano did not use it in 2005 (the time period when he was caring for Baby). Detective Welch testified that Lozano told him he used marijuana. Further, according to Welch, Lozano's mother told him Lozano smoked marijuana for ADD and he was calm when he smoked. Additionally, Lozano's brother told Welch that Lozano would give him Baby while Lozano went outside to smoke marijuana, and then Lozano would return and take over the care of Baby.
Analysis
Lozano asserts his counsel provided ineffective representation because he presented the marijuana evidence on direct examination even though the trial court had excluded the evidence. This contention is based on an inaccurate summation of the record. As set forth above, the trial court ultimately permitted the prosecutor to use the marijuana evidence for impeachment of the defense testimony about Lozano's good parenting skills.
To the extent Lozano suggests the trial court erred in permitting the use of the marijuana evidence for impeachment purposes, we find no abuse of discretion. Preliminarily, we note the court did not admit the evidence of marijuana use as general impeachment or criminal propensity evidence (i.e., to show a general tendency to lie or to commit crimes), but rather solely on the narrow ground of impeaching the testimony that he was a conscientious parent. The prosecutor may properly challenge the knowledge and credibility of a good character witness by asking whether he or she has heard of conduct by the defendant that is inconsistent with the witness's testimony, as long as the prosecutor has a good faith belief that the conduct took place. (Evid. Code, § 1102, subd. (b); People v. Ramos (1997) 15 Cal. 4th 1133, 1173.)
Based on this principle, the trial court did not abuse its discretion in ruling the prosecutor could impeach the defense character witnesses' testimony about Lozano's good parenting skills with questions about his marijuana use while caring for Baby. A trial court has broad discretion in determining the relevancy of evidence, and we will not disturb its determination on appeal unless the court acted " 'in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Horning (2004) 34 Cal.4th 871, 900.) The defense character witnesses described Lozano as an attentive parent responsive to Baby's needs. It was not unreasonable for the court to conclude that Lozano's use of marijuana while taking care of a baby was relevant to challenge the credibility of this view.
Similarly, when a testifying defendant makes factual assertions concerning his or her conduct, the prosecutor may properly impeach this testimony by presenting evidence refuting the truth of these assertions. (See People v. Senior (1992) 3 Cal.App.4th 765, 778-779.) Because Lozano presented good character evidence on his own behalf by testifying that he was an attentive parent while caring for Baby, it was not unreasonable to permit the prosecutor to impeach this testimony by cross-examining Lozano and presenting rebuttal witnesses to show Lozano's marijuana usage while caring for Baby.
Based on the court's ruling permitting introduction of the marijuana evidence for impeachment purposes, defense counsel could reasonably decide that it was preferable to lessen the negative impact by eliciting the evidence on direct examination of the character witnesses, rather than having the prosecution be the first to raise this subject. (People v. Turner, supra, 50 Cal.3d at pp. 704-705, fn. 18.) Notably, the evidence elicited by defense counsel from these witnesses was generally favorable to defendant; i.e., they indicated they had not heard Lozano used marijuana and even if they did hear this, they would still think highly of his parenting skills.
Further, defense counsel did not act unreasonably when deciding to present the good character testimony even though this would allow introduction of the evidence of Lozano's marijuana use. Reasonably competent counsel could conclude that the value of testimony showing Lozano's good parenting skills was greater than the detriment arising from the evidence of his marijuana usage. The reasonableness of this decision is also supported by the evidence suggesting that Lozano's marijuana usage made him calm, not agitated, and hence he would not have shaken Baby if he was using marijuana.
Indeed, the prosecutor presented an argument based on this theory during closing arguments. During the defense closing arguments, defense counsel asserted there was no evidence Lozano was smoking marijuana on the day of the injury, and further there was no link between marijuana use and child abuse. Responding to this during rebuttal closing arguments, the prosecutor argued to the jury that Lozano was smoking marijuana to remain calm and because he did not smoke marijuana on the day of the injury, he was not calm and he "snapped."
Lozano has not shown ineffective representation based on the introduction of the evidence concerning his marijuana usage.
III. Claim of Ineffective Representation Arising from Counsel's Failure to File a Motion for New Trial Based on Jury Misconduct
Lozano argues his counsel was ineffective because he failed to move for a new trial based on a juror's conduct of communicating about the case on Facebook during trial.
Background
After the jury verdict, defense counsel moved for disclosure of juror identifying information so he could investigate juror misconduct for purposes of a new trial motion. Defense counsel informed the court that the jury foreperson (Juror No. 7) had made postings about the case on Facebook, and he wanted to investigate whether the juror also discussed the case with her friends through other methods. Defense counsel submitted copies of the Facebook pages which showed several postings by this juror at the beginning and end of trial.
A posting at the beginning of trial stated: "[L.G.] is Juror #7. Is it over yet?" A Facebook user thanked Juror No. 7 for doing her civic duty. In response Juror No. 7 wrote: "I'd much rather live in my sheltered life where only good things happen! Horrible case." Another user asked if Juror No. 7 could share what kind of case it was, and Juror No. 7 responded,
"I can tell you what they told us the first day and that is all. Child abuse case. Happened when baby was 4 months old and has been in a coma since. The baby is now 5 years old. All comes down to circumstantial evidence and credibility of the witnesses."During this thread of communication, another user (K.H.) wrote that she was chosen for a jury twice in one week, but she then started expressing her opinions and got excused. Juror No. 7 answered that she tried that, even stating that her family members worked for the Sheriff's department. K.H. then wrote: "Just say—Anyone that would touch a child in my opinion is guilty as charged." Juror No. 7 responded: "I'd like to but too late now."
On the day before the last day of trial, Juror No. 7 posted: "[H]i ho hi ho it's off to court I go . . . jury duty continues." This posting received a reply from a user stating, "GUILTY." Another posting (from user S.H.) stated: "So I just read your other post describing the case. I guess I'd like to be on a jury if I could pick the case. Sounds really tough." The next day Juror No. 7 replied to S.H., stating, "I'll fill you in when we are done. Today is closing arguments, jury instructions and deliberation. Hopefully we will be done today."
Opposing the disclosure motion, the prosecutor argued the Facebook postings did not show any prejudicial communications by the juror. Defense counsel asserted there was sufficient cause for him to contact the juror, and noted that if she assured him that there were no other discussions about the case other than what appeared in the Facebook pages, there might not be sufficient grounds for a new trial. The trial court stated it was "unfortunate" that the juror made the Facebook postings, but assessed the postings did not indicate the juror had formed any opinions on the issue of guilt. Nevertheless, the court concluded there was sufficient cause for the disclosure of the identifying information for Juror No. 7 to determine if there were any other postings or discussions of the case. Defense counsel stated that if he contacted the juror and there was a basis for a new trial motion, he would file one. Thereafter, no new trial motion was filed, and there is no further information in the record about this matter.
Analysis
A defendant has a constitutional right to a trial by an impartial jury. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1115.) The jury must decide the case solely on the evidence adduced at trial, and must not be influenced by any extrajudicial communications. (Ibid.)The existence of juror misconduct creates a rebuttable presumption of prejudice; the presumption is rebutted if the record shows no substantial likelihood of juror bias. (Id. at p. 1116.) Juror bias exists if there is a substantial likelihood that a juror's verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the defendant. (Ibid.)If the record shows a substantial likelihood that even one juror was impermissibly influenced to the defendant's detriment, the defendant is entitled to a new trial. (Id. at p. 1117.)
The trial court instructed the jurors that they should not talk about the case with anyone outside of the jury deliberation room. A Facebook communication about a person's jury duty that describes the facts of the case opens the door to responses from a wide variety of individuals. Juror No. 7's postings on Facebook created a danger of outside influence and constituted misconduct.
When telling the jurors not to talk about the case, the court stated "[o]bviously you can go home and tell your spouse that you're on jury duty, what kind of case it is. But as far as the blow-by-blow testimony daily, what you hear, what you see please don't [do] that." Because of its broader reach, a Facebook communication does not equate with a communication to a spouse.
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However, the record on appeal does not show that defense counsel was ineffective for failing to file a new trial motion based on the misconduct. The record shows that defense counsel requested the juror contact information and indicated he would file a new trial motion if warranted. On this appellate record, we do not know what information defense counsel may have obtained from Juror No. 7. On a silent record on appeal, relief based on ineffective representation may be granted only if there could be no reasonable basis for counsel's subsequent failure to file a new trial motion. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, defense counsel may have acquired information that reasonably convinced him there was no substantial likelihood of juror bias, and thus the presumption of prejudice arising from the misconduct was rebutted.
Moreover, as assessed by the court and counsel during the proceedings below, the content of the Facebook communications support that there was no substantial likelihood of juror bias. Juror No. 7's postings on the first day of trial that briefly described the nature of the case do not involve her receipt of any outside influence. Her statement that it was a "[h]orrible case" does not suggest that she had a predetermined view of guilt, but reflects her response to a case involving a severely injured baby. Consistent with this, her statement that the case "[a]ll comes down to circumstantial evidence and credibility of the witnesses" indicates that she understood her duty to base a verdict on the evidence presented at trial. The response from user K.H. that Juror No. 7 should say anyone who touches a child is guilty was made in the context of how to avoid jury service, and did not involve a discussion as to whether Lozano was guilty.
Further, Juror No. 7's postings do not reflect that she was unable to be impartial. Her communications suggesting that she had wanted to be excused from jury duty and was hoping the case would be over soon can readily be construed as merely expressing the natural qualms of many people when serving in a criminal case involving emotionally difficult facts.
Notably, Juror No. 7 did not make any postings about the specifics of the trial testimony or her reactions to the testimony. The user's response stating "GUILTY" was divorced of any discussion of the merits of the case, and there is nothing to suggest Juror No. 7 would have given any weight to a responder's obviously uninformed comment on guilt. Other than this single unsolicited, noncontextual "GUILTY" posting, there were no communications between Juror No. 7 and her responders about the merits of the case.
Because defense counsel may have acquired information from the juror showing no substantial likelihood of juror bias, and because facially the Facebook communications support this conclusion, Lozano's claim of ineffective representation fails.
IV. Cumulative Error
Lozano contends he did not receive a fair trial because of cumulative error. As set forth above, the record does not show ineffective representation. The contention of cumulative error is unavailing.
DISPOSITION
The judgment is affirmed.
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HALLER, J.
WE CONCUR:
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NARES, Acting P. J.
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MCINTYRE, J.