Opinion
A142896
04-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY PAUL MONTICELLO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR641209)
Appellant Jeffrey Monticello seeks review of a judgment of conviction entered after a jury trial, contending he received ineffective assistance of counsel and his motion for a new trial was improperly denied. We reject his ineffective assistance of counsel claim and conclude the trial court did not err in denying his motion for a new trial.
I. BACKGROUND
Monticello was charged in an information with three counts of obstructing and resisting an executive officer in the performance of his or her duty (Pen. Code, § 69) (counts I-III) and trespassing (Pen. Code, § 602, subd. (o)) (count IV). A jury found him guilty of all counts, and Monticello timely appealed the ensuing judgment. Before turning to Monticello's claims on appeal, we briefly summarize the evidence presented at trial.
A. The Prosecution Case
On the night of October 10, 2013, David Mendez arrived at his secluded hillside home to find Monticello, a stranger to him, sitting on his deck without permission. Mendez asked Monticello why he was there, but Monticello did not respond, saying only that his first name was Jeff.
After repeatedly asking Monticello to leave, to no avail, Mendez decided to call the police. Concerned that Monticello was working with an accomplice to burglarize his home, Mendez reported a break-in. Based on Monticello's demeanor and lack of responsiveness to questions, Mendez also reported that Monticello might be intoxicated.
Three uniformed Sonoma County sheriff's deputies were dispatched to the house on a report of a burglary in progress. After climbing up the stairs to reach the deck, the deputies approached Monticello and asked him why he was there. Monticello mumbled incoherently. The deputies repeated their questions, and Monticello did not respond.
Deputy Aldridge noticed that Monticello's pupils were not reactive to his flashlight. Aldridge was concerned that Monticello was either on drugs or experiencing a mental health crisis. At that point, Deputies Aldridge and Frampton decided to handcuff Monticello for their safety as they took the investigation further.
When the deputies tried to handcuff Monticello, he became tense and stiff. Monticello struggled against any attempt to move his limbs and tried to break the deputies' holds. Deputy Jaap approached and Monticello swung a deck chair at her, hitting her in the thigh.
Mendez testified that from his position at the bottom of the stairs, he could hear the deck furniture "getting tossed around." He heard Monticello screaming incoherently, and he also heard Monticello shout, "I have a family!"
The deputies took Monticello to the ground with a leg sweep and controlled fall. Monticello pulled his arm free and started reaching under his body. Concerned Monticello was reaching for a weapon, Aldridge used distraction blows to the head and body in an effort regain control of Monticello's arm. Monticello continued to resist.
During the melee, Monticello kicked Jaap in her hands and knees. She struck Monticello with her flashlight but he continued kicking. Jaap called for emergency medical services.
Aldridge was finally able to regain control of Monticello's hands and handcuffed him. Several times, Monticello asked the deputies to shoot him. Aldridge found Monticello's driver's license and stepped away to radio in the identification.
While handcuffed, Monticello resumed his attempts to resist. He rolled onto his side and started kicking violently. Aldridge returned and Monticello kicked him three or four times in the chest.
In an effort to further immobilize Monticello, the deputies placed him in maximum restraints. They looped a cord around his waist as he continued to resist, and wrapped the cord around his ankles to secure his legs. Monticello kicked Aldridge in the chest a few more times during this process, while the deputies continued to deliver distraction blows.
At one point, Monticello's wife called his cell phone. Aldridge answered the phone, identified himself, and asked her if Monticello had mental health issues. Based on her response, Aldridge determined that Monticello did not have mental health issues.
Fire department medical personnel arrived to evaluate Monticello. The paramedics determined he did not need to go to the hospital and he was cleared for arrest. Monticello was transported to the sheriff's substation. There, photographs were taken of Monticello and the deputies. Monticello had swelling on the side of his face and blood around his mouth. Aldridge had scrapes and swelling on his hand, an abrasion on his calf, and swollen knees. Jaap suffered a bruised thigh and a cut on her finger. Frampton had an abrasion on his forearm. None of the deputies needed medical attention.
At the station, the deputies were unable to draw blood from Monticello to ascertain if he was under the influence of drugs or alcohol, because he refused to cooperate.
To provide context and background for evaluating why the deputies had taken the steps they did in arresting Monticello, the prosecution called an expert witness, Gary Freitas, a member of the Sonoma County Sheriff's Department. Freitas testified as an expert on use of force and defensive tactics by law enforcement officers.
B. The Defense Case
Monticello testified that on the night of the incident, he had one drink at a friend's house. He began to feel lightheaded, which he attributed to a traumatic brain injury he suffered in the mid-1980's. Since then, he had experienced this kind of lightheadedness once before.
He left his friend's house to get some fresh air. He became more confused and unable to physically communicate. He called his wife and asked her to pick him up at a nearby restaurant, but then left before she arrived because he felt uncomfortable there. He kept walking until he reached a set of stairs.
Monticello walked up the stairs and arrived on a house's deck. He sat down on a bench on the deck. His wife called and said his son was coming to pick him up, and Monticello decided to wait there.
Mendez appeared and asked Monticello some questions. Monticello was only able to give his name, and then decided it would be best to say nothing else. Mendez asked Monticello to leave, but Monticello could not respond.
Three sheriff's deputies arrived. Deputy Aldridge spoke to Monticello and asked him questions, but Monticello was only able to give his name. The deputies helped Monticello to stand and then handcuffed him.
Monticello's phone rang, and Aldridge answered the phone. After the call ended, Aldridge calmly walked to Monticello and nodded to Deputy Frampton. Monticello's legs were swept from under him and he was slammed onto the deck, hitting his right cheek.
The deputies yelled, "[S]top resisting." Aldridge put his knee on Monticello's back and hit Monticello in the face five or six times. Monticello yelled things like "stop, I have a family," and "you've got the wrong guy."
Frampton struck Monticello in the back of his skull and Monticello went unconscious. Monticello regained consciousness when Deputy Jaap yelled, "[S]top, that's enough."
Upon regaining consciousness, Monticello noticed something was covering his head and felt his legs being "crank[ed]" to his waist. He instinctively straightened his legs, and then the deputies struck his legs multiple times.
At that point, Monticello was arrested and transported away from the scene. After the incident, he was in a lot of pain and felt "next to death."
II. ARGUMENT
A. Ineffective Assistance of Counsel
1. Standard of Review
A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both that (1) counsel's representation fell below an objective standard of reasonableness and (2) the defendant suffered prejudice as a result, in that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To show deficient performance, the defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, at p. 687.) To show prejudice, the defendant must show "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Ibid.) If either element has not been proven, the defendant's claim of ineffective assistance fails. (Id. at p. 697.)
Scrutiny of counsel's actions must be highly deferential, and the reviewing court must make every effort to remove the distorting effects of hindsight. (Strickland, supra, 466 U.S. at pp. 689-690; see also People v. Scott (1997) 15 Cal.4th 1188, 1212 ["courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight"].) The United States Supreme Court has recognized "[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." (Strickland, at p. 689.) On appeal, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Id. at p. 690.)
2. Counsel's Decision Not to Object to the Expert's Testimony
a. Background
Prior to trial, the prosecution gave notice that it intended to call Sonoma County Sheriff's Deputy Gary Freitas as an expert in use of force and defensive tactics by law enforcement officers. Monticello's trial counsel requested an Evidence Code section 402 hearing on Freitas's qualifications as an expert. Monticello's counsel did not challenge Freitas's testimony on any other ground.
The court heard evidence on Freitas's background and experience. Freitas testified that he had received 732 hours of training on law enforcement officer use of force, had previously been designated as an expert in court, and had informally evaluated between fifteen and twenty cases involving use of force by officers. The court found Freitas was qualified to serve as an expert in the use of force and defensive tactics.
At trial, Freitas testified about the department's use of force policies. He described a graduated response system that deputies should use in interactions with suspects. First, deputies rely on their command presence and calmness. If the suspect resists over a period of time, then officers may need to use physical force.
Freitas explained that an officer may use strikes or blows when an officer faces physical resistance from a suspect. He testified that an officer may be concerned when the suspect's hands reach near their waistband, because the suspect may be reaching for a weapon. When this happens, deputies are authorized to use distraction strikes.
Freitas assessed the deputies' use of force in Monticello's case. Freitas addressed the fact that a burglary was reported, that the officers were informed Monticello might be intoxicated, the challenge of confronting a suspect at night, and the hillside layout of the deck.
Freitas explained how deputies are instructed to use maximum restraint cords. He explained that restraint cords may be used when a suspect is handcuffed but still kicking.
The prosecution asked Freitas about a hypothetical fact pattern similar to Monticello's case. The prosecution asked Freitas how he would have responded if the suspect was unresponsive and resisted being handcuffed. Freitas described an escalating series of potential appropriate responses, including taking the suspect to the ground and placing a knee on the suspect's back to hold them down.
The opinions Freitas offered were focused specifically on this hypothetical fact pattern. He did not address or offer any opinions on the applicable law or the credibility of the competing versions of the facts in this case, and he did not offer any opinion on the ultimate legal issue raised by Monticello's excessive force defense.
In closing argument, the prosecutor argued, "A peace officer may use reasonable force . . . and that's why we brought in Detective Freitas to kind of explain it to you. It is an uncomfortable concept . . . [The deputies] can use reasonable force to detain, prevent escape, much like they discussed, overcome resistance or in self defense . . . [T]hat is a hard concept, but based on Detective Freitas, hopefully we've assisted you in understanding those parameters. Again, not so much your issue because it really just comes down to who you believe."
b. Failure to Object Was Not Ineffective Assistance
Monticello contends his trial counsel was ineffective because she did not object to Freitas's testimony beyond seeking an Evidence Code section 402 hearing on Freitas's qualifications. He claims that beyond counsel's objection to Deputy Freitas's qualifications, she should have lodged objections alleging Freitas was biased, that he was vouching for the deputies involved in his case, and that his testimony would not help the jury and should have been excluded as more prejudicial than probative under Evidence Code section 352.
The argument that, as a fellow officer in the same department, Freitas was so biased that calling him as an expert amounted to vouching for the credibility of the arresting officers, is a novel one. We are aware of no California authority for it, and even looking broadly, across the country, the precedent for this type of objection is oblique, at best. On a different record, the objection might have some force—for example, where the law enforcement expert had some role in the challenged conduct—but we discern none here. Obviously, we will not charge counsel with ineffectiveness for not making a creative but legally unsupported objection.
Cf. United States v. Brown (2d Cir. 1985) 776 F.2d 397, 401, fn. 6 (Friendly, J.) (because the " 'aura of special reliability and trustworthiness' surrounding expert testimony, which ought to caution its use [citations], especially when offered by the prosecution in criminal cases, [citations], poses a special risk in a case" where the expert also served as an investigating officer, the trial court should carefully weigh probative value versus prejudice in deciding whether to admit such testimony), quoting United States v. Young (2d Cir. 1984) 745 F.2d 733, 766 (Newman, J. concurring) (proposing that testimony by a law enforcement expert who was also part of the investigating team is sufficiently problematic that it should not be counted when assessing the legal sufficiency of the evidence); United States v. Boissoneault (2d Cir. 1991) 926 F.2d 230, 234 (arresting agent's expert testimony that defendant was acting as a lookout in a drug transaction was entitled to "little weight"); Bamberger, The Dangerous Expert Witness (1986) 52 Brooklyn L.Rev. 855 (noting that the use of an investigating officer's fact and expert opinion testimony is problematic because it could be considered improper vouching by the prosecutor).
There is more weight to Monticello's claim that defense counsel should have objected to Freitas's expert testimony on grounds it would not aid the jury under Evidence Code section 801 or that its probative value outweighed its prejudicial effect under Evidence Code section 352. In People v. Brown (2016) 245 Cal.App.4th 140, 165 (Brown), we found that, on the record presented there, the admission of expert testimony on police use of force "added nothing to the common fund of information that any juror would have brought to the jury room and . . . inaccurately addressed the governing law, . . . in essence, invit[ing] the jury to abdicate its duty to decide the issue of excessive force based on an erroneous understanding of the law." We also held that, on the record presented there, the expert testimony in that case was inadmissible under Evidence Code section 352.
When Monticello's trial took place, however, Brown had not yet been decided. As we noted in Brown, two years after Monticello's trial, "[t]he specific question of admissibility of expert testimony on use of force in [criminal cases] has not been resolved in California." (Brown, supra, 245 Cal.App.4th at p. 158.) Monticello's trial counsel could not be expected to have lodged objections on this issue when there was no legal precedent to support them. (People v. Price (1991) 1 Cal.4th 324, 387 [no ineffective assistance where "a reasonably competent attorney might well have determined that an objection on [this ground] would have been futile in light of this precedent"].)
Finding no relevant criminal case—his appellate briefs having been filed before our Brown opinion issued—Monticello relies on Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762 (Allgoewer) for the proposition that expert testimony on use of force was "unnecessary to help the trier of fact, thereby, making it inadmissible under Evidence Code section 801(a). In Allgoewer, a civil case, the plaintiff sued two police officers, alleging they had used excessive force against him when they came to his home to investigate a complaint from the plaintiff's ex-wife that he was keeping the couple's son in violation of a child custody order. (Id. at p. 758.) Defense counsel argued that the plaintiff was required to present expert testimony, and the trial court agreed, granting a nonsuit motion. (Id. at pp. 759-760.) The Court of Appeal reversed, holding that expert testimony may be admissible or inadmissible on the issue of excessive force, but it is not a requirement in a civil excessive force case. (Id. at pp. 764-766.)
Allgoewer does not support Monticello's claim. That case only addressed whether expert testimony on use of force was a requirement in the context of civil litigation; it did not address the underlying admissibility of such evidence, in civil or criminal cases. Because Allgoewer does not address the issue of admissibility, it has no bearing on whether Monticello's counsel was ineffective in declining to object to such testimony.
Monticello's counsel did take steps to address Deputy Freitas's testimony, and clearly understood that Freitas's testimony would be disadvantageous for her client. She requested an Evidence Code section 402 hearing to determine whether Deputy Freitas was qualified to testify. The trial court determined that Freitas was qualified to testify.
Monticello's counsel continued to pursue the issue once the trial began. When Freitas was on the stand, Monticello's counsel cross-examined him extensively. She asked about his connection to the prosecution. In her closing argument, she addressed the issue of bias and his connection to the officers involved in the case. We cannot say that her approach to challenging Freitas's testimony—and specifically, declining to make Monticello's now-desired objections—was objectively unreasonable.
3. Counsel's Decision Not to Introduce the Post-Arrest Video
a. Background
Monticello's counsel originally sought to introduce a video of Monticello's arrival at the detention facility. Monticello arrived at the facility approximately 75 minutes after his arrest at the scene. The trial court reviewed the video and stated that it showed Monticello on the ground, tied with a "maximum cord" with his feet up. The court noted that much of the video appeared to have no relevance.
Monticello's counsel planned to introduce part of the video at trial, but the trial court advised her that none of the witnesses anticipated to testify in the trial could lay the proper foundation. The court informed Monticello's counsel that an additional witness was needed to lay the foundation. Monticello's counsel replied, "Your Honor, in the interest of moving things along, we're withdrawing the request to show the video."
The court replied, "Okay. You don't have to do that for the interest of keeping things moving along. You do not have to do that. You can do anything you want to do, but don't do it for court efficiency. I'm not requiring you to do that. I'm not saying that that is a good idea." Monticello's counsel responded, "I appreciate that, Your Honor. It is my client's decision after our consultation here that that is our joint decision."
After the jury rendered its verdict, Monticello's trial counsel wrote a declaration in support of Monticello's motion for a new trial. There, Monticello's counsel wrote that she withdrew the video "against [her] better judgment" because Monticello "balked at the possibility of a short delay in obtaining a witness to lay the foundation for this evidence." She notes that the video "would have assisted the defense case" because Monticello appeared bloody and dirty, while the officers appeared very clean and orderly in photographs taken after the incident.
In addressing Monticello's claim of ineffective assistance of counsel, the trial court described its observations of the video decision. The court noted that it offered to grant a two-day continuance to bring in a foundational witness for the video. The court said to Monticello, "You were adamantly opposed to that. I sat here and watched you consult with your attorney and it was you that made the decision, with the help of your attorney, and after consultation with your attorney, to not continue this trial for whatever reason . . . this was a joint decision."
b. Failure to Introduce the Video Was Not Ineffective Assistance
Counsel does not act in a vacuum and the desires of the client underlie many of the decisions made at trial. "Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." (Strickland, supra, 466 U.S. at p. 691.)
When counsel accedes to a defendant's wishes, the defendant may not claim on appeal that such assistance was ineffective. "The invited-error doctrine operates, in particular, to estop a defendant from claiming ineffective assistance of counsel based on counsel's acts or omissions in conformance with the defendant's own request." (People v. Lang (1989) 49 Cal.3d 991, 1032 (Lang).)
Monticello points to Townsend v. Superior Court (1975) 15 Cal.3d 774 for the proposition that "the power to control judicial proceedings and to make tactical decisions is vested exclusively in counsel." Townsend addresses the permissibility of a defense counsel's time waiver without the defendant's consent; it is inapplicable in a case in which counsel proceeded at the client's direct instruction. (Id. at pp. 780-783.)
Here, the trial court found that Monticello's counsel's decision not to introduce the video was a result of Monticello's directive. At the time the video was withdrawn, Monticello's counsel said, "it is my client's decision." The trial court confirmed that Monticello consulted with his counsel to arrive at this decision. Thus, he is estopped from claiming ineffective assistance of counsel on this issue.
In any event, Monticello has shown no prejudice as a result of the failure to introduce the video. From the descriptions in the record, it appears the video did not hold significant probative value. The video did not depict the incident itself, but instead merely displayed Monticello's condition 75 minutes later when he arrived at the detention facility.
At best, the video provided evidence of the extent of Monticello's injuries. Other evidence was presented of his injuries at trial, including through photographs and Monticello's own testimony. We conclude he has suffered no prejudice as a result of the failure to introduce the video.
4. Counsel's Decision Not to Introduce Evidence of Monticello's Traumatic Brain Injury
Monticello claims his trial counsel's failure to present corroborating evidence of his traumatic brain injury from the mid-1980's was ineffective assistance.
a. Background
A few days before trial, Monticello informed his counsel that he suffered a brain injury in the mid-1980's. His trial counsel then attempted, but failed, to secure evidence of the brain injury before trial.
At trial, Monticello testified about his traumatic brain injury. He explained how the injury occurred, the extent of the injury, and the symptoms of the injury. He explained that he could not get medical records in time for trial because of the age of the records. The prosecution cross-examined Monticello on the injury, but did not question whether the injury had occurred.
After the jury rendered its verdict, Monticello's trial counsel subpoenaed the hospital where he was treated and obtained a one-page document indicating that Monticello was treated for "concussion, post-concussion confusion" in 1985.
In Monticello's motion for a new trial, Monticello argued that his counsel had rendered ineffective assistance by failing to present corroborating evidence of his brain injury. The trial court denied the motion and noted that Monticello had refused to delay the trial in order to allow his counsel to obtain the medical records. The trial court said to Monticello, "it's somewhat difficult to get your records that are 30 years old, but you knew this, Mr. Monticello. You knew this and you asserted your right to a speedy and public jury trial."
b. Failure to Introduce Evidence of Traumatic Brain Injury Was Not Ineffective Assistance
Monticello did not suffer ineffective assistance of counsel from his trial counsel's failure to present additional corroborating evidence of his brain injury to the jury.
First, the jury was not unaware of Monticello's brain injury. Monticello himself testified about the brain injury and its effects. On cross-examination, the prosecution did not question the validity of his brain injury claim. Thus, the jury was presented with uncontroverted evidence that Monticello had suffered a brain injury.
On appeal, Monticello also contends that his mother, wife, and son should have been called as witnesses to corroborate his brain injury testimony. Monticello testified to the effects of the brain injury, and it is unclear what additional information these individuals could have provided. We do not find that it falls below an objective standard of reasonableness for counsel to have decided against calling Monticello's closest family members as witnesses to bolster his testimony. (See Strickland, supra, 466 U.S. at pp. 687-688.)
Second, Monticello chose to proceed to trial when his medical records were not yet available. Monticello only advised his counsel of the brain injury days before his trial date. If he wanted to allow his counsel the opportunity to obtain medical records, he needed to allow for a continuance. Instead, he insisted that they proceed to trial. Thus, he is estopped from claiming ineffective assistance of counsel on this issue. (See Lang, supra, 49 Cal.3d at p. 1032.)
Third, Monticello has not demonstrated any prejudice that resulted from the failure to present corroborating evidence of the brain injury. There is no indication that additional evidence of the brain injury would have disproven any elements of the crimes Monticello was charged with. The jury found Monticello guilty of two classes of crimes: resisting an executive officer and trespassing (Pen. Code, §§ 69 and 602, subd. (o)). Both are general intent crimes. (People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1420-1421; see CALCRIM 2931.) Evidence of a brain injury does not disprove any element of these general intent crimes. (See Pen. Code, § 28 [evidence of mental defect admissible only for specific intent crimes].) Because additional evidence of his brain injury could not have changed the jury's verdicts, Monticello has demonstrated no prejudice.
5. Counsel's Chosen Character Witness
At trial, Monticello's counsel called one character witness, Fred Von Renner. Von Renner supervised Monticello's community service and volunteer work at a park for four years, where Monticello mowed the park lawn. Von Renner testified that he had never known Monticello to be aggressive, violent, or confrontational.
On appeal, Monticello claims that it was ineffective assistance for his trial counsel to call only one character witness. Monticello also contends that there were better character witnesses available to the defense, and those individuals should have been called to testify instead.
First, we do not find that the selection of Von Renner as character witness was an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, supra, 466 U.S. at p. 687.) Von Renner testified, without impeachment, that he did not know Monticello to be aggressive, violent, or confrontational. Thus, Von Renner met all of the defense's needs in a character witness. Whether a different witness or additional witnesses would have submitted marginally better testimony on Monticello's behalf is not an issue of ineffective assistance.
Second, we note that trial counsel may have sought to minimize the time spent on character evidence for tactical reasons. Trial counsel may have concluded that character was not a central issue in the case. Monticello testified that he was suffering from an unusual and disorienting mental health episode at the time of the incident. Thus, at the time of the incident, he was behaving in a way that was unusual and out of character for him. Evidence of his character during other times in his life may have had no bearing on his behavior during the episode.
Even if counsel's choice of character witness was an error, there is no indication of prejudice to Monticello. Monticello has failed to demonstrate that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.) Under certain circumstances, even an individual with stellar character may behave in ways no one, even that individual, would have predicted. There is no indication here that stronger character evidence would have changed the jury's verdict.
6. Counsel's Decision Not to Request a Hearing into Juror Misconduct
On appeal, Monticello contends he received ineffective assistance because his counsel did not request a hearing into juror misconduct based on a post-trial declaration submitted by one juror.
The jury returned a verdict of guilty on all counts. The court orally polled the jury and each juror confirmed their verdict. After the case was over, one juror, Juror 193, had reservations about her verdict and the deliberations process and spoke with Monticello's counsel. Monticello's counsel took a declaration from the juror and submitted it to the court as part of a motion for a new trial. The declaration alleged a variety of issues, detailed below, which related to a failure to deliberate and other misconduct.
The trial court denied the motion for a new trial on juror misconduct. The court also declined to hold an evidentiary hearing on the alleged juror misconduct. The court explained, "I believe that I would have the absolute right to request an evidentiary hearing if I felt that it was necessary. But based on the points and authorities as well as the declarations I have received, I do not believe that it is necessary to have an evidentiary hearing. But I would note for the record that neither side had asked for one."
A trial court has discretion to decide whether to investigate any alleged juror misconduct. "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror--rests within the sound discretion of the trial court." (People v. Bradford (1997) 15 Cal.4th 1229, 1348.) It is the obligation of the trial court—not defense counsel—to decide whether an investigation is warranted.
Here, the trial court was within its discretion to decline further investigation of the juror misconduct issue. To prove prejudice, Monticello must show that there was a reasonable probability that, had his counsel asked for a hearing, the outcome of the proceeding would have been different. (See Strickland, supra, 466 U.S. at p. 694.)
Monticello has made no such showing. Indeed, Monticello has failed even to show that the outcome of the court's ruling on this specific issue would have been different had his counsel requested a hearing. We see no likelihood, or even reasonable possibility, that counsel's request for a hearing could have changed the outcome of the entire case.
Accordingly, we find no merit to any of Monticello's claims of ineffective assistance of counsel.
Monticello also claims that his conviction must be reversed due to cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we have found no errors, so the cumulative error doctrine is inapplicable.
B. Motion for New Trial
After the jury rendered its verdicts, Monticello filed a motion for a new trial on the grounds of ineffective assistance of counsel and jury misconduct. The trial court denied the motion for the new trial. Monticello now appeals that ruling.
1. Ineffective Assistance of Counsel
We employ a two-step process to review the denial of a motion for new trial based on purported ineffective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) We review the trial court's express or implied factual findings for substantial evidence, applying all presumptions in favor of the trial court's exercise of its power to judge witness credibility, resolve conflicts in testimony, weigh the evidence, and draw factual inferences. (Id. at p. 724.) We review de novo its determination whether, on the facts as found, the defendant has shown his or her trial counsel was ineffective or to show he suffered prejudice as a result of counsel's alleged failings. (Id. at pp. 724-725.) "To the extent that these are questions of law, the appellate court is not bound by the substantial evidence rule, but has ' "the ultimate responsibility . . . to measure the facts, as found by the trier, against the constitutional standard' . . . ." [Citation.] On that issue, in short, the appellate court exercises its independent judgment.' " (Id. at p. 725.)
The trial court considered two arguments raised by Monticello on the grounds of ineffective assistance of counsel. First, the court considered the argument that counsel's failure to introduce the post-arrest video was ineffective assistance. The court noted that after it ruled the video was admissible, it offered to grant a two-day continuance to bring in a foundational witness for the video. The court said to Monticello, "You were adamantly opposed to that. I sat here and watched you consult with your attorney and it was you that made the decision, with the help of your attorney, and after consultation with your attorney, to not continue this trial for whatever reason . . . this was a joint decision."
Second, the trial court considered Monticello's claim that his counsel's failure to introduce additional corroborating evidence of his traumatic brain injury was ineffective assistance. The trial court noted that Monticello testified to the brain injury and his counsel mentioned the injury during voir dire and in her closing argument. The court also addressed the age of the records. The court said to Monticello, "it's somewhat difficult to get your records that are 30 years old, but you knew this, Mr. Monticello. You knew this and you asserted your right to a speedy and public jury trial."
We accept the trial court's factual findings that Monticello himself was responsible for the choices that he blamed on his counsel. Under the invited error doctrine in Lang, supra, 49 Cal.3d at page 1032, Monticello is estopped from claiming ineffective assistance when the actions of counsel that are at issue were taken in accordance with his express wishes. From this record, it appears that Monticello was determined to proceed to trial without delay, regardless of what other potentially exculpatory evidence could be gathered with more time. He communicated these wishes to his counsel, and she abided by them.
As we have discussed above, we also find as matter of law that Monticello did not receive ineffective assistance of counsel in this case and uphold the trial court's rejection of that claim with respect to the post-arrest video and the corroborating evidence of brain injury.
2. Juror Misconduct
a. Background
When the jury returned to the courtroom with a verdict, the foreperson handed the verdict forms to the court. The court asked each of the jurors to confirm their verdict orally. Juror 193 was asked, "Juror 193, is that your true and accurate verdict on all counts?" Juror 193 responded, "Yes."
After the trial was complete and the verdict rendered, Juror 193 contacted the court and expressed concerns about the trial. She asked to speak with the judge, but the judicial assistant instead offered to give the juror's contact information to the district attorney and defense counsel. Juror 193 agreed only to have her information given to defense counsel, and subsequently Monticello's trial counsel conducted an interview with her. Juror 193 submitted a written declaration, which was attached to Monticello's motion for a new trial.
In her declaration, Juror 193 explained her concerns and reservations about the deliberation process. Juror 193 felt that her verdict was not the one she wanted to give. She wrote, "I said 'yes' while shaking my head 'no.' . . . I felt like I had no choice." After leaving court, she cried in her car and felt sick.
Juror 193 listed her concerns with the jury's deliberations process. She felt the other jurors had interrupted her and there were several conversations happening at one time. During deliberations, she suggested asking for a read back of testimony. Some jurors agreed it would be helpful, but others noted it would be time-consuming. The request for read back was not sent to the court. She felt there was incomplete deliberation about some factual issues in the case. She also noted that she was confused about one of the jury instructions.
Juror 193 felt pressured by the other jurors to give a guilty verdict. When she voted "not guilty," other jurors "responded with dismissive comments such as, 'Oh, come on; it's obvious he was clearly resisting arrest.' "
Finally, she suspected that the jury foreperson knew another juror and an alternate juror, but she did not believe this was disclosed to the judge. In the motion for a new trial, the defense investigator reported that the jury foreperson did know two of the other jurors. The foreperson taught the children of one of the other jurors, and knew the alternate juror "through the educational system."
The trial court received this declaration and declined to investigate. The court noted, "I believe that I would have the absolute right to request an evidentiary hearing if I felt that it was necessary. But based on the points and authorities as well as the declarations that I have received, I do not believe that it is necessary to have an evidentiary hearing."
The trial court explained its reasoning at length, noting that it spent hours researching the issue of juror misconduct.
The court first addressed Juror 193's concern that jurors may have known each other prior to the trial. The court said that there was no evidence that prior relationships between the jurors "caused any kind of unfairness in the jury deliberations."
The court next addressed the juror's claim that the jury did not hear the read back that she wanted. The court noted there was no indication that read back would have changed other jurors' minds. The court also noted that the fact that Juror 193 wanted to use read back to bolster the arguments she was making in the jury room supports the conclusion that she was participating in the deliberations process.
The court then addressed Juror 193's allegation that jurors were talking over each other. The court found that talking over each other "doesn't rise to the level of misconduct, it rises to the level of jury deliberations."
The court noted, "I think we have to be very careful about invading the jury deliberation process. There's absolutely no doubt that [J]uror 193 at least twice voted guilty, once in the jury deliberation room and at another time when [the temporary judge who polled the jury] looked over and said, is this your verdict and she answered yes. There is no actual evidence of threats or coercion and all parties have the right to due process."
b. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for a New Trial Based on Juror Misconduct Allegations
The standard of review on a trial court's ruling on a motion for a new trial is abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 140.)
When juror affidavits alleging misconduct are presented, the court must first determine which parts of the statement are admissible evidence. Evidence Code section 1150, subdivision (a) states that, "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
The courts have set a high bar for finding that a juror's allegations of lack deliberations and juror intimidation are grounds for a new trial. (People v. Cox (1991) 53 Cal.3d 618, 694-695 (Cox).) In Cox, the California Supreme Court upheld a trial court's denial of a new trial on juror misconduct grounds in a death penalty case. (Id. at p. 694.) There, a juror alleged that smoker jurors intimidated non-smoker jurors by smoking at the deliberations table after they were asked not to, and also that a juror suggested the jury might be deadlocked for weeks if the holdout jurors refused to change their votes. (Id. at p. 693.)
The court applied Evidence Code section 1150, finding that "while the conduct of jurors disregarding an agreement on smoking or complaining about the pace of deliberations may be scrutinized, the effect of this conduct on subsequent votes may not be. When we exclude the latter, the former, standing alone, does not implicate juror misconduct . . . ." (Cox, supra, 53 Cal.3d at p. 695; see also People v. Aeschlimann (1972) 28 Cal.App.3d 460, 471-472 & fn. 2 (Aeschlimann) [finding that the fact that some jurors wanted to finish deliberations on a Friday "falls far short of establishing as a matter of law that the verdicts were decided by some 'means other than a fair expression of opinion on the part of all the jurors' (Pen. Code, § 1181, subd. 4)"].)
Similarly, in People v. Orchard (1971) 17 Cal.App.3d 568, the defense sought a new trial because the foreman had chastised one of the jurors during deliberations, which " 'so embarrassed and humiliated [her] in front of the other members of the jury that she voted 'guilty' . . . ." (Id. at p. 572, fn. 1.) After striking the sections of the affidavit that related to the effect of the foreman's conduct, the court concluded that the remaining allegations "simply describe[d] an account of interchange between jurors . . . . To permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression." (Id. at p. 574.)
Hostility during jury deliberations is not necessarily misconduct. In Thompson, supra, 49 Cal.4th at page 141, the California Supreme Court held that the jury's targeted questioning of a holdout juror was not misconduct. There, other jurors asked the holdout, " 'How can you do this?' 'How can you vote not guilty and still face the victim's mother in the courtroom?' 'Knowing he's a killer, how can you vote not guilty and let him go free?' The foreman also shoved the victim's photograph in her face and asked: 'What makes you think [the victim] is not dead?' [The holdout juror] also declared she was subject to personal attacks such as 'How can you not see it?' and 'How can you be so dumb?' [Another juror] declared the foreman stated: 'His guilt is as plain as day.' 'We need to leave.' 'We're not going to keep coming back to go over the same things again.' " (Id. at p. 139.) The Supreme Court explained, "Although some of the comments reported in the declarations were heated, nothing in them rises to the level of misconduct. As we have observed, 'jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.' " (Id. at p. 141, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1255.)
Here, the trial court did not abuse its discretion in denying the motion for a new trial based on juror misconduct.
Juror 193's allegations of juror intimidation did not rise to the level required to find jury misconduct. In Thompson, supra, 49 Cal.4th 79 at page 139, a juror was intensely personally targeted by the other jurors. The California Supreme Court found this was not jury misconduct. (Id. at p. 141.) Here, Juror 193 felt she was being interrupted and ignored. When she voted "not guilty," other jurors "responded with dismissive comments such as, 'Oh, come on; it's obvious he was clearly resisting arrest.' " As the trial court aptly stated, this "doesn't rise to the level of misconduct, it rises to the level of jury deliberations."
Monticello's claim of failure to deliberate also fails. As may often be the case, some of the jurors expressed their desire to wrap up deliberations in a timely manner. In Cox and Aeschlimann, the courts found that the expressed desire of some jurors to finish deliberations promptly was not jury misconduct. (Cox, supra, 53 Cal.3d at pp. 693-694; Aeschlimann, supra, 28 Cal.App.3d at pp. 471-472 & fn. 2.)
Monticello asserts that the fact Juror 193 did not receive the read back she wanted is misconduct. We disagree. The trial court gave the following instruction: "If there is a disagreement about the testimony at trial, you may ask that the court reporter's record be read to you." This instruction indicated that each juror had the right to seek read back. Yet Juror 193 did not ask the court for read back. Instead, she suggested read back during the course of deliberations, but did not follow through on her suggestion. The court did not deny Juror 193 her right to read back because she never brought the request to the court's attention.
Monticello also contends that "the District Attorney's version of the juror's declaration was overly redacted" and the trial court should have considered the entirety of the declaration. We discern no error arising from the presentation of the redacted declaration, as no motion to strike the declaration was made, and the trial court made reference to having considered the declaration in its entirety. --------
The trial court did not abuse its discretion in denying Monticello's motion for a new trial.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.