Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07907769 Gary D. Hoff, Judge.
Richard M. Doctoroff, 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, Louis M. Vasquez and Lloyd Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
INTRODUCTION
In the early morning hours of June 15, 2007, two separate fires damaged appellant/defendant Jason Morgan’s house and destroyed his car. Defendant was found lying in front of his house in a daze, having suffered first and second degree burns on his face, hands, and legs. It was stipulated that both fires were by arson. The disputed question was the identity of the arsonist. Defendant said he saw an unknown man tampering with his car, and that person could have been a member of the Hell’s Angels. Defendant said his ex-wife knew members of the Hell’s Angels, and claimed he was burned when he leaned into his car’s back seat to investigate a smoldering cigarette and the car exploded. Defendant also claimed that his finances were in good shape. However, the investigation revealed that defendant was having financial problems making payments on his two home mortgages, his car loan, his utilities, and several credit accounts. He was taking high-interest payday loans every few weeks and he was planning to move out of state. His burns were consistent with flash burns, or thermal injuries, from vapor exposure, which occurs from igniting a flammable liquid.
After a three-week jury trial, defendant was convicted of count I, arson of an inhabited structure (Pen. Code, § 451, subd. (b)); count II, arson of one’s own property, his car (§ 451, subd. (d)); count III, insurance fraud (§ 550, subd. (a)(1)); and count IV, insurance fraud (§ 550, subd. (a)(4)). The jury found true special allegations as to the amount of property lost or stolen. Defendant was sentenced to an aggregate term of four years.
All further statutory citations are to the Penal Code unless otherwise indicated.
Our review of the lengthy factual record in this case will be divided into four parts: (1) defendant’s living and financial status, (2) the arson investigation, (3) the investigation into defendant’s ex-wife and her acquaintances, and (4) the defense evidence.
On appeal, defendant argues his arson convictions are not supported by substantial direct evidence, and his due process rights were violated by the prosecution’s reliance on circumstantial evidence. Defendant also argues the court committed instructional errors as to intent, motive, and witness credibility. Defendant further argues the court failed to properly investigate potential jury misconduct when it dismissed a juror for sleeping and failed to question all the jurors as to whether the dismissed juror’s behavior was disruptive. We will affirm.
FACTS
PART I - Defendant’s living and financial status
Defendant and Tisha Garber were married in 2000. Defendant worked for Decipher Computer Company in Fresno. Garber testified defendant owned a handgun, he kept it next to his bed, and he always pulled it out if he heard noises outside their residence. Garber testified they verbally argued over financial pressures during their marriage. They had one physical altercation because of an affair that defendant had in 2002, but there was no physical abuse in their relationship.
Defendant and Garber separated in 2005, but they continued to see each other, and Garber thought they might reconcile. In May 2007, however, Garber realized things had changed between them and they would not get back together. Defendant filed for divorce. Garber did not ask for support payments or contest the divorce, they each kept their own debts, and they did not have any financial disagreements.
After the separation, defendant bought a house and lived there with his dog. Defendant had two mortgages on the house, and he obtained financing to buy a 2006 Mazda and a 2005 Honda motorcycle. Defendant still worked for Decipher. His employer testified that at the time of the fire, defendant’s annual gross salary was $57,500, and overtimes or bonuses could have boosted his yearly salary by $10,000.
In December 2006, defendant met through the Internet a new girlfriend, who lived in Colorado. In March 2007, Garber started dating Duane “Hollywood” Apodaca, who worked at a tattoo shop for Joey “Dizzy” Moreno.
In April 2007, defendant went to a concert and Garber was there with her own friends. Defendant hung around with Garber, and she introduced him to Apodaca, Moreno, and Andrea “Shop Girl” Martinez, who also worked at the tattoo shop. Garber testified that defendant and Apodaca just said hello to each other, they did not exchange words, and everyone split up after the introductions to attend the concert. Apodaca later thought he might have met defendant at the concert, but Garber did not introduce defendant as her ex-husband. Apodaca knew Garber was in the process of a divorce when they started dating, but he said that he did not care, he did not know defendant, and he was not jealous of him.
Garber testified that Jeremiah Findley, Apodaca’s roommate and another employee at the tattoo shop, was also at the concert. Findley was very intoxicated that night and did not hang around very long, and Garber could not remember if she introduced defendant to Findley. Findley was about six feet tall, lanky, and had a shaved head.
Moreno was at the concert with Jeffrey “Red” Morales (hereafter “Red” or Morales), the president of the Fresno chapter of the Hell’s Angels. Apodaca, Garber, and Moreno testified that Morales had a long ponytail and he was wearing a Hell’s Angels vest with patches that night. Apodaca thought Morales was Moreno’s partner in the tattoo shop, but Apodaca did not consider Morales a friend and he later quit the tattoo shop because he did not want to be involved with Morales.
Garber testified she had never before seen Morales, she was not introduced to him at the concert, and she did not introduce Morales to defendant or anyone else that night. Garber testified that no one in her family knew Morales, and she never saw or spoke to him again.
In May 2007, defendant flew to Colorado to meet his girlfriend. In late May 2007, defendant decided he was going to move to Colorado and live with his girlfriend, and he received “unofficial” permission from his employer that he could telecommute from Colorado. Defendant expected to receive “official” permission to telecommute during his work day of June 15, 2007.
PART II - The fires and the arson investigation
Around 1:15 a.m. on June 15, 2007, Orlando Rodriguez, who lived across the street from defendant, noticed that defendant’s front lights were off. Rodriguez did not see any unusual cars or motorcycles in the neighborhood, and the power was on at Rodriguez’s house. Around 2:45 a.m. on June 15, 2007, Domingo Perez, defendant’s next-door neighbor, was awakened by his family members, and they said that defendant’s house was on fire. The power was on at Perez’s house. Perez did not see anyone around defendant’s house, except for other neighbors who had called the fire department and gathered outside to watch.
At 2:54 a.m., Fresno Fire Department Captain Karey Wedemeyer’s fire truck was the first of several units to arrive at defendant’s house in response to the neighbors’ 911 calls. Captain Wedemeyer saw fire coming out of the house’s front window and onto the front porch. The firefighters discovered defendant’s car was parked in the backyard, outside of the detached garage, and it was also on fire.
A firefighter discovered defendant lying on the sidewalk in front of his house and driveway. Captain Wedemeyer spoke to defendant, and he identified himself as the homeowner. Wedemeyer described defendant’s demeanor as “altered, ” “[d]azed and confused, ” and “almost how you feel when you’re coming out of being asleep, just a little bit not as aware.” Wedemeyer did not smell alcohol on defendant and he did not appear intoxicated, but his speech was quiet, slow, and slurred.
Wedemeyer asked defendant if there were other people in the house. Defendant said he was concerned about his dog and he was not sure whether it was out of the house. Defendant said the dog had been asleep on the couch in the front room when he went to bed that night. Wedemeyer did not ask defendant about the fire, but defendant spontaneously said that a man in a leather vest started the fire. Wedemeyer did not ask about the car, and defendant did not say anything about his car or that it blew up on him.
Defendant suffered burns on his arms and legs. He was treated at the scene by emergency personnel and taken to a hospital for further treatment.
The initial investigation
The house fire was extinguished in a very short period of time. The house’s interior had moderate to major damage, primarily in the front living room. Captain Wedemeyer testified there was a strong smell of gasoline in the front living room and bathroom. The back door was closed but unlocked.
The firefighters determined the power was on at defendant’s house when they arrived. The breaker box was located outside, and all the breaker switches were in the “on” position except for one switch. Fire Captain Durham immediately shut off the power so they could fight the fire.
The car fire was also quickly extinguished, but the car’s interior was completely destroyed. The car’s gasoline cap was missing, and firefighters found the partially burned cap about 10 feet away from the front of the car, in the midst of shrubbery. A smoke detector was found in the backyard, and it was discolored and had some heat damage. A shovel was on the ground near the garage.
There was no damage to the detached one-car garage. The large vehicle door was the only garage entrance, and it was closed and unlocked. The firefighters found defendant’s dog in the far corner of the garage, unharmed but scared. The garage also contained defendant’s motorcycle, a leather jacket draped on top of the handles, a backpack with a laptop computer, and some garden tools. A half-full can of gas was in the garage but it was covered with cobwebs.
There was no “dog door” in either the house or the garage.
At 2:58 a.m., Fire Investigator Michael Hutcheson arrived while firefighters were actively fighting the house fire, and he immediately detected a strong chemical odor throughout the front living room, hallway, a bedroom, and on documents spread across the top of the dining room table. Around 4:00 a.m., Fire Investigator Christine Wilson arrived while the house and car fires were still smoldering, and she was “hit” with the smell of gasoline immediately upon entering the house.
Hutcheson and Wilson determined the heavily damaged couch in the front room was the area of the fire’s origin. There were two three-gallon plastic water jugs at either end of the couch in the front room. Both jugs were melted from the fire, and the liquid inside the containers smelled like gasoline and appeared to be the source of the strong chemical odor. A pair of gloves with a strong chemical odor was found under the front room debris. The chemical odor was also very strong in the undamaged bathroom, and a black towel hanging on a bathroom rack was saturated with the same strong chemical odor.
Hutcheson sifted through the smoldering rubble with a hydrocarbon detector, which indicates the presence of vapors produced by gasoline, solvents, and other chemical sources of hydrocarbons. The hydrocarbon detector gave strong “hits” on the front porch, the couch in the front room, the two melted jugs at either end of the couch, the dining room table, and the black towel in the bathroom.
An oily-type substance was visibly swirled on documents that were on top of the dining room table. The substance smelled like gasoline, and the documents had a strong chemical odor. The documents were dated May and June 2007, and consisted of delinquent statements and final notices for balances due for defendant’s bills, along with warnings that his residential power and utilities were going to be shut off because he had failed to pay his bills.
The Department of Justice (DOJ) determined there was gasoline residue on the black towel found in the bathroom and gasoline in the liquid samples removed from one of the melted jugs in the front room. The substance on the dining room table papers most likely contained gasoline residue, but there was an “interfering component” in the results, possibly from the envelopes, that prevented a definitive conclusion.
There were hydrocarbon vapors on the floorboards of defendant’s burned car and also on other debris removed from the damaged vehicle. The car’s windows had been blown out, and broken glass was about 10 to 12 feet away from the car. Wilson testified that a burning car’s windows usually break or melt within a vehicle, it was unusual for glass to be blown so far away from the car, and the location of the glass meant the car may have exploded. Hutcheson also testified the condition of the windows was consistent with over-pressurization and the explosion of the car. The DOJ’s tests on the debris removed from the car were inconclusive, most likely because the evidence was so badly burned.
Defendant’s injuries
Around 4:00 a.m., Deputy Fire Marshall Don MacAlpine, the fire department’s chief of investigations, went to the hospital emergency room to interview defendant about the fire and his injuries. MacAlpine testified that defendant was on a gurney; he had first and second degree burns on various parts of his body, including his face, forehead, right hand and up his right inner forearm, and below his knees on his lower legs. His head and facial hair were singed. Defendant said he had been injured on the back of his head, and MacAlpine observed a “very minor type of abrasion” and reddening on the back of his head.
MacAlpine testified the burns on defendant’s right hand, right lower leg, and the inside of his left lower leg were “flash burns” or “thermal” injuries to the skin “brought on by a very brief exposure to a high enough heat to damage the hair and the top layers of the skin.” MacAlpine testified that such burns are not caused by open flames, but instead caused by “more of an aerosol type of fuel such as vapor that has the right fuel load to sustain an ignition.” A person would suffer similar burns by pouring too much starter fluid on barbeque charcoal and waiting too long to light it. A “big poof” results, which is called a “vapor explosion.” The vapor explosion causes the flash burns. MacAlpine testified defendant’s flash burns were more prominent at the bottom of his right leg and less prominent on the upper portions of that leg. Defendant’s left leg had flash burns that were not as serious. There were no flash burns or thermal injuries on defendant’s left hand.
MacAlpine testified defendant had both first and second degree thermal injury burn patterns. The first degree burns were characterized by redness. The second degree burns were indicated by blistering and were caused by either more intense heat or longer exposure to the heat. The burns on defendant’s right hand were second degree burns, and there were open blisters from the base of the right thumb up to the top of his arm.
Defendant’s first statement to MacAlpine
Defendant gave three separate statements to Deputy Fire Marshall MacAlpine about the nature and circumstances of the fires. Defendant gave his first statement when MacAlpine interviewed him in the hospital emergency room and asked what happened before the fire started. Defendant said he fell asleep around 11:00 p.m., and he had locked all the doors and windows and made sure his dog was inside the house. Defendant said his bedside fan was on when he fell asleep. Defendant said he woke up because of an “indescribable” noise coming from the kitchen. The bedside fan was not working when he woke up. Defendant said he got up to investigate and realized the house’s power was off and the back door was partially open.
MacAlpine testified defendant appeared alert and able to answer questions. It was stipulated that defendant received two milligrams of morphine through an intravenous line when he was transported in the ambulance.
When MacAlpine investigated defendant’s house shortly after the fire, he found a portable fan in the bedroom and determined the control knob was in the “off” position.
Defendant said he walked into the backyard, where he had parked his car outside of the garage, and he saw an unknown adult male standing next to his car. The car’s rear passenger door was open and the vehicle’s interior dome light was on, which provided the only illumination. Defendant said the man was about 20 to 30 feet away from him, and the man just looked at defendant and did not move or speak to him. Defendant said the man was a white male adult in his mid to late forties; he was about five feet 10 inches tall, medium build, with long gray hair in a ponytail. The man was wearing a white T-shirt and a black leather vest with numerous patches.
Defendant said he started to move toward the man, but defendant had “become unconscious.” Defendant said he was not certain whether he was unconscious or not, and he did not know how long he was not awake. Defendant said he woke up at some point, and the man was gone and the car door was still open. Defendant said he walked toward his car, there was an unexplained explosion in the car, and defendant was knocked on his face toward the garage. Defendant said he became unconscious a second time, and he did not remember anything until he woke up. Defendant did not say anything about seeing an object on the back seat or that he leaned into the car just before it exploded.
During the hospital interview, MacAlpine asked defendant numerous questions about his personal life and financial status. Defendant said he was in the midst of divorce proceedings. Defendant said he had worked for a computer company for five years, he did not have any financial problems, his financial situation was good, and he just received notice that he was about to receive a raise and his annual salary would be $72,000.
At trial, defendant’s employer testified that defendant’s annual salary was never going to be $72,000.
Defendant said he bought the house for $218,000 in November 2006, and he had 100 percent financing, including an 80 percent first mortgage and a 20 percent second mortgage. Defendant said he made monthly payments of $1,400 on his first mortgage, and $447 on his second mortgage. Defendant said he bought the car, a 2006 Mazda, for either $18,000 or $19,000, just a few months before he bought the house. He made monthly car payments of $400. He recently bought a Honda motorcycle for about $10,000 and made monthly payments of $200. Defendant said he had credit card debts with monthly payments of $100.
When MacAlpine completed his interview with defendant, he left his telephone number and told defendant to call if he had more information. MacAlpine left the hospital and headed to defendant’s house to continue his investigation.
Defendant’s second statement to MacAlpine
About an hour after MacAlpine left defendant at the hospital, defendant called MacAlpine and offered additional details, particularly about an object he saw in the back seat of his car just before it exploded. Defendant said that after he regained consciousness in the backyard, he walked to his car and saw a lit cigarette wrapped in tissue paper on the center of the back seat. There was smoke coming from the cigarette ashes but the cigarette was not on fire. Defendant said he did not smell any unusual odors as he approached the car. Defendant said he reached into the car, disturbed the cigarette, and the car exploded. The explosion knocked him backwards and he became unconscious for the second time. Defendant said that when he woke up, no one was around but his car was on fire. He walked to the front of the house and his neighbors came outside to help him, but he did not notice his house was on fire.
Defendant’s third statement to MacAlpine
MacAlpine testified that he called defendant about two weeks after the fire to ask him additional questions. Defendant said he was moving from California to live with his girlfriend, and he planned to use the insurance money to repair and rent his house. Defendant never told MacAlpine that he had stopped making mortgage or car payments.
MacAlpine asked defendant about a shovel that was found in the backyard. Defendant said he had left the shovel in a different location the night before the fire, and the firefighters found it in the approximate area where he fell unconscious the first time.
As noted ante, defendant had a very minor abrasion and reddening on the back of his head. A shovel found in defendant’s backyard had several stains on the shovel head. The DOJ tested the shovel head, but no hair or blood was detected.
Defendant volunteered to MacAlpine that Garber, his ex-wife, had been verbally abusive to him during their marriage. Defendant said Garber had grown up with members of the Hell’s Angels, and she had a close relationship with a member known as “Red.”
Defendant’s statements to insurance representatives
Defendant gave lengthy and detailed statements to various insurance representatives about the fires and his financial situation. In June 2007, a few weeks after the fires, defendant met with Steven Davis, a senior special investigator for Farmer’s Insurance, about his homeowner’s insurance claim. Defendant said his credit situation was “in between bad and good, ” all his bills and payments were current, and his yearly salary was $62,000.
Davis asked defendant what happened on the night of the fire, and defendant responded with a lengthy narrative account that was somewhat different from his earlier statements to MacAlpine. Defendant said he went to bed around 11:00 p.m., leaving the dog on the living room couch. Defendant told Davis that he always went to sleep “with a big kind of like industrial fan on because I need to drown out all the other noise so I can sleep good.” Defendant said he woke up around 3:00 a.m. because the bedroom fan was not working. Defendant told Davis that he did not check the fan to determine if it was on or off. Defendant said he checked the light switch and realized the lights were not working. He went into the kitchen and the back door was slightly open.
MacAlpine examined the bedroom while the fire crews were still working at the house, and he determined the knob was in the “off” position.
Defendant told Davis that he walked out the back door and saw a man “bent over” the back of defendant’s car. The man was standing on the far side of the car, and he was wearing a leather vest with patches, but defendant could not get a good look at his face. Defendant said he started to walk toward the car and “he was hit from behind with something and knocked unconscious.”
Defendant told Davis that when he regained consciousness, his car’s back door was still open. Defendant said he walked to his car and saw a cigarette wrapped in tissue paper on the back seat. He reached into the car to pick up the cigarette, there was an explosion, and he was knocked away from the car. Defendant said when he woke up after the explosion, he staggered to the front of his house and did not notice his house was on fire. Defendant said his dog was later found inside the garage but he did not know who put the dog there. Defendant said he owned a firearm and kept it next to his bed, but he never thought about drawing it that night.
The firefighters found a loaded handgun in defendant’s nightstand.
Later in July 2007 defendant told Gina Pochini of GEICO automobile insurance company that the alleged arsonist looked like a Hell’s Angel. Defendant said his ex-wife had ties to the Hell’s Angels through her brother, but defendant did not have any fights or issues with his ex-wife so he did not think it was plausible that she was involved. Defendant said he was not sure if he locked his back door that night because he let his dog in and out of the house. Defendant said he did not smell any unusual odors in the house or around the car. Defendant also said the firefighters assumed someone hit his head with the shovel that was found in the backyard. Defendant said he was current on his car payments before the fire, but he stopped making payments after the fire.
Defendant also gave a sworn statement to Olivia Bissell, another representative from his homeowner’s insurance company, and said he completely locked up his house and car on the night of the fire. Defendant said he woke up and discovered the fan was not working, and he moved the switch on and off. He put on his cargo shorts before he went outside, and his cell phone was in the pocket. Defendant said when he was at the hospital, he used his cell phone and called his homeowner’s insurance company because he had his insurance card in his wallet.
Defendant gave Bissell the same description of the arsonist as he gave in previous interviews, and said he suspected the Hell’s Angels started the fire. Defendant said he met “Red” and “Jeremiah” at the April 2007 concert, his ex-wife was also at the concert, “Red” was the president of the Hell’s Angels and “Jeremiah” was a Hell’s Angels prospect. The arson suspect looked similar to “Red, ” but defendant said he could not be sure and he was not willing to say the suspect was “Red.”
Bissell asked defendant if he was late on any of his bills at the time of the fire. Defendant repeatedly said no, that he was up to date on all his bills, and denied receiving any late notices. Defendant said he had loans on his house, car, and motorcycle. Defendant added that in February 2007, he obtained a $2,000 “payday” loan at 99 percent interest because his finances were “off balance” after the divorce, he needed to pay down some past due bills, and he thought he could not get a cheaper loan. Defendant obtained an extension of the deferment for his $12,000 college loan in March 2007.
Bissell asked defendant how many times he was late on his second mortgage payments in the six months before the fire. Defendant initially said he was not sure. As the interview continued, defendant said he was late two or three times, and he could not remember if he incurred late fees. He made his June 2007 payment on the first mortgage before the fire, and he made a payment on the second mortgage after the fire, but both payments were late since they were due on the first of the month.
Bissell conducted a second sworn interview with defendant in October 2007. Defendant again recounted the story of what happened on the night of the fire, but said that he found his back door was fully open. Defendant said he was living in Colorado and unemployed.
Financial investigation
Fire Investigator Wilson investigated defendant’s financial records and testified he had “a lot of financial debt, ” he paid his debts “in a late fashion, ” and he took out monthly payday loans for nearly a year before the fire. Defendant’s monthly mortgage payments were both due on the first of the month. He was late with both payments in June 2007, and made payments on the first mortgage before the fire and the second mortgage after the fire. Defendant received a notice of default from his mortgage lender immediately after the fire. Prior to the fire, defendant failed to make both his monthly car and motorcycle payments, but he paid over $300 in late charges on his car loan. He did not make any car payments after the fire. Defendant obtained cash advance payday loans in 2007. Defendant had positive checking account balances but paid multiple overdraft fees in 2006 and 2007.
Jayme Plunkett, defendant’s employer at Decipher, testified that defendant was terminated soon after the fire for reasons independent of the company’s ongoing restructuring. Defendant was telecommuting from both Fresno and Colorado from April 2007 to the time of his termination.
The fire investigators’ opinion testimony
Deputy Fire Marshall MacAlpine testified the car and house fires were set independently of each other, and both fires were set by someone lighting ignitable fluids with the willful and malicious intent to destroy property. Based on his review of the facts and the reports of other investigators, MacAlpine believed the arsonist first poured a flammable liquid throughout the car’s interior but did not ignite the fire. The arsonist went into the house and poured flammable liquid, possibly gasoline, in several locations, and left two plastic containers of flammable liquid on either side of the couch in the front room. The arsonist then ignited the gasoline vapors in the house. There were six or seven points of origin of the house fire where ignitable liquids were detected. MacAlpine believed the smoke detector found in the backyard had been deliberately dismantled and thrown out.
MacAlpine explained that by the time the arsonist went outside to ignite the car, the vapors from the ignitable fluid had filled up the vehicle’s passenger compartment. When the arsonist ignited the vapors in the car, a violent explosion occurred from “vapor ignition” and “over pressurization, ” and the explosion blew out the car’s windows and likely inflicted injuries on the surprised arsonist. MacAlpine believed it was reasonable to presume the arsonist did not expect the car to explode that way.
MacAlpine testified that, based upon his investigation at the fire scene, defendant was a “significant person of interest” because the data “just didn’t line up for me, ” but MacAlpine continued with the investigation. MacAlpine testified defendant became a suspect at some point because of defendant’s “burn patterns and his account of what happened. That was a real tough one for me to get around and eventually became impossible.”
MacAlpine testified that, in his opinion, defendant started both fires because he wanted to move to Colorado, but he had to eliminate his serious debt situation with his house and car. MacAlpine believed that defendant knew he could not sell his house because of the two mortgages. Defendant kept what he wanted in the garage. MacAlpine conceded he did not have any evidence that defendant tried to sell his house, but believed the two arson fires were “more a matter of convenience than anything else, which is not uncommon with those who have shared with me why they did their fires.” Defendant thought the car and house would be completely destroyed based on the amount of flammable liquid spread around them. “Whatever he had in mind at that time what his insurance policy would do. I’ve been surprised by what people thought their insurance policy was going to do.”
MacAlpine testified he decided to have defendant arrested for arson based on “the facts of the incident, [defendant’s] burn patterns, ” and “the burn patterns [were] unexplainable in any other theory other than him igniting that vehicle and the house.”
At trial, Fire Investigator Wilson testified it would be very difficult to ignite gasoline vapors with a smoldering cigarette. Wilson conceded a cigarette could ignite flash paper, and flash paper could ignite gasoline vapors. However, Wilson explained that an open flame could ignite gasoline vapors only if the gasoline was within the flammability range, which referred to the amount of oxygen mixed in with the gasoline vapors. If something was loosely placed over a burning cigarette, there might be enough oxygen to keep the cigarette smoldering so that the heat will continue to build, but the windows on defendant’s car were closed that night, which would have prevented oxygen from getting into the gasoline-soaked vehicle. While defendant said that one car door was open, his act of walking up to the car and leaning into the back seat would not have created sufficient turbulence inside the car.
PART III - Defendant’s ex-wife and her acquaintances
Defendant repeatedly claimed that the alleged arsonist was wearing a black leather vest with patches, had a long ponytail, and looked like a member of the Hell’s Angels. Fire Investigator Wilson asked defendant for more information about the arson suspect standing at his car and that man’s possible connection to the Hell’s Angels. Defendant said his ex-wife hung out at a tattoo parlor, he saw her at a concert in April 2007, and she introduced him to “Red” and “Jeremiah.” Defendant also said he did not have any altercations with these men and he did not know why they would do this to him.
MacAlpine initially treated defendant as a crime victim and held a press conference to inform the public about a possibly violent suspect who had committed arson and home invasion. MacAlpine gave defendant’s physical and clothing description of the suspect, but he did not publicly identify “Red” or say the suspect might be a member of the Hell’s Angels.
As a result of MacAlpine’s press conference, the Fresno Bee published an article that described the incident and included defendant’s description of the suspect. Garber, defendant’s ex-wife, learned about the fire when she read the newspaper, and she immediately called defendant to check on him. Garber testified that during the conversation, defendant called her a “bitch” and said that Garber and the people she hung out with had something to do with the fire. Defendant accused Garber of saying “something to somebody, that they wanted payback or something.”
Garber testified she was not a member of the Hell’s Angels; she never told Apodaca, Moreno, or anyone else that she wanted them to burn defendant’s car and house and beat him up; and Apodaca did not even know defendant. However, she was very upset about defendant’s accusations and told Apodaca about the newspaper article and defendant’s statements.
Apodaca testified that he told Moreno about the newspaper article, and Apodaca thought it was “funny because it kind of described” Jeffrey “Red” Morales as the arson suspect. Moreno later told Apodaca that he read the article, and both Moreno and Apodaca laughed about it “because apparently [defendant] called [Garber] and blamed it on her and said it was all of her [Hell’s Angels] buddies that did that to him and that’s why it was kind of funny to us.”
Apodaca testified he was not a member of the Hell’s Angels, Garber never said that defendant was physically abusive toward her, he never confronted defendant, he did not burn defendant’s car or house, he was not angry at defendant for any reason, he did not tell Moreno or Morales anything about defendant, he never talked to Morales about the fire, and he did not even know where defendant lived.
Moreno’s girlfriend
A. C., a Fresno schoolteacher, did not know defendant or his ex-wife and did not have any personal knowledge about the arson fires. However, she became involved with the arson investigation because of her own circle of friends. At the time of the fire, A. C. was dating Moreno, who employed both Apodaca and Findley at his tattoo shop. A. C. knew that one of Moreno’s friends was “Red, ” and that he was a member of the Hell’s Angels. A. C. testified that Moreno was not a member of the Hell’s Angels, but his friends and associates were members and they hung around the tattoo shop. A. C. knew that Moreno liked to tell false stories to make himself seem important and to get in good with the Hell’s Angels.
A. C. testified that Moreno told her to read the newspaper article about the fire at defendant’s house, and Moreno said the arson suspects described in the article were “Red” and “Red’s” friend, Jeremiah Findley. Moreno told A. C. that prior to the fire “Red” and Findley “had been talking” in the tattoo shop “about a mission.” They asked Moreno to go on the mission with them, and Moreno declined and did not go with them. Moreno said Andrea Martinez, one of his employees, was present when “Red” and Findley talked about the fire.
A. C. testified she did not have personal knowledge about “Red’s” statements to Moreno, but she realized the newspaper article’s description of the arson suspect clearly matched “Red, ” because she had met him a few times at the tattoo shop.
On or about July 27, 2007, A. C. called the fire department’s investigator and reported what Moreno told her about “Red, ” Findley, and the fire. A. C. reported that Moreno said “Red” and Findley wanted to harm defendant because he was in an abusive relationship with Garber, and both Apodaca and Findley wanted to date Garber. A. C. said the Hell’s Angels extorted protection money from Moreno’s tattoo store, and she would be dead if “Red” found out she was talking to authorities because she believed motorcycle clubs go around and hurt people. A. C. did not tell Moreno or anyone else that she spoke to the authorities.
As a result of A. C.’s call, Fire Investigator Wilson interviewed Moreno in August 2007. Moreno acknowledged Morales was his business partner in the tattoo shop. Moreno said that Apodaca told him to read the newspaper article about the fire, and Apodaca also said that Garber’s ex-husband was trying to blame Morales for the fire. Moreno told Wilson that no one would wear their patches or colors during such a crime, and Morales was very well known in Fresno. Moreno said that according to Apodaca, Garber’s ex-husband was crazy and capable of committing fraud, and defendant was stalking Garber when he showed up at the concert in April 2007.
At trial, A. C. testified that about a month after she called the fire investigator, she spoke to Andrea Martinez, who worked for Moreno and later became his girlfriend. Martinez told A. C. that Moreno’s stories about “Red” and the fire were not true. After A. C. learned this information, however, she never asked Moreno whether the story was false and she did not immediately tell the authorities the information might be false.
Fire Investigator Wilson testified she spoke to A. C. in April 2008, just before defendant’s trial, and A. C. said she had learned that Moreno was not truthful when he told her about “Red” and Findley burning defendant’s house, she did not have any firsthand information about these people and their statements, and she simply repeated the information Moreno gave her about Garber and the Hell’s Angels when she previously talked to the investigators.
Chief Investigator MacAlpine directed the fire department’s investigation concerning the unknown arson suspect described by defendant. MacAlpine worked with police officers, insurance agents, and an expert on the Hell’s Angels and other domestic gangs. The investigation centered on Morales, who fit the description given by defendant, and the task force conducted a very active and aggressive investigation into Morales and his known associates. MacAlpine initially ordered the investigative team not to contact Morales or other members of the Hell’s Angels without his approval, because he was concerned defendant could get hurt if “we started questioning Hells Angels based upon the defendant pointing fingers at them and that was wrong.” MacAlpine subsequently interviewed Morales.
MacAlpine testified that he realized he went to high school with Morales in 1976, but that prior connection did not affect his investigation in any way.
Defendant was shown a six-person photographic lineup that included Jeffrey “Red” Morales. Defendant did not pick Morales but selected someone else as the person he saw in the backyard just before his car exploded.
Trial testimony of Moreno and Morales
Moreno testified at trial that he did not know defendant and had never been to his house. Moreno knew Garber was dating Apodaca, but he did not know that she was defendant’s ex-wife. Moreno testified that Morales was the president of the Fresno County Hell’s Angels, and Morales was briefly Moreno’s partner in the tattoo shop.
Moreno testified his legal name was “John Mabie.” Moreno admitted a misdemeanor conviction for lewd acts in 1998 and a misdemeanor conviction for criminal threats in 2001.
Moreno testified he learned about the fire when Apodaca called and told him to buy a newspaper because a certain article would be interesting. Moreno read the story about the fire and realized the suspect’s description matched Morales. Moreno and Apodaca laughed about it because “[t]here’s only one person I’ve known that fits that description.” Moreno thought it was “ridiculous that somebody would say something like that about somebody, especially Red, knowing Red and his demeanor and everything that I know of... it’s just absurd.” Apodaca told him that the arson victim was Garber’s ex-husband, Garber said defendant was abusive toward her, and defendant was stalking her at the April 2007 concert.
Moreno admitted that he talked to A. C. about the newspaper article, and said he could not believe that “Red” was involved and it was “ridiculous” that someone would start a fire wearing Hell’s Angels attire. Moreno testified “Red” never asked him to go on a “mission” or said that he set fire to defendant’s house. Moreno testified he never told A. C. that “Red” made such statements, and he never said that Garber had been abused by her ex-husband or that Apodaca was angry at defendant.
Morales also testified at trial and acknowledged that he was the president of the Fresno chapter of the Hell’s Angels in 2007. By the time of trial, however, he had quit the organization and was no longer a member. Morales denied that he was Moreno’s partner in the tattoo shop, and testified he just sold T-shirts there.
Morales testified he did not know defendant, Garber, or A. C. Morales attended the April 2007 concert and he saw Moreno there, but he did not recall meeting either Garber or defendant. Morales testified his hair was in a ponytail and he probably wore his black leather vest with patches at the concert.
Morales testified he did not set fire to defendant’s house or car, he never talked about such a thing with Findley or Moreno, and he never asked Moreno to go on a “mission” with him. Someone at the tattoo shop told Morales about the newspaper article, and Fire Investigator MacAlpine later questioned him about the case. Morales was not happy to learn that his name was being thrown around in an arson investigation. Morales never told MacAlpine that he was going to retaliate against defendant or his attorney.
Morales testified he attended a large motorcycle event in Bakersfield in mid-June 2007, around the time of the fire, and he knew that he had credit card receipts to support his story.
PART IV - Defense evidence
Marvin Pritchett, who had spent 21 years as an arson investigator for the Kern County Fire Department, investigated the arson fire at defendant’s house on behalf of Farmer’s Insurance. Pritchett interviewed defendant on June 18, 2007, three days after the fire. Defendant told Pritchett that he woke up, the power was off in the house, he looked out the back door, he saw someone messing around with his car, and someone came up behind him and hit him with what he thought was a shovel. Defendant said he woke up in the backyard and saw the car door was open. He looked in the car, he saw a cigarette with paper wrapped around it, he picked it up, and the car burst into flames. Defendant did not describe the man who was messing around with his car or say that he knew or thought he knew that person.
Pritchett testified he also inspected defendant’s home on June 18, 2007. Pritchett believed the house fire started on the exterior wall of the front room, under the front window and facing the front porch. Pritchett did not inspect the house with a hydrocarbon detector, he never smelled gasoline, he never saw the black towel that smelled of gasoline, he reached his opinions without speaking to any of the firefighters, and he did not know about the two melted jugs of gasoline found by the couch. Pritchett conceded his opinion about the house fire could be wrong, the fire could have been ignited with gasoline in the front room, and the fire could have burned through the floor and wall and onto the front porch.
Defendant’s testimony
Defendant used his trial testimony to repeat the same basic story about the fire that he had told MacAlpine and the insurance investigators: that a man was leaning in his car, and the car blew up when defendant leaned in and touched the smoldering cigarette on the back seat. Defendant also testified to the following additions and differences from his prior statements. Defendant said he left his “work bag” in the garage next to the motorcycle, the bag contained his glasses and laptop computer, he always kept that laptop with him in case of emergency work projects, and he had planned to ride his motorcycle to work the next day.
Defendant testified he left his bedside fan on when he went to bed that night. He woke up and realized the fan was not working; he “fiddled” with the dial but it did not come on. Defendant did not smell gasoline, and he did not see or hear his dog as he walked through the house. He found the back door “about halfway open.”
Defendant was impeached with prior statement to Bissell, one of the insurance investigators, that he did not check the fan to see if it was on or off.
Defendant again described the alleged arsonist as wearing “a black motorcycle club type vest” with some patches. Defendant said he was hit from behind as he walked to the car. Defendant did not know what he was hit with, but MacAlpine later told him that a shovel was found in the yard, so defendant figured he was hit with that shovel. Defendant testified that when he woke up, he did not go back into the house for his gun even though he had seen a strange man leaning in his car.
The DOJ’s tests on the shovel were negative for hair or blood.
Defendant testified he vaguely remembered speaking with MacAlpine at the hospital about the fire and his finances, and he did his best to tell the truth, but he was still in shock and pain from the head blow and the explosion, and he did not remember seeing something on the back seat at that time. Defendant started to feel better after MacAlpine left the hospital, and he called MacAlpine to report additional details about the incident, including the details about the smoldering cigarette and the car explosion.
Defendant testified he had his cell phone with him at the hospital because it was in the pocket of his cargo shorts when he got dressed and walked outside his house that night. Defendant did not reach for his cell phone and call 911 when he saw the man at his car, after he was hit in the head, or when the car exploded, because he did not realize the cell phone was in his pocket and he was not thinking straight at that earlier time. When his mother arrived at the hospital, she advised him to call his insurance company, and he did so because he had the card in his wallet.
Defendant testified his ex-wife called him after the fire and asked what happened. Defendant started to tell her but she interrupted and asked “if they got my motorcycle, ” and the tone of the conversation changed. “I mean, I hadn’t really gotten too much into describing what had happened, I was still basically walking out into the kitchen and she asked that, and so I thought that was just kind of suspicious, ” because defendant thought she should not have that kind of information. “Basically I told her I thought she was involved.” “I told her I thought she was involved and that I was going to tell the fire investigator that. And I may have called her a bitch, I’m not sure, and that was about when I hung up on her.”
Defendant testified he never told anyone that the suspect was “Red” of the Hell’s Angels or that he previously met the arsonist. Defendant testified he went by himself to the April 2007 concert, and he saw Garber with some friends. Garber introduced him to Moreno, Findley, and “Red, ” who was wearing a vest. Garber had previously told defendant about “Red”: that he was the president of the Fresno chapter of the Hell’s Angels and her aunt grew up with and was best friends with “Red’s” sister. Defendant testified Garber’s brother was the president of a sport bike club and wore a biker vest, Garber had friends in the Hell’s Angels, and those guys were “just not the type of people I would associate with.”
Defendant recalled that Wilson showed him a photographic lineup for the arson suspect. He did not recognize anyone but he selected someone who “looked somewhat like the guy.” He did not know that “Red’s” photograph was in the lineup, and he did not identify anyone as “Red.”
Defendant testified that as of June 2007 his yearly salary was $57,500, and his employer told him that his base salary was going to be raised to $72,000. Defendant testified that at the time of the fire his finances were “tight, ” he was “making ends meet, a little late here and there, ” but he had never looked at his entire financial situation, “[s]o what I was thinking at the time wasn’t really necessarily an accurate picture of where my finances were, ” and it was “a bit of a shock” to see his actual financial situation presented at trial. His car was not in danger of being repossessed, he was not delinquent on his house payments, some of his credit card accounts were overdue but he was making payments, and he had to pay late charges on his car payments.
On cross-examination, defendant admitted his payments for some bills and utilities were past due, and he made late payments on his mortgages and car loan. Defendant conceded that he told MacAlpine that his finances were sound, he told Bissell that he was not late on any of his financial obligations, and he told Davis that all his utilities were current at the time of the fire. Defendant said he was financially “out of balance” because of stress and his divorce. Defendant acknowledged he was regularly taking monthly payday loans and he was not concerned about the interest rates. Defendant admitted he told Bissell that his last payday loan was in May 2007, even though he actually obtained another loan in early June 2007.
Defendant admitted he stopped making payments on his mortgages and car loan after the fires even though he knew he was still responsible to make those payments. He stopped making the car payments because “I didn’t feel like paying for something I didn’t have, ” and his grandfather told him to stop making mortgage payments.
DISCUSSION
I. Substantial evidence that defendant was the arsonist
Defendant contends his convictions for arson and insurance fraud, which were based on his identity as the arsonist, violated due process and must be reversed because the convictions were the result of “tenuous circumstantial evidence” that he committed the arsons for financial benefit. Defendant argues the jury could have only reached one reasonable conclusion in this case-that defendant was not the arsonist-and there is no evidence to support the verdicts.
A. Circumstantial Evidence
Defendant’s argument is based on the premise that reliance upon circumstantial evidence to support a criminal conviction violates due process. Such an argument is meritless. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) “Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) This court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Thus, this court may rely upon circumstantial evidence to determine if defendant’s convictions are supported by substantial evidence.
B. Arson
“A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned... any structure... or property.” (§ 451.) Arson is a general intent crime and requires an intent “to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. [Citations.]” (People v. Atkins (2001) 25 Cal.4th 76, 89.)
As a general matter, “[t]he intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense. [Citations.]” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) As to arson, “[c]ircumstantial evidence may be relied upon to establish culpability” for the offense. (People v. Belton (1980) 105 Cal.App.3d 376, 379-380.) “[T]he very nature of the crime of arson ordinarily dictates that the evidence will be circumstantial. [Citation.]” (People v. Beagle (1972) 6 Cal.3d 441, 449, overruled on other grounds by People v. Castro (1985) 38 Cal.3d 301, 307-308.) Arson is generally “committed in stealth, without warning and often under the cloak of darkness, ” so that “perpetrators of such clandestine acts frequently escape detection by human eye.” (People v. Andrews (1965) 234 Cal.App.2d 69, 75.) “Consequently, the lack of an eyewitness placing defendant at the scene or other direct evidence to establish his guilt does not render the jury’s verdict of guilty of arson constitutionally deficient. [Citation.]” (People v. Solis (2001) 90 Cal.App.4th 1002, 1010.)
C. Analysis
Defendant contends there is no evidence to prove he committed any crime or was the arsonist, the prosecution relied on “flimsy” circumstantial evidence, he had no prior convictions, he was cooperative with law enforcement authorities, his statements about the incident were consistent, he did not receive a financial windfall or eradicate his debts by burning his own property, the prosecution’s financial theories were not logical because his debts “were not extinguished by the fire, ” and “[w]inter in Colorado is extremely difficult without a car.”
However, the existence of alternative theories or conclusions does not mean defendant’s convictions are not supported by substantial evidence. It was undisputed that the fires in defendant’s house and his car were set intentionally. There was overwhelming direct and circumstantial evidence to establish defendant’s identity as the arsonist. Defendant had filed for divorce and met a new girlfriend who lived in Colorado. In late May 2007, he decided to move to Colorado to live with her, he received “unofficial” permission from his employer to telecommute from Colorado, and he expected to receive “official” permission during his workday of June 15, 2007.
However, defendant was hampered by crippling mortgage payments and debts. Defendant gave numerous inconsistent statements about his income and financial situation. Defendant told MacAlpine that his salary was about to be raised to $72,000, but his employer testified defendant was never going to be paid that much. He told Davis, the homeowner’s insurance representative, that all his bills and payments were current. He told Bissell, another insurance representative, that he was not late on any of his bills and denied receiving any late notices at the time of the fire. However, the documents found on top of defendant’s dining room table, which were covered with an apparent ignitable fluid, showed that defendant was behind on many of his bills and credit accounts. The financial investigation showed that he was regularly taking “payday” loans with extremely high interest rates, he failed to timely make his mortgage and car payments, and he paid late charges on his car loan. While defendant contends he knew that that the fires would not have extinguished his debts, his conduct belied such a belief because he admittedly stopped making payments on his mortgages and car loan after the fires.
Defendant’s inconsistent statements
Defendant insists he gave consistent statements about what happened just before the fire. However, the entirety of the record shows he failed to explain several critical factual discrepancies. Defendant’s ex-wife testified that he kept a handgun next to his bed and he always grabbed it if he heard noises outside. A loaded handgun was found in defendant’s nightstand. Defendant claimed he looked outside and saw a strange man in his backyard, but he did not retreat into the house to grab his gun. Defendant also admitted his cell phone was in his pocket when he walked out the back door, but he did not reach for the cell phone to call for help, even though he saw a strange man in his backyard, he was allegedly hit on the head, and his car exploded. At the hospital, however, he used his cell phone to call his homeowner’s insurance company to file a claim.
Defendant claimed he did not smell gasoline or anything unusual in his house or his car, but the firefighters were immediately hit by the strong chemical smell when they entered the house and examined the car. There was no fire damage in the bathroom, but the room had a strong chemical odor and a hand towel was soaked with gasoline. Under defendant’s theory of the case, one of the arsonists must have paused to clean up in the bathroom, used a hand towel to wipe off the gasoline from his hands, and neatly left the gasoline-soaked towel on a bathroom rack before they set defendant’s house on fire.
Defendant claimed his dog was sleeping on the front room couch when he went to bed that night, but he did not see or hear his dog in the house when he left his bedroom, walked through the house, and went outside to investigate the power outage and the strange man standing by his car. The large vehicle door was the only entrance into the garage, it was closed and unlocked, and defendant could not explain why the firefighters found his unharmed but scared dog in the garage, along with his motorcycle, laptop computer, and glasses. Neither the garage nor the house had a “dog” door, and there was no evidence the firefighters placed the dog inside the garage. The only other possibility was that one of the arsonists gained access to defendant’s house while he was asleep, the dog did not bark at or resist the intruders, the intruders placed the dog in the garage and closed the door so it would not run away, they did not bother to spread ignitable fluid in the garage and on defendant’s motorcycle, but they tinkered instead with his car-all of which purportedly occurred before defendant woke up because his bedside fan allegedly was not working. Defendant testified that he had adopted the dog as a puppy but he later took the dog back to the pound because it became too aggressive. But under defendant’s theory, this alleged aggressive dog passively submitted to two intruders.
As for the bedside fan, defendant initially stated that he woke up because the fan was not working. He got up, walked into the kitchen, tried the lights, and realized the power was off in the house. However, MacAlpine discovered the fan’s switch was in the “off” position. In his subsequent statements, defendant said he fiddled with the fan’s switch before he left his bedroom. Defendant claimed the power was not working in his entire house, but the power was on at his neighbor’s houses next door and across the street. When the firefighters arrived, they discovered the power was on at defendant’s house, and they had to shut off the power to fight the fire.
Defendant claimed he lost consciousness the first time because someone hit his head with a shovel. However, MacAlpine observed only a very minor abrasion and reddening on the back of defendant’s head, and DOJ’s tests on the shovel head were negative for blood or hair.
When Captain Wedemeyer found defendant in front of his house, she did not ask him how the fire started, but defendant spontaneously said a man in a leather vest started the fire. When MacAlpine interviewed defendant at the hospital, defendant said he was walking toward his car and it exploded for some reason, but he did not say anything about the smoldering cigarette. About an hour later, defendant called MacAlpine and told him about the cigarette and reaching into the back seat before the car exploded.
Defendant claimed he did not smell any gasoline when he leaned into his car, but that he suffered the burns on his face, hands, and legs because he used his right hand to reach inside the car and touch the burning cigarette wrapped in tissue paper, and the car exploded. However, MacAlpine explained that the burns on defendant’s right hand, right lower leg, and the inside of his left lower leg were “flash burns” or “thermal” injuries to the skin “brought on by a very brief exposure to a high enough heat to damage the hair and the top layers of the skin, ” from igniting the gasoline vapors in the car. Defendant had both first and second degree thermal injury burn patterns. The first degree burns were characterized by redness. The second degree burns were indicated by blistering and caused by either more intense heat or longer exposure to the heat. The burns on defendant’s right hand were second degree burns, and there were open blisters from the base of the right thumb up to the top of his arm. Yet defendant insisted he did not smell gasoline in the car.
Finally, defendant’s entire theory of the case was that his ex-wife’s friends in the Hell’s Angels were the arsonists because she told them that defendant physically abused her during their marriage, even though defendant repeatedly admitted there were no disputes with ex-wife and they were going through an amicable divorce. But defendant immediately accused his ex-wife of complicity in the fire because she read about the incident and called to check on his welfare. Defendant claimed he became suspicious simply because his ex-wife asked “if they got my motorcycle.” “I mean, I hadn’t really gotten too much into describing what had happened, I was still basically walking out into the kitchen and she asked that, and so I thought that was just kind of suspicious, ” because defendant thought she should not have that kind of information. This assertion ignores the fact that the Fresno Bee carried the story about MacAlpine’s press conference and reported defendant had been the victim of a violent home invasion and two separate arson fires. It would have been logical for his ex-wife to ask whether his motorcycle was also damaged in the conflagration.
Defendant also insists his convictions must be reversed based on the various statements and admissions made by his ex-wife’s acquaintances about their purported involvement in the arson fires. Defendant only saw Jeffrey “Red” Morales on one occasion, at a concert about two months before the fire. It is undisputed that Morales was wearing a Hell’s Angels vest with patches and his long hair was in a ponytail at the concert. Defendant said the arson suspect standing at his car was wearing a leather vest with patches and had long hair pulled back into a ponytail. When MacAlpine released defendant’s description of the arson suspect to the press, Morales’s associates read the newspaper story and immediately realized the description matched Morales. Moreno, who was known for exaggerating to look good for his friends in the Hell’s Angels, claimed that Moreno and Findley invited him to join them in a “mission, ” and that they later bragged about starting the fire. While A. C. informed the fire department about Moreno’s statements regarding “Red, ” Findley, and their “mission, ” A. C. did not have personal knowledge of this information, she knew about Moreno’s tendencies to brag and exaggerate, and she later learned that Moreno made up the story. More importantly, however, Morales had an apparent alibi that he was in Bakersfield that weekend, and defendant failed to select Morales’s picture when he was shown a photographic lineup for the arson suspect.
As in most arson cases, there was no direct evidence or eyewitness testimony that defendant set the fires in his house and car. But there was overwhelming circumstantial evidence from which the jury could have reasonably concluded that defendant was the arsonist, based on the nature of his flash burns and thermal injuries, his inconsistent statements about his financial situation, his imminent departure for Colorado, and major inconsistencies in his account of the period just before his car exploded.
II. Due Process and Instructions on motive and intent
Defendant contends the court gave conflicting instructions on motive and intent as elements of the offenses of arson and insurance fraud. Defendant’s argument is based on the premise that motive is an element of both offenses, since defendant was charged with arson of his own property, which requires an intent to defraud (§ 451, subd. (d)), and insurance fraud requires the perpetrator to knowingly present a false or fraudulent claim (§ 550, subd. (a)). Defendant thus asserts these elements mean that motive is an element of both offenses.
Defendant further argues that while the jury was properly instructed on the elements of the offenses, CALCRIM No. 370 undermined those instructions because it told the jury that motive was not an element of the charged offenses and the prosecution was not required to prove motive beyond a reasonable doubt. Defendant argues the conflicting instructions violated his due process rights and requires reversal of his convictions.
Defendant’s argument is based on People v. Mauer (1995) 32 Cal.App.4th 1121, where the defendant was convicted of misdemeanor child annoyance in violation of section 647.6, and motive was a specific element of that offense. While the jury was instructed on motive as an element, it also received the pattern instruction that the prosecution did not have the burden to prove motive. Mauer held that while motive was generally not an element of a criminal offense, the pattern instruction was erroneous because motive was an element of the particular offense in that case, and the trial court should have clarified the confusion. (Id. at pp. 1125-1127.)
In this case, however, defendant concedes the California Supreme Court has held that motive is not an element of arson; that motive, intent, and malice are separate and distinct mental states in this case; and the pattern instruction for motive did not conflict with intent and malice instructions. (People v. Beagle, supra, 6 Cal.3d at p. 450; People v. Hillhouse (2002) 27 Cal.4th 469, 503-504; People v. Guerra (2006) 37 Cal.4th 1067, 1135 [pattern instruction for motive does not conflict with intent instructions]; People v. Cash (2002) 28 Cal.4th 703, 739 [same].) “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse, supra, at p. 504.)
Defendant acknowledges this court is bound by the discussion of motive, intent, and malice in Hillhouse and Beagle, but he raises the issue to preserve further review of his contentions.
III. CALCRIM No. 226
The trial court in this case complied with its sua sponte duty to instruct the jury with CALCRIM No. 226 as to the factors to evaluate the credibility of witnesses. (See People v. Horning (2004) 34 Cal.4th 871, 910.) The parties agree the court erroneously included a word in the last paragraph of that instruction, which addresses the jury’s determination of whether a witness deliberately lied, but they disagree on the impact of that mistake. Defendant contends the court’s mistake prevented the jury from rejecting the testimony of certain prosecution witnesses. Respondent argues the error was harmless in light of the entirety of the instructions.
A. Background
We begin with the language of CALCRIM No. 226, a lengthy instruction which contains “a list of factors other than deliberate lying which the jury should consider in weighing the credibility of every witness, including the witness’s capacity to perceive, remember, and describe events, his demeanor, his ability to understand and answer questions, his possible bias or prejudice (including that stemming from a personal relationship with someone involved in the case), his attitude about the case, any consistent or inconsistent past statements, and the reasonableness of his testimony in light of all the other evidence.” (People v. Vang (2009) 171 Cal.App.4th 1120, 1131 (Vang).) The instruction “then warns the jury against rejecting testimony merely because of inconsistencies or conflicts because witnesses frequently and innocently forget things or remember them differently from each other. In total, then, CALCRIM No. 226-prior to its final paragraph about deliberate lying-covers every possible source of good faith inaccuracy in testimony and correctly informs the jury how to assess them.” (Ibid.)
At issue in this case is the last paragraph of CALCRIM No. 226, which addresses deliberate lying on the stand, and “tells the jurors that if they find a witness lied about a material part of his testimony, they may, but need not, choose to disbelieve all of his testimony. Furthermore, if they find that though he willfully lied on one point he told the truth on others, his lie on the former point does not bar them from believing the rest.” (Vang, supra, 171 Cal.App.4th at p. 1130.) The instruction “allows the jury to disbelieve a witness who deliberately lies about something significant because experience has taught us that a deliberate liar cannot be trusted.” (Ibid.)
In the instant case, the court read CALCRIM No. 226 to the jury. The last paragraph of the printed version of CALCRIM No. 226 states:
“If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (Italics added.)
When the court read CALCRIM No. 226 to the jury, however, it misstated this last paragraph as follows:
“If you decide that a witness deliberately lied about something significant in this case, you should not consider not believing anything the witness says. [¶ ] Or if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest. (Italics and bold added.)
Neither the court nor the parties realized the court erroneously added the bolded word “not” into the last paragraph of the instruction, and defendant did not object.
B. Analysis
Defendant contends the court’s inadvertent insertion of the bolded “not” in the final paragraph of CALCRIM No. 226 was prejudicial because it prevented the jury from rejecting the trial testimony of Garber, Moreno, Morales, and Apodaca, when they denied any knowledge or complicity in the arson fires. Defendant concedes he did not object to the court’s mistake, but argues he has not forfeited review of this issue because the instructional error affected his substantive rights. (See, e.g., § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) Although we disagree that defendant’s substantive rights were affected, we will address the merits of the issue, thus avoiding a separate claim of ineffective assistance of counsel. (See, e.g., People v. Williams (1998) 61 Cal.App.4th 649, 657.)
In reviewing a claim of instructional error, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) “It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538 (Burgener), disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Minor discrepancies between written and oral versions of instructions may not constitute reversible error. (People v. Crittenden (1994) 9 Cal.4th 83, 137-138 (Crittenden); People v. Garceau (1993) 6 Cal.4th 140, 189-190 (Garceau), overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
In the instant case, the minor discrepancy between the written and oral versions of CALCRIM No. 226 does not constitute reversible error. First, the court had already preinstructed the jury with the complete version of CALCRIM No. 105, which is identical to CALCRIM No. 226, at the beginning of the trial, and the court correctly read the last paragraph of that instruction as to whether a witness deliberately lied. “‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (Burgener, supra, 41 Cal.3d at p. 539; Bolin, supra, 18 Cal.4th at p. 328.) Second, the jury received the correct version of CALCRIM No. 226 in its written form. (See Crittenden, supra, 9 Cal.4th at p. 138; Garceau, supra, 6 Cal.4th at pp. 189-190.) Third, the court’s misstatement was not prejudicial in light of the entirety of CALCRIM No. 226, since the court also instructed the jury that “if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (See, e.g., Garceau, supra, at p. 190.)
In considering defendant’s claim of instructional error, we may also consider the arguments of counsel to determine whether the court’s slight misreading of the instruction could have been prejudicial. (Crittenden, supra, 9 Cal.4th at p. 138.) The prosecutor did not use his closing argument to exploit the court’s inadvertent instructional misstatement. Defense counsel extensively addressed the pretrial statements of Garber, Moreno, Morales, Apodaca, and A. C., and how A. C. and Moreno pulled back from their original statements about Morales and Findley going on a mission, presumably because Morales was not pleased they implicated him. Defense counsel argued these witnesses were lying in their trial testimony, and their pretrial statements corroborated defendant’s consistent descriptions about the arson. Counsel argued: “So someone [is] lying to you up here.... Which one is lying, I don’t know, but all we know is these guys know more about this fire than they should.”
Defendant argues the court’s instructional error prevented the jury from completely rejecting the trial denials of Garber, Moreno, Apodaca, and Morales as to their knowledge or complicity in the arson fires. However, there were many aspects of their trial testimony which supported the defense case, such as the relationships between the witnesses and who attended the April 2007 concert, and the defense theory would not have been aided by the jury’s complete rejection of the trial testimony of these witnesses.
Defendant further argues the instructional error was prejudicial because it prevented the jury from realizing that A. C. “corroborated” defendant’s account of the fires. A. C., however, did not have personal knowledge of any relevant information in this case. She merely reported to the authorities what Moreno told her about his purported conversation with Morales, and she admitted Moreno liked to brag to look good for his friends in the Hell’s Angels. The court’s erroneous inclusion of the word “not” was not prejudicial under the circumstances.
IV. Dismissal of Juror No. 6 and the sufficiency of the court’s inquiry
The trial court may discharge a juror who “becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty....” (§ 1089.) Such good cause may exist if a juror is sleeping or inattentive. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411; People v. Bradford (1997) 15 Cal.4th 1229, 1349 (Bradford); People v. Bonilla (2007) 41 Cal.4th 313, 350 (Bonilla); People v. Johnson (1993) 6 Cal.4th 1, 21, overruled on other grounds by People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
The trial court was faced with such a situation in this case. About halfway through the course of the lengthy trial, the court dismissed Juror No. 6 (also known as Juror No. 39) from the panel because it found she was sleeping and inattentive during the introduction of evidence, and the court replaced her with an alternate juror. The court questioned the two jurors who sat on either side of Juror No. 6, and they stated that Juror No. 6’s behavior did not prevent them from following the evidence. The court decided not to conduct a further inquiry, the prosecutor and defense counsel concurred, and the trial continued without objection by either of the parties.
Defendant does not challenge the court’s decision to excuse Juror No. 6, but contends Juror No. 6’s behavior distracted the entire jury and raised the presumption of juror misconduct among the other jurors. Defendant argues the court should have questioned all the jurors as to whether they were distracted by Juror No. 6’s conduct, and the court’s failure to do so failed to rebut the presumption of prejudice and requires reversal of his convictions. Defendant concedes defense counsel did not object to the court’s decisions on this matter and did not request that the court question all the jurors, but contends defense counsel was prejudicially ineffective for failing to do so.
As we will explain, the trial court carefully monitored Juror No. 6 and the entire jury, and the court’s stated observations refute defendant’s claims about any alleged juror misconduct or the necessity to question every juror.
A. The court’s initial observations of Juror No. 6
On October 1, 2008, defendant’s jury trial began with the presentation of evidence (RT 36), and defendant was convicted on October 21, 2008. From October 2 to October 9, 2008, the court regularly advised the jurors to pay attention to the evidence and invited them to request additional breaks if they were having any problems. The court interrupted the presentation of evidence on three occasions and asked Juror No. 6 if she was sleepy or needed a break or some water, but she declined.
During that same time period, the trial court used nearly every recess and lunch break to advise the prosecutor and defense counsel, outside the jury’s presence, that it was concerned about the behavior and conduct of Juror No. 6. The court stated it was carefully watching Juror No. 6 and repeatedly described her behavior in great detail for the record: that while she sometimes seemed attentive, she also appeared distracted, hunched over, and not looking at the attorneys or witnesses, she might not be oriented as to time and place, and she seemed to be asleep during the presentation of evidence. On one occasion, Juror No. 6 arrived late for the morning proceedings but explained she had to wait for a bus, and the court allowed her to remain on the panel.
The court repeatedly stated that it would closely monitor Juror No. 6’s behavior, and invited the parties to watch her and express their concerns. During the lunch break on October 2, 2008, the prosecutor agreed Juror No. 6 appeared to be sleeping. Defense counsel thought she was snoring, but he could not tell if she was sleeping or had respiratory problems.
During the afternoon recess on October 7, 2008, the court advised the prosecutor and defense counsel that Juror No. 6’s head was nodding up and down during the testimony. The court could not tell if she was actually grasping things when her head was down. The court further stated:
“She is becoming somewhat distractive increasingly over our sessions to jurors sitting around her, turning away from her or occasionally turning and looking at her. It’s distracting to the point that staff is passing me notes on the occasions when they see her head going down and that’s becoming more frequent. And I noticed that counsel has had to, for the People, has on occasion made comments to his chief investigating officer as to the condition of Juror Number Six from time to time.” (Italics added.)
The prosecutor agreed that Juror No. 6’s head was down and her eyes were closed for a few seconds and he could not tell if she was asleep. The prosecutor also noticed the other jurors around her were distracted and “often looking at her when we were, in fact, looking at Juror Number Six as well.” The court asked defense counsel for any comments and he declined to address the situation.
Later on October 7, 2008, the court excused the jury and stated for the record that the prosecutor and defense counsel discussed Juror No. 6 during another recess, and the court was going to question her. The prosecutor suggested the court ask if she felt she could continue as a juror without falling asleep. Defense counsel said he “just assumed” he was “putting her to sleep” during the trial so he “ignored her too.” Defense counsel stated that if Juror No. 6 admitted she had been asleep, that meant she had missed testimony and she should be replaced. Defense counsel added, “I’ve seen judges that have their eyes closed but are hearing every single word and pin that drops in the courtroom, so I don’t know.” The court interviewed Juror No. 6, who stated that she was taking medication, she was not sleeping, and she listened to everything during trial. The court decided to allow her to remain on the jury but advised the parties that it would continue to closely monitor her conduct.
B. Removal of Juror No. 6
On October 9, 2008, the court excused the jury for the noon recess and again discussed Juror No. 6’s behavior with the prosecutor and defense counsel. The court stated Juror No. 6 was generally alert during the first part of the morning, but the court staff reported her head was down at least once or twice, and she appeared to be dozing. The court stated:
“At some point, because I have observed the jurors on either side of her to look at her I may bring either one or both of those jurors in to ascertain whether they believe that [Juror No. 6] has been asleep during portions of the trial and make a decision prior to the jury going out in this case whether she will remain as a regular juror.” (Italics added.)
The prosecutor agreed that Juror No. 6’s head was down several times and she appeared to be asleep. The prosecutor also stated that Juror No. 6 was “a distraction to the other jurors because when she does have her head down the other ones are kind of looking at her.” (Italics added.)
The court asked defense counsel for his observations. Defense counsel stated he was not watching Juror No. 6 when he questioned the witnesses, he could not see her from the defense table, and he deferred to the observations made by the court and the prosecutor. However, defense counsel argued defendant’s right to a jury trial was at risk if Juror No. 6 was sleeping during trial. The court stated it would continue to monitor the situation before it made any final decision on the matter.
After the noon recess on October 9, 2008, the court called in Juror No. 5, advised Juror No. 5 that it had been observing Juror No. 6, “who sits immediately to your left, ” and it was concerned about Juror No. 6’s attentiveness throughout the trial.
“[THE COURT]: I have observed you observing her throughout the trial. In your opinion do you believe there have been occasions when Juror Number Six has either nodded off or been sleeping during the testimony?
“[JUROR No. 5]: Yes.”
In response to the court’s questions, Juror No. 5 said Juror No. 6 had been sleeping on a regular basis during the trial and did so again that day. The court asked Juror No. 5 if Juror No.6’s conduct or behavior had been distracting, and Juror No. 5 said yes.
“THE COURT: Do you believe in your reasoned opinion that it has been distractive to other jurors based upon what you’ve seen going on around you?
“[JUROR No. 5]: Yes.
“THE COURT: And has this been a daily occurrence throughout the trial?
“[JUROR No. 5]: Yes.”
The court asked the attorneys if they had any questions, and both the prosecutor and defense counsel declined. The court resumed questioning Juror No. 5:
“THE COURT: Have you found either the conduct or behavior or other matters relevant to Juror Number Six making it difficult for you to focus on the proceedings?
“[JUROR No. 5]: It is distracting, yes.
“THE COURT: You’re able to track the proceedings, it’s just that her conduct is distracting to you?
“[JUROR No. 5]: Yes.” (Italics added.)
The court directed Juror No. 5 to return to the jury room and not discuss the matter with the other jurors.
The court asked the attorneys whether they wanted any of the other jurors questioned. The prosecutor suggested the court should question Juror No. 7, who sat on the other side of Juror No. 6. The court asked defense counsel if he wished to be heard.
“[DEFENSE COUNSEL]: My concern now is just a question you would ask were other jurors distracted for the last nine days, what level that is. I’m not so concerned about [Juror No. 6] now, that’s obvious.
“THE COURT: That’s why I asked a question if anything that has been done has prevented that Juror Number Five as [sic] participated as a juror. It is clear it hasn’t affected her to the point she’s missed anything, it’s just become a distraction to having that person around.
“[DEFENSE COUNSEL]: All right. So maybe talking to [Juror No. 7].” (Italics added)
The court questioned Juror No. 7 in the absence of the other jurors. The court advised Juror No. 7 that it was concerned about Juror No. 6’s conduct and asked if there were occasions when Juror No. 6 was not awake during the trial. Juror No. 7 said Juror No. 6 was asleep on numerous occasions, and she was sleeping again that day. The court asked Juror No. 7 for an estimate of time during which Juror No. 6 was not “with us.” Juror No. 7 replied, “[s]ometimes a few minutes, sometimes just 30 seconds.”
“THE COURT: Has her conduct in that regard either nodding off or anything else she may have done, does it appear that to you that she has been distracted from the ongoing proceedings?
“[JUROR No. 7]: Distracted, I would say, yes.
“THE COURT: Has her conduct or behavior become distractive to you?
“[JUROR No. 7]: Very much.
“THE COURT: Has that prevented you from being alert and paying attention and receiving the evidence in this case?
“[JUROR No. 7]: No, not to me. I mean, I notice, I look, I’ve even thought about kicking her chair.” (Italics added.)
The court asked the parties if they had any questions, and both the prosecutor and defense counsel declined. The court directed Juror No. 7 to return to the jury room and not discuss the matter with the other jurors.
Thereafter, the court decided to remove Juror No. 6 from the jury for the following reasons:
“Having questioned those two particular jurors, based upon the court’s observations over a period of time, the fact that on one occasion Juror Number Six was disoriented as to place and time, of when to show up for sessions, the fact that she was more than an hour late for yesterday’s session and the confirmation of the court’s observations that it appears that she has been dozing from time to time regularly, both morning and afternoon sessions throughout the trial, and particularly the court’s last observations today that for periods of time or the frequency of what appears to be dozing for several seconds or longer on a continual basis over a period of minutes, whether [Juror No. 6] is aware or not that she’s been dozing off. I’m satisfied that she has not been getting all the information that is taking place so far in the trial and I’m satisfied that she could not carry out the functions of a regular juror in the deliberative process once the case is submitted to the jurors because she will not have all the information that the other jurors are getting in this case by way of testimony. I do not feel a need or is either counsel specifically asking me to make a further inquiry of [Juror No. 6] to see if she herself has been attentive throughout the trial.” (Italics added.)
The prosecutor declined to make such a request.
“[DEFENSE COUNSEL]: I have no questions. I don’t want you to ask any further questions.” (Italics added.)
Outside the jury’s presence, the court discharged Juror No. 6 and thanked her for her service. The court then brought the rest of the jurors back into the courtroom, advised them that Juror No. 6 had been discharged, and instructed them not to discuss or speculate about the reasons for Juror No. 6’s discharge. The court selected one of the alternates as a regular juror, and the trial continued without further discussion of this issue. On October 21, 2008, the jury found defendant guilty of all charges and found the special allegations to be true.
C. Analysis
As explained ante, section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is “found to be unable to perform his or her duty.” Such good cause may exist if a juror is sleeping or inattentive. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 411; Bradford, supra, 15 Cal.4th at p. 1349; Bonilla, supra, 41 Cal.4th at p. 350; People v. Johnson, supra, 6 Cal.4th at p. 21.) “A juror must not be discharged for sleeping unless there is convincing proof the juror actually slept during trial. [Citations.]” (People v. Bowers (2001) 87 Cal.App.4th 722, 731.)
Once the court is placed on notice that good cause to discharge a juror may exist, “it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 821.) A juror’s inability to perform “‘must appear in the record as a “demonstrable reality” and bias may not be presumed.’ [Citations.]” (People v. Beeler (1995) 9 Cal.4th 953, 975.) Both the scope of the court’s inquiry and the ultimate decision whether to retain or discharge a juror are committed to the sound discretion of the trial court. (Bonilla, supra, 41 Cal.4th at p. 350.) If any substantial evidence exists to support the trial court’s exercise of its discretion under section 1089, the court’s action will be upheld on appeal. (Bradford, supra, 15 Cal.4th at p. 1351.)
The trial court herein had convincing proof that Juror No. 6 was sleeping during the presentation of evidence, the court did not abuse its discretion when it decided to excuse Juror No. 6 and replace her with an alternate juror, and defendant does not contest the court’s decision on this matter.
Defendant’s failure to request further questioning of the jury
While defendant does not challenge the removal of Juror No. 6, defendant contends the trial court abused its discretion and deprived him of his Sixth Amendment right to an impartial jury because it failed to conduct further evidentiary hearings to determine whether the other nine jurors were distracted by Juror No. 6’s behavior. Defendant acknowledges the court questioned Juror Nos. 5 and 7, but contends their responses indicated they were distracted by Juror No. 6, and raised the presumption that the other nine jurors were also distracted by Juror No. 6’s behavior. Defendant argues an inattentive juror commits misconduct, such misconduct raises the presumption of prejudice, and the court’s failure to question the other jurors failed to rebut the presumption of prejudice.
However, defendant forfeited review of this issue because defense counsel failed to ask the court to further question the jurors and failed to object to the court’s decisions on these points. (People v. Holloway (2004) 33 Cal.4th 96, 124.) If defendant had requested the court to conduct additional inquiries at the time that Juror No. 6 was discharged, the court could have addressed any concerns about the other jurors, but defendant’s failure to raise these issues prevents him from making this argument for the first time on appeal. (Ibid.)
Defendant raises the alternative argument that defense counsel was prejudicially ineffective for failing to move for a mistrial or request the court to individually question the other nine jurors. He argues that counsel’s failure was prejudicial because the other jurors were distracted by Juror No. 6’s behavior, their inattentiveness raised the presumption of juror misconduct, and that presumption was never rebutted.
Defendant’s argument is based on the premise that a juror commits misconduct if he or she fails to pay attention to the evidence presented at trial. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 411; Bradford, supra, 15 Cal.4th at p. 1349.) Although misconduct may constitute grounds to believe a juror will be unable to fulfill his or her functions as a juror under section 1089, “such misconduct must be ‘serious and wilful.’ [Citation.]” (People v. Bowers, supra, 87 Cal.App.4th at p. 729.) Juror misconduct raises a rebuttable presumption of prejudice, and a trial court presented with competent evidence of juror misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct. (People v. Dykes (2009) 46 Cal.4th 731, 809.)
The court has the discretion whether to conduct an evidentiary hearing to resolve factual disputes raised by a claim of juror misconduct. (People v. Avila (2006) 38 Cal.4th 491, 604 (Avila).) “Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is ‘necessary to resolve material, disputed issues of fact.’ [Citation.] ‘The hearing should 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 upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’ [Citations.]” (Avila, supra, 38 Cal.4th at p. 604.)
Moreover, as explained by the California Supreme Court, “the mere suggestion of juror ‘inattention’ does not require a formal hearing disrupting the trial of a case. [Citation.]” (Espinoza, supra, 3 Cal.4th at p. 821.) A trial court’s “self-directed inquiry, short of a formal hearing, ” may be adequate under the state and federal Constitutions where the court is alert to the danger of juror inattention, closely observes the jurors, and makes specific observations about their demeanors. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234.) “The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶ ].…[A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 343.)
Defendant’s assertion of juror misconduct-that the other jurors were distracted by Juror No. 6’s sleeping-is based on pure speculation and not supported by any evidence in the record. The presumption of prejudice from purported jury misconduct cannot be based simply on speculation because the inability to perform the functions of a juror must appear in the record as a demonstrable reality. (See, e.g., People v. Bennett (2009) 45 Cal.4th 577, 621; People v. Fauber (1992) 2 Cal.4th 792, 837-838; People v. Beeler, supra, 9 Cal.4th at pp. 989-990.)
Although defendant suggests the court should have conducted a formal inquiry of the other nine jurors, the entirety of the record demonstrates the court did not believe such an inquiry was necessary. The trial court was “in the best position to observe” the jurors’ demeanors and their reactions to Juror No. 6’s behavior and determine if additional inquiries were required. (People v. Beeler, supra, 9 Cal.4th at p. 989; People v. Schmeck (2005) 37 Cal.4th 240, 298.) As explained ante, the court carefully monitored Juror No. 6 and the entire jury, and effectively engaged in a “self-directed inquiry” to determine which jurors it should question. (People v. DeSantis, supra, 2 Cal.4th at p. 1234.) The court stated that Juror No. 6 was becoming increasingly distractive to the jurors “sitting around” her, because they were “turning away from her or occasionally turning and looking at her.” The court also observed the jurors “on either side” of Juror No. 6 were looking at her. The prosecutor agreed that the jurors around Juror No. 6 were “often looking at her.” Based upon these observations, the court decided to question Juror Nos. 5 and 7, the jurors who sat on either side of Juror No. 6. These two jurors reported that Juror No. 6 was asleep and they noticed her behavior, but they both stated that her behavior did not prevent them from following the evidence. There is nothing in the record to show a demonstrable reality that Juror No. 6’s inability to stay awake prevented the other nine jurors from discharging their duties. (See People v. Beeler, supra, 9 Cal.4th at p. 990.)
Defendant contends defense counsel’s failure to request the court to question the other jurors and otherwise move for a mistrial was prejudicial, based on People v. Guzman (1977) 66 Cal.App.3d 549 (Guzman) and United States v. Angulo (9th Cir. 1993) 4 F.3d 843 (Angulo). However, these cases are completely contrary to the instant situation. In Guzman, a juror attempted to barter his vote during deliberations and acquit a codefendant in exchange for convicting the defendant. The other jurors immediately complained to the trial court about the incident, but the court allowed the offending juror to remain on the panel, and that juror taunted the other jurors for two more days. The court finally discharged the juror prior to the verdict but denied the defendant’s motion for mistrial. On appeal, the People conceded the juror’s attempt to barter his vote constituted misconduct, and Guzman held the trial court should have granted the defendant’s motion for mistrial since it failed to immediately remove the offending juror. (Guzman, supra, 66 Cal.App.3d at pp. 552-556, 560-561.)
In Angulo, a juror in a major narcotics case informed the trial court that she received a threatening telephone call and that she told the other jurors about the threat. The court excused the juror who received the threat but failed to address the matter with the other jurors, even though the court was advised that the other jurors knew about the threatening call. Angulo held such circumstances presented the strong potential for bias, the trial court should have examined the effect of the threat on the remaining jurors, and it remanded the matter for an evidentiary hearing to determine whether the jurors who knew about the threat were able to act impartially and without bias. (Angulo, supra, 4 F.3d at pp. 847-848.)
Both Guzman and Angulo involved situations where the trial courts therein were informed about extremely prejudicial and undisputed misconduct, the other jurors were aware of the circumstances, and the court failed to promptly take action to determine whether the other jurors were biased by such information. In contrast, the court in this case was well aware of the potential problem-that Juror No. 6 appeared to be falling asleep-and it carefully monitored the entire jury and determined that only the jurors on either side of Juror No. 6 might have been distracted by her behavior.
The court “demonstrated its continual scrutiny of the attentiveness and attitude” of all the jurors, and “the absence of any reference in the record” to the alleged inattentiveness of the other jurors indicates the court did not abuse its discretion in failing to conduct a further inquiry. (People v. Bradford, supra, 15 Cal.4th at p. 1349; Ray, supra, 13 Cal.4th at pp. 343-344.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J.HILL, J.