Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF011459A
HULL, Acting P. J.Defendant Charles Robert Peck, Jr., was found guilty by a jury of torture (Pen. Code, § 206; unspecified statutory references that follow are to this code), two counts of corporal injury to a cohabitant (§ 273.5, subd. (a)), two counts of assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1)), two counts of false imprisonment (§ 236), and dissuading a witness (§ 136.1, subd. (b)(3)). The jury also found true that defendant inflicted great bodily injury involving domestic violence (§ 12022.7, subds. (a) & (e)) and that he personally used a dangerous or deadly weapon (§ 12022, subd. (b)(1)) during several of the offenses. In a bifurcated proceeding, the jury found defendant had four prior serious felony convictions. (§§ 667, subd. (a), 1170.12, subd. (b).) He received a sentence of 80 years to life in state prison.
Defendant appeals, claiming the trial court erred by excusing one of the jurors during deliberations on his prior convictions and by failing to conduct an adequate hearing on his motion for a mistrial based on juror misconduct. Finding no merit to either of these claims, we shall affirm.
Facts and Proceedings
At the time of the incident, defendant and the victim lived together in a dating relationship. Defendant, who was a truck driver, got into an argument with the victim while returning from a trip to Southern California. When they got home, the victim told defendant she was leaving, and she began packing her things. Defendant left on another job, and the victim went to sleep. When defendant returned sometime later, he jumped on top of the victim and began wrapping duct tape around her head, covering her eyes, nose and mouth, then punched her near her eye and choked her until she passed out. The victim regained consciousness, but defendant punched her in the face several times and hit her with a bat until she lost consciousness again.
When the victim woke up, she had no clothes on and defendant was chaining her to a piece of furniture in the garage. Defendant told the victim he was going somewhere. After some time passed, the victim attempted to escape, but defendant was waiting for her when she emerged from the garage and dragged her back in, where he kicked her several times in the rib area and taped her mouth again.
Five or 10 minutes later, defendant returned with a glass of water for the victim, then carried her inside the residence and “put [her] in the shower.” He then placed her in bed, stating, “Look what you made me do to you.” Defendant gave the victim a cigarette and some pain medication.
The victim was in so much pain that she “couldn’t breathe, ” and defendant stated that they might need to call an ambulance. They agreed that if this was necessary, the victim would report that she had fallen out of a tree. Defendant and the victim went to sleep.
A couple days later, defendant left, stating he was going to Los Angeles on a job. The victim left the home the following morning and flagged down a motorist, who called for help.
The victim’s injuries included broken ribs, a punctured lung and bruising on her face, extremities and torso. In addition, she had suffered a moderate stroke.
Several days later, sheriff deputies located defendant under a freeway with a sleeping bag and various other belongings. Several notes were located in his vehicle, containing instructions for his employer to send his final checks to his father and telling his father that he was leaving the area and that “he wanted to document and explain how [the victim] destroyed his life.” In one of the notes, he inquired: “Have I been in the news? Have no more contact with me. I don’t want to get you in trouble.” Defendant was interviewed by a sheriff’s deputy after his arrest and explained that when he wrote he was “leaving the area, ” he meant he was “not going to stick around” and that he was “getting out of town.” Defendant told the sheriff’s deputy that he had not left town because he would have had to rely on his family and friends to support him and he did not want them to get into trouble or be held accountable.
At trial, evidence was presented regarding the victim’s character for untruthfulness, and one witness testified she previously had seen the victim hit defendant with a broom.
Discussion
I
Discharge of Juror No. 2
While the jury was deliberating on defendant’s prior convictions, the trial court excused one of the jurors and replaced her with an alternate. Defendant maintains the court did not have good cause to excuse this juror.
During deliberations on defendant’s prior convictions, the foreperson sent a note to the trial court stating that Juror No. 2 was “request[ing] to be removed from this phase of the case.” Juror No. 2 had left the jury room and was “sitting by herself... in tears” in the hallway when she was called into the courtroom and questioned. The following exchange took place:
“THE COURT: [¶]... [¶] What seems to be the difficulty, Juror Number 2?
“[JUROR NO. 2]: I don’t feel like I can stay in there and come to a decision with the group of people that are in there.
“THE COURT: Was there anything in particular that is upsetting to you?
“[JUROR NO. 2]: Yes, I felt at first that my own-–by what I believe in and what I’ve seen, that I’ve come to the conclusion on my own that I’ve reached a verdict of not guilty, and I let them persuade me into thinking otherwise. [¶] I didn’t have enough confidence in myself, I believe, and I feel that I-–I feel like if I let them do that to me again, I would just rather not be in there and go through the rest of the phase with them. It’s like a zoo in there. They’re joking around. They’re not taking things serious. They’re talking about other stuff that doesn’t even pertain to what’s going on with the case, and they’re making jokes of how this all turns out, and well, it just doesn’t seem fair to me, and I don’t want to be any part of it, and I don’t want to be any part of putting somebody in prison the rest of their life.
“THE COURT: Well, you don’t have anything to do with the punishment.
“[JUROR NO. 2]: That’s what they were telling me. That’s what I wasn’t understanding that this is a three strikes you’re out thing and this is going to be the third strike and that he’s going to go to prison forever because that’s what he deserves. They’re like, ‘We were all right. Look what happened. We were all right.’ Showing the papers that you had just given them, they believe that they have done exactly what was meant to be done because of what his prior records showed, because of his being on parole and such.”
Over a defense objection and motion for mistrial, the trial court excused Juror No. 2, replaced her with one of the alternates, and instructed the jury to start their deliberations over on the prior allegations. During a later motion for mistrial, the court noted that Juror No. 2’s statements indicated she was not going to deliberate on the priors or follow the court’s instructions.
A trial court may discharge a juror at any time “upon... good cause shown” that the juror is “unable to perform his or her duty, or if a juror requests a discharge and good cause appears.” (§ 1089.)
“A juror’s duty is to weigh the evidence and credibility of witnesses with impartiality and to reach a fair and unbiased verdict. [Citations.] It is well settled that a sitting juror’s actual bias, which would have supported a challenge for cause, renders him ‘unable to perform his duty’ and thus subject to discharge and substitution....” (People v. Thomas (1990) 218 Cal.App.3d 1477, 1484.) Actual bias is defined as “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code of Civ. Proc., § 225, subd. (b)(1)(C).) “‘A juror’s inability to perform his or her functions... must appear in the record as a “demonstrable reality” and bias may not be presumed.’” (People v. Beeler (1995) 9 Cal.4th 953, 975.)
“A juror’s disqualification is discretionary with the court and if there is any substantial evidence supporting the decision it will be upheld on appeal.” (People v. Dell (1991) 232 Cal.App.3d 248, 255.) “[T]here is no statutory procedure for determining the existence of a ground of discharge. In the absence of a stipulation by counsel, ‘the judge must act on his own motion, expeditiously. His summary determination on the basis of any evidence... will seldom be successfully challenged.’” (Id. at p. 256, fn. omitted.)
In the present matter, a note from the foreperson stated that Juror No. 2 wanted to be discharged from the jury. Prior to being questioned by the trial court, Juror No. 2 left the jury room, demonstrating her unwillingness to deliberate further. When questioned, she informed the court she did not think she could stay in the jury room with the other jurors and she did not “want to be any part of putting somebody in prison the rest of their life.” Even when the court explained to her that she did not “have anything to do with the punishment, ” the juror persisted that she had not understood it was a three strikes case and defendant was “going to go to prison forever.” These statements and actions by Juror No. 2 evinced an inability to deliberate with the other jurors, to follow the law, and to remain impartial. In other words, she was unable and unwilling to perform her duties as a juror. Furthermore, Juror No. 2 had requested to be discharged on this basis. The trial court did not abuse its discretion by discharging this juror.
Defendant maintains that “Juror No. 2’s reference to punishment, read in context, simply reinforces the conclusion that she did not want to deliberate on a case involving a life sentence with jurors who refused to take the process seriously.” But none of Juror No. 2’s complaints about the jury at the time she was discharged amounted to misconduct. Thus, regardless of what the reason was that Juror No. 2 was refusing to deliberate with the other jurors, such refusal constituted good cause for discharging her.
Defendant claims the trial court did not adequately question Juror No. 2 to determine whether she could be impartial despite the difficulties she was having. But there was nothing equivocal about Juror No. 2’s statements and nothing to suggest that further questioning could restore her impartiality or her willingness to deliberate with the other jurors.
Defendant also claims that, by removing Juror No. 2 when her remarks conveyed she favored defendant’s position, the trial court sent the jury a message to “vote for conviction.” Defendant analogizes the situation to that in which a deadlocked jury is instructed in a manner suggesting that the minority jurors should give further consideration to the position of the majority. (See People v. Gainer (1977) 19 Cal.3d 835, 845.) However, the reason such instructions are impermissible is that they direct jurors to consider an extraneous factor in their deliberations–-the position of the majority–-as well as putting excessive pressure on dissenting jurors to acquiesce to the majority position. (Id. at pp. 848, 850.) Here, on the other hand, Juror No. 2 was not removed because she “favor[ed] one side or the other, ” as suggested by defendant. Her discharge resulted when she removed herself from the jury room and made comments indicating that she would be unable to disregard punishment in reaching a verdict. Accordingly, we reject this argument as well.
II
Juror Misconduct
Defendant also claims the trial court erred by denying his motion for a new trial prior to sentencing based on juror misconduct.
During trial, the court questioned the jurors as to whether any of them had read anything about the case in that morning’s newspaper. One of the jurors stated that her husband “read the article” but she had not and her husband knew she did not want to talk about it. The court admonished the jury not to read any articles about the case.
Prior to sentencing, defendant filed a motion for new trial, accompanied by declarations from Juror No. 2 and her replacement, the alternate juror. Juror No. 2’s declaration stated, in relevant part: “One woman juror said that [defendant] had confessed to the Sheriff Deputies.” We note that much of Juror No. 2’s declaration addressed her thoughts and feelings during deliberations and her beliefs as to the thought processes of the other jurors. Such evidence is not admissible when inquiring into the validity of a verdict. (Evid. Code, § 1150, subd. (a).)
The alternate juror’s declaration stated, as relevant here: “During our deliberations on the prior convictions, one female juror said[, ] ‘Wow, this must have been exactly what was in the newspaper that the judge didn’t want us to see.’ Another juror then asked her, ‘[D]o you mean the previous case?’ The female juror then said verbatim as it was written in the article, the amount of time he was sentenced to on the previous case. She said it exactly how it was written in the news article. I know that the female juror read the article and shared it with other jurors. I could tell because it was discussed in the jury room, and I did not think it was right. When the case was over, I went home and looked up the article on the internet. The female juror’s words in the jury room were verbatim to the article I read on the internet.”
The trial court denied defendant’s motion for a new trial, agreeing with the prosecuting attorney that the jury could have viewed the notes found in defendant’s vehicle regarding his plan to flee--which were testified to by a sheriff’s deputy--as a confession. With regard to defendant’s contention that the jury had considered a newspaper article about his prior convictions, the court found that the information contained in the alternate juror’s declaration did not “necessarily mean[] that [the jury] read something in the paper, ” as it had been given certified copies of defendant’s prior convictions that contained the same information.
Juror misconduct occurs when a juror receives evidence from a source other than the courtroom, even if received inadvertently. (§ 1181, subd. 2; People v. Zapien (1993) 4 Cal.4th 929, 994.) “[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (In re Hamilton (1999) 20 Cal.4th 273, 294.)
A juror’s exposure to information extraneous to the evidence presented at trial “‘may require... examination for probable prejudice.’” (People v. Harris (2008) 43 Cal.4th 1269, 1303.) “A court may hold an evidentiary hearing when jury misconduct is alleged in a new trial motion, but the court may also, in its discretion, conclude that a hearing is not necessary ‘to resolve material, disputed issues of fact.’” (People v. San Nicolas (2004) 34 Cal.4th 614, 649.) “‘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.’” (People v. Avila (2006) 38 Cal.4th 491, 604.) The decision on whether to hold an evidentiary hearing “is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)
Defendant maintains the trial court did not hold an adequate hearing into his allegations of juror misconduct because it failed “to question the other jurors to determine whether they were influenced by the alleged confession and newspaper article.” But implicit in the court’s findings was a determination that there was insufficient evidence of juror misconduct in the juror declarations to warrant an evidentiary hearing. We discern no abuse of discretion in this regard.
As found by the trial court, Juror No. 2’s statement regarding another juror’s mention of defendant’s “confess[ion] to the Sheriff Deputies” was consistent with evidence received at trial. A sheriff’s deputy testified about notes found in defendant’s vehicle discussing his plan to flee and about her questioning defendant regarding the notes. Defendant admitted to the sheriff’s deputy that he wrote the notes and clarified that when he stated he was leaving the area, he meant he “was not going to stick around” and that he was “getting out of town.”
The deputy district attorney’s first comments to the jury during argument concerned defendant’s statement to the deputy sheriff about his intent to flee, and he returned to this evidence later in his argument. The jury was instructed that evidence defendant fled or tried to flee immediately after the crime may show that he was aware of his guilt. In light of the paucity of information in Juror No. 2’s declaration to indicate that extraneous information about defendant’s confession was received by any of the jurors, the trial court acted well within its discretion in declining to hold an evidentiary hearing on this basis.
We reach a similar conclusion regarding the alleged reference during deliberations on defendant’s prior convictions to a newspaper article containing information about the priors. The alternate juror quoted the offending juror as stating: “[T]his must have been exactly what was in the newspaper that the judge didn’t want us to see.” Contrary to defendant’s claim, this statement implies that the juror had not seen the article. Although the alternate juror claims this juror stated “verbatim as it was written in the [newspaper] article, the amount of time [defendant] was sentenced to on the previous case, ” the jurors had just received evidence on this issue. The alternate juror’s declaration was devoid of any specific information to suggest the jurors received this information from an improper source. Similarly vague was the alternate’s statement that she “could tell” the other juror read the article and shared it with the other jurors “because it was discussed in the jury room.” The trial court was entitled to find insufficient evidence of juror misconduct to warrant an evidentiary hearing on this basis as well.
Disposition
The judgment is affirmed.
We concur:BUTZ, J., HOCH, J.