Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FMB700070, J. David Mazurek, Judge.
BENKE, Acting P. J.
Scott Henry Plummer appeals his conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [count 2]) and of criminal threats (§ 422 [count 3]). The jury also found Plummer personally used a deadly weapon during the commission of the criminal threats. (§ 12022, subd. (b)(1).) The trial court sentenced him to the upper term of four years for the assault, a consecutive term of eight months for the criminal threats, and a consecutive term of four months for the deadly weapon enhancement, for a total term of five years.
All further statutory references are to the Penal Code unless otherwise specified.
The jury found Plummer not guilty of the crime of attempted murder [count 1].
Plummer appeals, contending the trial court erred when it denied his motion (i) to suppress evidence after police entered his residence without a warrant to arrest him and (ii) for a new trial based on juror misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.) Certain portions of the factual and procedural history related to Plummer's claims of errors are discussed post, in connection with those issues.
A. People's Evidence
On March 13, 2007, at approximately 11:30 p.m., Raymond Regan left his friend's home and drove a short distance down a dirt road to his own home. As Regan got out of his truck, he saw a truck drive past his driveway, make a U-turn and stop at the top of the driveway. Regan saw a person walking up the driveway. When Regan called out, the person said: "It's your worse (sic) fucking nightmare." Regan immediately recognized the voice as that of Plummer, who lived in the same neighborhood as Regan. Plummer asked Regan why he had not yet fixed Plummer's truck.
Regan stood by his car as Plummer approached. Plummer took a swing at Regan with an ax or hatchet, missing Regan but hitting the door of Regan's truck. Plummer took another swing at Regan, again hitting Regan's truck. On his third swing, Plummer hit Regan on the left side of the head. Regan blacked out and fell to the ground; Regan awakened to find Plummer standing over him, claiming he would be back to "finish the job." Plummer then drove off in his truck.
Regan got into his truck and drove back to his friend's house. On his way, Regan drove past Plummer's residence, and observed a truck pull out of Plummer's driveway and follow him. When Regan arrived at his friend's house, Regan shouted to his friend Randall Frye, who came outside to meet him. Regan was unable to open his driver's door because of the damage from the attack. Regan instead climbed out of the passenger door and fell to the ground, in front of Frye, who dialed 911. Regan's face was red and puffy from the blow he had received.
Frye knows both Regan and Plummer from the neighborhood. Frye testified that on March 13, 2007, he and Regan spent the day together, which included watching a movie in the evening. Regan left to go home, but returned to Frye's house about 10 minutes later screaming for Frye. When Frye went outside, he saw Regan exit his truck through the passenger door and fall to the ground. Regan told Frye that Plummer had tried to kill him.
Seconds later, Frye saw Plummer's vehicle. Regan did not want to call police. However, Frye called 911 for help.
1. Previous Threats by Plummer
Regan works as an auto mechanic and handyman. He worked on Plummer's vehicles and at Plummer's home for about three years before the March 2007 incident. Plummer typically paid Regan in cash. Over time, their relationship soured.
In one incident, for example, Plummer threw Regan to the ground after they argued over work done by Regan on a dune buggy owned by Plummer. In another, Plummer, while loading a Bobcat on a trailer, pinned Regan between a truck and the Bobcat, causing nerve damage to Regan's leg. Plummer subsequently dragged Regan to Plummer's house, and told Regan if he sued Plummer would kill him, bury him in the desert and burn down his house.
In yet another incident, Regan was on the ground working on one of Plummer's trucks when Plummer approached carrying a pistol, fired four shots at Regan's feet and told him: "This might light a fire under your ass." Such threats by Plummer occurred on multiple occasions; as a result, Regan became terrified of Plummer and stopped working for him.
Before the March 2007 incident, Plummer went to Regan's house and banged on his door. When Regan came outside, Plummer grabbed a chair and table on the porch and smashed the windshield of Regan's vehicle. Plummer told Regan he was angry because Regan had not repaired one of Plummer's trucks, and vowed to return.
About a week later, Plummer returned to Regan's house, banged on the front door and forced it open. Plummer again yelled at Regan about Plummer's truck. Plummer grabbed a hatchet by the stove and damaged the interior of Regan's front door. Regan did not call police regarding any of these incidents or sue Plummer for his injuries.
Frye testified about an incident that occurred when he and Regan were sitting on Regan's porch. As Plummer pulled up in his truck, Regan approached and asked Plummer: "What's up." Plummer threatened to kill Regan if he did not call a certain female. Frye confronted Plummer, told Regan not to let Plummer speak to him that way and asked Plummer to leave. Regan was frightened. Plummer said he would be back.
Johnny Ortega testified he knows Plummer and Regan from the neighborhood. Ortega often saw Regan's truck parked at Plummer's property. Ortega visited Regan immediately after Plummer had injured Regan in the Bobcat incident. In Ortega's presence, Plummer told Regan if he sued, Plummer would take Regan out to the desert and kill him. When Ortega asked Regan if he had recorded the threat, Plummer promptly left.
Mary Callahan testified she lives in the same neighborhood as Plummer. Plummer introduced himself to Callahan as the person who put an ax or hatchet through someone else's door. Plummer told her it happened when he was on drugs.
2. The Day of the Incident
Lynette Cary, Plummer's former girlfriend, lived with Plummer in March 2007. Cary testified she and Plummer were at home watching a movie on the night of March 13, 2007. During the movie, Cary paused the video player, and Plummer wrote down on an envelope the statement, "Guns don't kill people, I do," which appeared on a shirt worn by one of the characters in the movie. Cary testified Plummer was laughing when he wrote down this statement.
Cary testified she heard Plummer leave the house, enter the shed and return to the house holding a hatchet. Plummer told Cary he needed to sharpen the hatchet. Cary next heard the sound of a hand grinder coming from their bedroom, where Plummer kept his tools. Plummer told Cary he was going to one of his properties to get tools and supplies, and she saw him leave the house carrying the hatchet. Plummer was gone about two hours. Cary testified Plummer seemed calm and happy when he returned home. They continued watching the movie until police arrived about 20 minutes later.
Cary testified she was aware of the hostility between Plummer and Regan because of missing tools and Regan's refusal to work on Plummer's trucks. After Plummer's arrest and subsequent release, Cary accompanied Plummer to Arizona where he was again arrested.
3. Arrest and Search of Plummer's Residence
In response to the 911 call, San Bernardino County Deputy Sheriff Joshua Galbraith and his partner were dispatched to Frye's home. Galbraith interviewed Regan and observed damage to Regan's truck's doorjamb consistent with being struck by a sharp, metal object. During their interview, Regan identified Plummer as his attacker. Galbraith then followed Regan home, to the scene of the assault. Galbraith found and measured fresh shoe prints in the soil and used this information to determine the stride of the individual who made the prints. Galbraith also observed fresh tire marks in the soil.
Regan told Galbraith where Plummer lived. Galbraith and his partner drove to Plummer's property and found a truck parked outside. Galbraith compared the tread and wear pattern of the tires on Plummer's truck to the marks he observed in the dirt outside Regan's home and determined there was a match. Galbraith also found the shoe prints outside of Plummer's parked truck matched the prints he had observed and measured in the dirt in front of Regan's house.
Galbraith and his partner went to the front door of Plummer's house, while two other officers who had just arrived went around to the back corners of the lot. Galbraith heard a loud man's voice and a female's voice from inside the house. Galbraith knocked on the front door. A man answered, and in response to Galbraith's question, he indentified himself as Scott Plummer. Galbraith asked Plummer to step outside. Plummer refused, became irate and tried to slam the door on Galbraith. Galbraith put his foot inside the wedge of the door to prevent it from closing, and reached for and made contact with Plummer. Plummer pulled away from Galbraith and back peddled inside the house about 10 feet. Galbraith told Plummer to stop, but Plummer refused. Because he was concerned about officer safety and the destruction of evidence, Galbraith entered Plummer's house and handcuffed Plummer. Galbraith's partner took Plummer outside and placed him in a patrol car because Plummer was irate and was yelling and cursing.
Galbraith next spoke to Cary in the living room area of the residence. Cary initially claimed she and Plummer had been home together all evening. After Galbraith accused her of lying, Cary admitted that Plummer had left during the evening to go to the store. Galbraith asked her about an ax or hatchet. Cary stated it would be either in the front bedroom area in one of the drawers of the desks or in the shed outside. Galbraith went to the shed and found a hatchet leaning against a wood burning stove. Galbraith concluded the marks on the truck were likely from the hatchet.
While talking to Cary in the living room area, Galbraith found and confiscated as evidence an envelope that had writing on it that said, "Guns don't kill people, I kill people." Cary told Galbraith that it was Plummer's handwriting on the envelope. Galbraith testified that in a subsequent conversation with Cary in the district attorney's office Cary told him said she saw Plummer sharpen a hatchet on the night of Regan's assault.
Plummer subsequently was arrested in a rural area in Coconino County, Arizona, on an outstanding arrest warrant stemming from the Regan assault, after Plummer failed to appear in court. Cary was with Plummer when he was arrested.
B. Defense Evidence
William Colmer testified he knows both Plummer and Regan. Colmer, who was in jail in Santa Barbara for felony possession of methamphetamine on the night Regan was assaulted, testified Regan is considered a dishonest person in Regan's community. Following Colmer's release, Plummer told Colmer that on the night of the incident he went to Regan's house and "scuffled" in the dirt with Regan after a disagreement.
DISCUSSION
A. Fourth Amendment Claim
To be lawful, a warrantless entry into a residence to make an arrest requires probable cause to believe the suspect has committed a crime plus exigent circumstances. (Kirk v. Louisiana (2002) 536 U.S. 635, 638 [122 S.Ct. 2458]; People v. Thompson (2006) 38 Cal.4th 811, 817-818.) Plummer does not dispute probable cause existed for his arrest. Plummer instead contends there were no exigent circumstances when police arrested him in his home. He thus contends the trial court erred in denying his motion to suppress evidence seized by police after his warrantless arrest—the hatchet and note—and this error was prejudicial. We disagree.
" 'The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.' " (People v. Thompson, supra, 38 Cal.4th at p. 817, quoting Devenpeck v. Alford (2004) 543 U.S. 146, 152 [125 S.Ct. 588].) However, when, as here, the arrest occurs in the home, additional principles come into play: " 'It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable.' " (Ibid., quoting Payton v. New York (1980) 445 U.S. 573, 586 [100 S.Ct. 1371].)
"Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home 'can be overcome by a showing of one of the few "specifically established and well-delineated exceptions" to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507]), such as " 'hot pursuit of a fleeing felon, or imminent destruction of evidence,... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling' " (Minnesota v. Olson (1990) 495 U.S. 91, 100 [110 S.Ct. 1684] [italics added].) The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape.' [Citation.]" (People v. Thompson, supra, 38 Cal.4th at pp. 817-818, quoting People v. Celis (2004) 33 Cal.4th 667, 676.) "There is no ready litmus test for determining whether such [exigent] circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (People v. Ramey (1976) 16 Cal.3d 263, 276.)
Here, the trial court found the police's warrantless entry into Plummer's home was justified by exigent circumstances and thus reasonable. "In reviewing the trial court's ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 327.) However, when the underlying facts are not in dispute, we review the trial court's rulings independently. (People v. Williams (1988) 45 Cal.3d 1268, 1301.)
In its ruling, the trial court noted the police were in "hot" or "fresh" pursuit of a suspect that just 45 minutes to an hour earlier had reportedly swung an ax or hatchet at the victim, threatened to burn down the victim's house and told the victim he was his worst "fucking nightmare." In addition, the victim identified for police the name of his attacker (Plummer), how the suspect had abused and threatened him in the past, where the suspect lived, the make and color of the vehicle driven by the suspect and the direction the suspect took when he left the victim's house after the assault.
The court further noted that when police arrived at the suspect's house (still within an hour of the assault), they found fresh tire tracks and shoe marks that were consistent with the tracks and marks they found at Regan's house, where the assault occurred. Police then made contact with the suspect, which the court found was reasonable under the circumstances. Police knocked on Plummer's front door and asked him to step outside. Plummer refused, became belligerent and attempted to slam the door on the officer. Because police had information the suspect had an ax or hatchet, the court found it was "completely reasonable" for the officers to "have a concern of continued threat for public safety, certainly to the police officers, [and] to reach in and try to then [apprehend] that person that they have now determined to be the suspect of that alleged violent crime that occurred 45 minutes to an hour earlier."
On this record, we conclude (whether based on an independent or substantial evidence review) that police here were in "hot" or "fresh" pursuit of Plummer when they entered his home without a warrant and arrested him, and that such conduct by the police conforms to constitutional standards of reasonableness. (See People v. Hughes, supra, 27 Cal.4th at p. 327.) Indeed, we note the instant case is similar to the hot pursuit described by and found constitutionally permissible by our Supreme Court in People v. Escudero (1979) 23 Cal.3d 800 (Escudero).
Briefly, in Escudero, police were called at about 12:40 a.m. by an individual who witnessed a burglary in the house where he was staying. The suspect fled in his car. The individual got into his own car and followed the suspect. The suspect abandoned his car and fled on foot. The individual reported the crime to police, gave the police dispatcher a description of the suspect and provided other identifying information the individual obtained from the suspect's vehicle registration. (People v. Escudero, supra, 23 Cal.3d at pp. 804-805.)
At about 1:00 a.m., approximately 20 minutes after the burglary, police met the individual at the burglary scene. Police obtained additional information from the individual and requested backup to conduct a search of the area. In the interim, the police dispatcher learned from the Department of Motor Vehicles that the vehicle was registered to the suspect, who lived at a ranch in an outlying area. (People v. Escudero, supra, 23 Cal.3d at p. 805.)
The police dispatcher spoke with the owners of the ranch at about 1:25 a.m. The owners verified the suspect lived in a house on the ranch, the vehicle he drove (which the individual had followed) was presently parked in front of the suspect's house and the suspect matched the description the individual gave to police. (People v. Escudero, supra, 23 Cal.3d at p. 805.)
At about 1:40 a.m., approximately an hour after the burglary attempt, six police officers arrived at the ranch where the defendant lived. Police entered the suspect's house (after receiving permission to do so from the landlord) and arrested the suspect. (People v. Escudero, supra, 23 Cal.3d at pp. 805-806.)
Like Plummer here, the suspect in Escudero moved to suppress evidence obtained by the officers' warrantless entry, and the People sought to justify the entry on grounds of consent and fresh pursuit. (People v. Escudero, supra, 23 Cal.3d at pp. 804, 808.) Our Supreme Court rejected the consent theory but found fresh pursuit was applicable. (Ibid.) In so concluding, the court stated: "Throughout the events in question the police were pursuing a man whom they suspected of having broken into an occupied private home in the middle of the night to commit a burglary; this is a serious crime, with an ever-present potential for exploding into violent confrontation. The need to prevent the imminent escape of such an offender is clearly an exigent circumstance within the doctrine here invoked." (Id. at pp. 810-811, fn. omitted.)
We conclude the holding and reasoning of Escudero governs here. The record shows, and the trial court found, that police contacted Plummer about 45 minutes to an hour after the violent assault on Regan. During that period, like the police in Escudero, Galbraith and his partner investigated the crime, which included, among other things, interviewing Regan and taking measurements of tire tracks and shoe prints from the crime scene. Police then drove to Plummer's house, where they found the truck described by Regan, and matched the tire tracks and shoe prints they observed from the crime scene.
After additional police units arrived, Galbraith and his partner knocked on the suspect's front door to contact him. The suspect (Plummer) opened the door and identified himself as Plummer. However, Plummer next refused the police's simple instruction to step outside. He instead became belligerent and abusive towards, and tried to slam the door on, police, and retreated about 10 feet into his home. Because police had sufficient probable cause to arrest Plummer for the (alleged) violent assault on Regan, we agree with the trial court that the circumstances justified Galbraith immediately entering Plummer's residence to arrest him.
We further conclude two of the other enumerated exceptions to the warrant requirement also apply here—the " ' " 'need to prevent a suspect's escape [and the] risk of danger to the police or to other persons inside... the dwelling.' " ' " (People v. Thompson, supra, 38 Cal.4th at pp. 817-818, quoting Minnesota v. Olson, supra, 495 U.S. at p. 100.)
The evidence in the record shows Plummer refused to talk to police when they knocked on his door and asked him to step outside. Rather than comply with this simple instruction, Plummer tried to slam the door on police. In light of the fact Plummer (allegedly) had violently attacked Regan with an ax or hatchet about an hour before police contacted him, told Regan he would return to finish the job and burn his house down, and the fact police heard loud noises inside the residence when they approached the front door to contact the suspect, it was certainly reasonable for police also to conclude either their safety, or the safety of others inside the residence, were at risk when they entered his house to arrest him.
We thus reject Plummer's contention his warrantless arrest violated his Fourth Amendment rights. Because the record shows exigent circumstances justified the officers' warrantless entry, we conclude police did not illegally seize the hatchet and handwritten note.
Even assuming we accepted Plummer's contention that the trial court erred when it found exigent circumstances justified the police's warrantless entry into his home to arrest him, and that the court further erred when it refused to suppress the ax and note recovered in connection with his arrest, we nonetheless conclude Plummer has not established prejudice to warrant reversal of his conviction. (See People v. Watson (1956) 46 Cal.2d 818, 836-837.) We conclude the record contains substantial evidence, even without the ax and note, from which a jury could find Plummer guilty beyond a reasonable doubt (see People v. Tuilaepa (1992) 4 Cal.4th 569, 587), including, among other evidence, Regan's identification of Plummer as the person who violently attacked him. (See People v. Young (2005) 34 Cal.4th 1149, 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].)
B. Juror Misconduct
Plummer next contends the trial court erred when it denied his new trial motion based on juror misconduct. Plummer's juror misconduct claim is based entirely on the declaration of Juror No. 1, who states she and fellow jurors discussed and considered during deliberations the fact that Plummer did not testify at trial. Plummer also argues Juror No. 1 engaged in an additional act of misconduct when she did not disclose to the trial court or counsel that she witnessed Regan reviewing "notes" (as described by the prosecution), or a "script" (as alleged by the defense), prepared by the prosecutor, in a question and answer format, in the courthouse hallway before his trial testimony.
This issue first arose in Plummer's motion for mistrial. Plummer states in his brief to this court that there was substantial disagreement between the parties over what to call these documents. In his new trial motion, for example, Plummer referred to the documents given to various witnesses as "scripts," which he claimed were prepared by the prosecutor to "coach" certain witnesses at trial. The prosecutor, however, stated such documents were his "own personal working notes" and not a script or directive to any witness. He further stated the notes were prepared from police reports and the preliminary hearing transcript and they were not intended or used to coach, shape or color any testimony by a witness or for any improper purpose whatsoever.
In his brief to this court, Plummer has dropped his claim of prosecutorial misconduct, and instead now claims Juror No. 1 engaged in misconduct by failing to disclose the fact she witnessed Regan attempting to memorize the prosecution's notes before he testified at trial.
"When a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. 'First, the court must determine whether the evidence presented for its consideration is admissible.... [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct.... [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 475, quoting People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)
Jury misconduct, once established, "raises a presumption of prejudice, and ' "unless the prosecution rebuts that presumption..., the defendant is entitled to a new trial." ' " (People v. Cumpian (1991) 1 Cal.App.4th 307, 312, quoting In re Stankewitz (1985) 40 Cal.3d 391, 402.) " 'The presumption of prejudice "may be rebutted [, however] by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party...." ' " (People v. Cumpian, supra, at p. 312, quoting People v. Miranda (1987) 44 Cal.3d 57, 117.) " 'Whether a defendant has been prejudiced... depends upon "whether the jury's impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened and whether any asserted defense has been contradicted." ' " (Ibid.)
" ' "It is the trial court's function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct...." ' " (People v. Cumpian, supra, 1 Cal.App.4th at p. 311, quoting People v. Wisely (1990) 224 Cal.App.3d 939, 947.) However, if the trial court concludes, based on its evaluation of the evidence, that misconduct occurred and denies the motion for new trial based on lack of prejudice arising from the misconduct, " ' "a reviewing court has a constitutional obligation... to review the entire record, including the evidence, and to determine independently whether the act of misconduct... prevented the complaining party from having a fair trial. [Citations.]" ' " (Ibid.)
Plummer contends the jury's verdict was improperly based on his failure to testify. While we agree with Plummer and the trial court that the comments identified by Juror No. 1 constituted misconduct, we nonetheless conclude Plummer suffered no resulting prejudice.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." (U.S. Const., Fifth Amend.) Accordingly, jurors are strictly forbidden to draw adverse inferences from a defendant's failure to testify or to consider or discuss that fact during their deliberations. (See, e.g., CALCRIM No. 355.) Credible evidence that jurors disobeyed the court's instruction not to consider or discuss the defendant's failure to take the stand is sufficient to support a finding of misconduct. (See, e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1425; People v. Hord (1993) 15 Cal.App.4th 711, 725.)
The jury was instructed with CALCRIM No. 355, which provides: "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
In People v. Leonard our Supreme Court found no prejudicial misconduct where the jurors "merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better." (People v. Leonard, supra, 40 Cal.4th at p. 1425.) According to the court, such statements are " 'not the same as punishing the Defendant for not testifying [or] drawing negative inferences from the absence of testimony.' " (Ibid.)
Similarly, in People v. Hord the court stated that "[a] passing reference to an inappropriate matter" (15 Cal.App.4th at p. 727), such as the defendant's failure to testify, may not be prejudicial, if it is "not 'inherently likely' to have affected the vote of any of the jurors...." (Ibid.) "Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion." (Id. at pp. 727-728.) A finding that "only some of the jurors recalled the comments" supports that there was "not a discussion of any length or significance." (Id. at p. 728.)
Here, in determining that no prejudice resulted from the improper discussion, the trial court relied on the fact the jury acquitted Plummer of the most serious charge in this case, attempted murder. The trial court noted Juror No. 1 reminded the rest of the jurors they could not consider Plummer's decision not to testify, and further noted there was no evidence before it the jury, including Juror No. 1, had agreed to convict Plummer on two counts (and acquit on the attempted murder count) based on his decision not to testify.
We agree with the trial court's analysis. The record, including the declaration of Juror No. 1 in support of Plummer's new trial motion, does not support a finding the jury punished Plummer for exercising his constitutional right not to testify. (See People v. Leonard, supra, 40 Cal.4th at p. 1425.)Indeed, as the trial court noted, the jury acquitted Plummer of the most serious charge—attempted murder. We therefore conclude any reference to Plummer's decision not to testify was not "inherently likely" to have affected the vote of the jurors regarding Plummer's guilt or innocence. (See People v. Hord, supra, 15 Cal.App.4th at p. 727, quoting People v. Hill, supra, 3 Cal.App.4th at p. 38.)
In addition, the declaration of Juror No. 1 states that when she reminded the jury they could not consider the fact Plummer did not testify, she claims the other jurors "did not care" and her comment "went right over their heads." We conclude such testimony is inadmissible under Evidence Code section 1150, subdivision (a), which bars admission of evidence of the jurors' mental processes on the question of juror misconduct. (See People v. Cox (53 Cal.3d 618, 694 [Evidence Code section 1150 "makes a 'distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved,' " which rule " 'prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent' "], disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Evidence Code section 1150, subdivision (a), provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
Finally, as to the matter of the prosecutor's notes, the trial court found, and the record shows, the jury was fully advised of this issue and it was thoroughly litigated at trial. The issue initially surfaced during witness questioning. It came up a second time when defense counsel was allowed to recall those witnesses who were provided with such notes and to question/cross-examine them extensively again in front of the jury regarding them. In addition, both counsel thoroughly argued the issue during closing argument.
Moreover, after the witnesses were recalled and asked specifically about the notes (or "scripts," as Plummer describes them), the trial court found each witness testified he or she had testified at trial from his or her own independent recollection or memory, and not from the notes. The court further found it had no information suggesting that any of the answers in the notes included a different spin, or used words that were more compelling or shaded, than the information obtained in pretrial discovery (e.g., from police reports, preliminary hearing testimony, and the like). The trial court instead noted the notes appeared neutral and that all of the witnesses (other than Cary) testified they did not feel compelled or directed to say anything, and that the information in the notes given to them by the prosecutor was in fact the truth.
As to Cary, the court noted her answers were in some cases much different from the answers in the notes she was given.
We agree with the trial court that it was unusual for witnesses to receive such notes and by no means do we condone that practice here. However, we also conclude Plummer suffered no prejudice even assuming Juror No. 1 engaged in misconduct by not disclosing the fact she had witnessed Regan (allegedly) trying to memorize the information in such notes before he testified at trial.
As noted, the record shows the jury was fully apprised of this issue, including having the notes as exhibits. In the end, it was for the jury to decide whether to believe or disbelieve the testimony of any of the witnesses, including Regan and the other witnesses who received such notes, and what weight, if any, to attach to their testimony. (See People v. Young, supra, 34 Cal.4th at p. 1181 [the jury is the "sole judge of the credibility of witnesses"].) On this record, we thus reject Plummer's contention that Juror No. 1 engaged in prejudicial misconduct.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: HUFFMAN, J., McINTYRE, J.