Opinion
H029542
5-9-2007
THE PEOPLE, Plaintiff and Respondent, v. SAMMY SALVADOR REYNAGA, Defendant and Appellant.
NOT TO BE PUBLISHED
On July 7, 2005, the Santa Cruz County District Attorney filed an amended information in case number F09677 charging appellant with various offenses occurring on different dates. Counts one through seven were alleged to have occurred on January 15, 2005. Count one charged battery with injury on a police officer (Pen. Code, § 243, subd. (a)(2)); count two, resisting a police officer with serious bodily injury (Pen. Code, § 148.10); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, resisting a police officer (Pen. Code, § 148, subd. (a)(1)); count five, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); count six, driving with a blood alcohol level of .08 (Veh. Code, § 23152, subd. (b)); and count seven, driving with a suspended license (Veh. Code, § 14601.2 subd. (a)). As to counts one through three, the information alleged that at the time of the commission of the offenses appellant was released from custody within the meaning of Penal Code section 12022.1.
Counts eight through 11 were alleged to have occurred on June 17, 2004. Count eight charged possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count nine, possession of an ingestion device (Health & Saf. Code, § 11364); count 10, giving false information to a police officer (Pen. Code, § 148.9, subd. (a)); and count 11, driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).
Count 12 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), alleged to have occurred on April 14, 2004. Count 13 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)) alleged to have occurred on June 1, 2003.
The information alleged that appellant had one prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i) and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On July 20, 2005, a jury found appellant guilty on all counts except count three and found true the on-bail enhancements as to counts one and two.
After waiving a jury trial, appellants prior conviction was tried to the court. The court found the prior conviction allegation to be true.
On October 24, 2005, the court sentenced appellant to an aggregate term of eight years consisting of the mid-term of three years on count two doubled because of the prior strike (Pen. Code, § 667 subds. (b)-(i)), plus two years for the on-bail enhancement (Pen. Code, § 12022.1). On count one, the court imposed the mid-term of two years plus two years for the on-bail enhancement to run concurrently with the sentenced imposed on count one. In addition, the court imposed the mid-term of two years on count eight to run concurrently. Further, the court imposed and stayed two one-year terms for the prison priors. In addition, the court sentenced appellant to 30 days in the county jail for counts four through seven and nine through 13 to be served concurrently with the prison term. The court awarded appellant 355 days actual credit and 118 days of Penal Code section 4019, subdivision (b) credits for a total of 473 days of credit for time served.
Appellant filed a timely notice of appeal.
On appeal, appellant raises nine issues. First, he contends that the judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that he "took or attempted to take a deal." Second, his conviction on count two must be reversed because the evidence is insufficient to support a finding that he was the proximate cause of Officer Hughess injuries. Third, his convictions on counts one and two must be reversed because the evidence is insufficient to show the statutory element of a lawful arrest. Fourth, he may not be convicted of a violation of Penal Code section 243, subdivision (c) because Officer Hughess testicular injury did not require medical treatment. Fifth, his conviction on count four, misdemeanor resisting arrest must be reversed because the jury may have found him guilty based on the facts charged in count two. Sixth, his conviction on count four must be reversed because the jury was not given a unanimity instruction. Seventh, the true finding as to one of the on-bail enhancements (Pen. Code, §12022.1) must be reversed because the evidence was insufficient to support a finding that he was convicted of a primary felony. Eighth, the true findings on both on-bail enhancements must be reversed because the trial court failed to give the jury any instructions on the elements of the enhancements. Ninth, the on-bail enhancements must be reversed because the prosecutor committed misconduct during closing argument by presenting facts to the jury that were extraneous to the evidence presented at trial. We find merit in appellants first contention and reverse the judgment.
Facts and Proceedings Below
Prosecutions Case
Count 13 — June 1, 2003, Driving On a Suspended License (Veh. Code, § 14601.2, Subd. (a))
At approximately 7:30 p.m. on June 1, 2003, Capitola Police Officer Andrew Dally observed a gold-colored Ford Explorer driving on Rosedale Avenue. Officer Dally knew appellant and recognized him as the driver of the Explorer. Mary Reynaga was in the front passengers seat. Appellant turned left and passed Officer Dallys car. Officer Dally radioed his dispatcher, asking the dispatcher to check the status of appellants drivers license. He learned it was suspended. Officer Dally located appellants vehicle approximately 10 minutes later parked at Mary Reynagas home. Appellant was not there. Officer Dally submitted a report to the district attorneys office.
Count 12 — April 14, 2004, Driving On A Suspended License (Veh. Code, § 14601.2, Subd. (a).)
At approximately 1:00 p.m. on April 14, 2004, Santa Cruz Police Detective Brent Northrup was in plain clothes driving an unmarked police car. He observed that a white Volvo failed to stop at an intersection. The Volvo pulled in front of him, causing him to brake to avoid a collision. He sounded his horn. Detective Northrup "pulled the [vehicles emergency] light down, so it was visible to the people in front of [him] [and] activated the light . . . ." The Volvo did not stop. Detective Northrup "activated the siren just briefly" "and [the Volvo] pull[ed] over." Appellant was the driver and Genevra Migliore was the passenger. Detective Northrup walked to the car and spoke with appellant. He cited appellant for driving on a suspended license.
Counsel stipulated that appellants license was suspended from 2003 through the present time and that appellant had knowledge of the suspension.
Counts 8-11, Multiple Offenses, June 17, 2004
At approximately 6:56 p.m., on June 17, 2004, Santa Cruz Police Officer Holly Hoy was driving on Ocean Street. She pulled her police cruiser in behind a 1980 blue Buick that had a non-operational brake light and an expired registration tag. After she activated her emergency equipment (lights and siren), the Buick stopped. Officer Hoy approached the drivers side of the car and asked the driver for identification. The driver, who later identified himself as appellant, gave his name as Jesse Reynaga. He said he was going to the hospital because his passenger was pregnant and having problems. Officer Hoy offered to call an ambulance, but neither appellant nor the passenger said one was necessary. Appellant provided no written identification. He gave his date of birth as October 29, 1974. Officer Hoy noticed appellant bend over and reach down by his seat with his right hand. The passenger was moving around also. Officer Hoy told appellant and the passenger to keep their hands where she could see them. Officer Hoy noticed that the passenger had a metal object beneath her left leg. The passenger said that it was a knife, which she handed to Officer Hoy. Officer Hoy placed it on top of the car.
After Officer Hoy called for other officers to help, Officers Romel Cuellar and Karina Cecena arrived. Officer Cuellar watched the passenger while Officer Cecena talked with appellant. Eventually, appellant admitted that he was Sammy Reynaga. When Officer Hoy learned that appellant had outstanding warrants, she handcuffed and searched him. The passenger was removed from the car, but not searched. Officer Hoy did not see appellant hide anything. Officer Hoy seized two pipes from appellant. One of the pipes was used to smoke marijuana, the other methamphetamine.
When the officers searched the car, Officer Cuellar located a bubble-wrap package between the seat and the middle armrest. The package contained methamphetamine. Officers Hoy and Cuellar did not know who placed the methamphetamine in the car. The police determined that Curtis Welch was the registered owner of the car.
It appears that the package contained two small wrapped packages of powder. Only one of the packages was weighed and determined to contain .21 grams. The other package was not weighed.
Crime scene investigator Frank Deniz examined the bindles for fingerprints but did not find prints that had sufficient evidentiary value.
Counts 1-7, Multiple Offenses, January 15, 2005
On Saturday, January 15, 2005 around 7:50 p.m., University of California, Santa Cruz Police Officer Brian Hughes was in the area of King and Bay streets. This area is a residential neighborhood with a speed limit of 25 miles per hour. A stoplight controls the flow of traffic. Officer Hughes was in uniform and in a marked police car. Officer Hughes heard a car approach from behind him. He saw a white Honda, going approximately 40 miles per hour. When the stoplight turned green, the Honda cut between Officer Hughess patrol car, missing it by less than a foot, and a green Cadillac. The Honda pulled into the right-turn lane, but proceeded straight across the intersection. This caused the Cadillacs driver to slam on his brakes to avoid a collision.
Officer Hughes activated his vehicles overhead red and blue emergency lights. He pursued the Honda as it went down King Street at speeds between 40 and 45 miles per hour. The posted speed limit was 25 miles per hour. The Honda failed to stop at a stop sign. Then, the Honda slowed, but did not stop at another stop sign. Eventually, the Honda turned right onto Miramar Drive. Officer Hughes followed and saw the Honda stopped in the middle of the road. He had lost sight of it for one to two seconds. Officer Hughes stopped approximately 10 feet behind the Honda. The emergency lights on his patrol car remained on.
Officer Hughes saw a driver, a passenger in the front passenger seat, and a dog in the back seat of the Honda. The driver, who Officer Hughes subsequently identified as appellant, started to get out the drivers side of the Honda. Officer Hughes yelled, "Police. Stop. Hold it right there." Appellant still had his right foot on the brake. He looked at Officer Hughes, and took his foot off the brake, allowing the car to roll backwards and hit Officer Hughess car.
Appellant ran. He staggered and stumbled. At one point, he had to put both his hands down in order to regain his balance. Officer Hughes notified the police dispatcher of his location and that he was in foot pursuit. Officer Hughes yelled, "Police. Stop. Get on the ground." Appellant continued to flee.
Appellant stopped in the driveway of a house approximately six feet in front of Officer Hughes. Officer Hughes told appellant, "Get on the ground. Put your hands behind your back." Appellant did not comply. Appellant put his hands up, holding his fists in a threatening manner, and according to Officer Hughes, yelled in a demanding, desperate tone, "What did I do?" Officer Hughes told appellant, "Get down on the ground. Put your hands behind your back." Appellant did not comply. Remaining in the same threatening posture, appellant yelled, "What did I do?" Appellant took a step towards Officer Hughes. Officer Hughes thought appellant intended to attack him. As a result, Officer Hughes "pretty much put [his] left hand up, caught [appellants] left hand and held it as [he] reached around with [his] right hand . . . to come around [appellants] back to put him a bear hug . . . ."
Officer Hughes got appellant to the ground. He was on appellants back with his hands around appellant. Appellant was on his hands and knees. Officer Hughes wanted to "find out what [was] going on with [appellant]. He was out of control." At this point, Officer Hughes was unable to get appellants hand behind his back. Appellant "fought . . . the whole time."
Officer Hughes hit appellant above his right elbow with a flashlight. Officer Hughes struck appellant "to get compliance." He was trying to get appellant to listen, so that he could handcuff appellant. Officer Hughes explained that his use of his hands was not working because appellant "was resisting and fighting."
Officer Hughes explained, "I had to step up my use of force." The one blow with the flashlight had "no effect on [appellant] whatsoever." While appellant was struggling, appellant said, "I wasnt driving. I was in the passenger seat. I switched places with the driver." Officer Hughes told the jury that appellant did not have time to switch places.
Appellant continued to resist, knocking the flashlight from Officer Hughess hand. Appellant "was still on the ground on his hands and knees and [Officer Hughes] was on top of him on his back still trying to grab his arms and legs." As appellant continued to resist, Officer Hughes yelled at appellant from "probably less than a foot from [appellants] ear" that he was going to use pepper spray if appellant kept resisting. Officer Hughes pulled out his pepper spray, grabbed appellants "hair on the back of [appellants] head with [his] left hand and . . . pepper sprayed [appellant]," from approximately one to one and one-half feet away.
Appellant, who was still on his hands and knees, "grabbed the pepper spray with both hands, rolled over onto his back." Appellant said, "You pussy. You need a crutch to fight." Officer Hughes and appellant struggled over the pepper spray canister. During the struggle, Officer Hughess radio microphone, which had been attached to his shirt, was pulled off. Officer Hughes heard his dispatcher ask for his location because "she didnt know where [he] was and no one was coming." Officer Hughes told his dispatcher where he was and to send help "Code 3 . . . , which means send as much [as] you can, lights and siren." As the struggle continued, appellant hit Officer Hughes, which caused Officer Hughes to punch appellant in the mouth. Appellant let go of the pepper spray can.
Officer Hughes explained that appellant "started reaching up on [his] duty belt, [his] gun belt. [Appellant] started reaching up and grabbing everything on [his] gun belt, every compartment." Officer Hughes was concerned that appellant might grab his gun and tried to prevent appellant from so doing.
Officer Hughes explained, "[Appellant] eventually grabbed the pepper spray [can] with one hand and then his other arm — as he is laying [sic] on his back and Im straddled pretty much kneeling over him he reaches down between my legs and punches me twice in the testicles." The blow was "very painful." Then, appellant "grabbed a hold of [Officer Hughess] testicles, squeezed them, twisted them and drove them, just pushing them and driving them up into [Officer Hughes]." This caused "a wave of pain so bad [Officer Hughes] thought [he] could possibly black out." Eventually, appellant let go of Officer Hughess testicles, "scooted out" from under Officer Hughes, and ran in the direction of the cars.
After appellant broke free, Officer Hughes did not see where appellant went other than in the general direction of their cars. Officer Hughes ran in that direction. He lost sight of appellant. He saw Santa Cruz Police Officer Teaford. Then, Officer Hughes saw appellant come out from a hedge. Appellant looked at Officer Teaford and stopped. Officer Teaford told appellant to "get down. To stop." Then, he began to run again. Officer Hughes approached appellant from the rear, again placing him in bear hug. Officer Hughes explained, "I picked him up and just threw him to the side towards the ground." As Officer Hughes did so, his left knee twisted and he felt a "pop." Appellant fell to ground, but continued to resist. Officer Hughes explained, "Well, once [appellant] was on the ground[,] I put my left arm around his neck and held his neck and shoulders down while Officer Teaford got a hold of one of his hands, got it handcuffed and [appellant] was keeping his other hand underneath him and wouldnt give it up."
Eventually, Officers Hughes and Teaford were able to place appellant in handcuffs. Appellant said, "I wasnt driving. The driver ran off." Officer Hughes smelled alcohol on appellants breath and noted that his speech was slurred. Based upon appellants driving, his staggering, the smell of alcohol, and slurred speech, Officer Hughes concluded appellant had been driving while under the influence of alcohol.
Appellant was approximately five feet, eight inches tall and weighed slightly more than 180 pounds. Officer Hughes was five feet 10 inches tall and weighted between 165 and 170 pounds. As soon as the officers handcuffed appellant, Officer Hughes told Officer Teaford that he had to get up and walk because he had hurt his knee. As he did so, he noted that it was swollen and "very sore."
Later that evening, Officer Hughes had another officer drive him to the hospital. Officer Hughes was given "Vicodin, crutches and a soft leg sprint that pretty much [ran] from [his] thigh to [his] ankle and [was told that his knee] was so swollen and sore they couldnt really diagnos[e] it other than a knee sprain." He sustained abrasions on his arms, knees, and hands. Officer Hughes mentioned the injury to his testicles, which remained sore and swollen for "at least a week."
Several days later Officer Hughes saw another doctor who prescribed physical therapy for the knee injury. He did as directed, but two weeks later his knee was still swollen. Officer Hughes consulted an orthopedic surgeon, who performed surgery on his knee, on April 29, 2005. He suffered a torn anterior cruciate ligament and lateral meniscus tear. The surgeon explained that recovery time is somewhat lengthy and the injury subjected Officer Hughes to an increased risk of arthritis. The surgeon explained that throwing someone to the ground could be enough force to damage an earlier repair.
Officer Hughes had a previous successful ACL repair in 1991.
Officer Cecena and Sergeant Tony Parker searched the Honda. Sergeant Parker found a partially empty can of Coke between the center console and the drivers seat. Using tweezers, Officer Cecena pulled a plastic bag containing a partially saturated white substance from the can. Sergeant Parker and Officer Cecena did not know how long the bag was in the can, or who put it there. The police found a prescription bottle on appellant, which contained marijuana. Genevra Migliore was determined to be the registered owner of the Honda.
While at the hospital with Officer Hughes, Officer Robinson saw appellant on a gurney. Appellant smelled of alcohol. Accordingly, Officer Robinson ordered a blood test. Appellant became agitated and initially refused to submit to the blood draw. Eventually, Officer Robinson obtained some of appellants blood at 11:44 p.m.
Criminalist Scott Armstrong testified as an expert on forensic alcohol testing and the effects of alcohol and its relationship to the ability to drive. He determined appellants blood alcohol was .09 at the point the sample was taken. He estimated appellants blood alcohol level would have been .17 four hours earlier when appellant was driving. He testified that a person with a blood alcohol level of .08 exhibits impaired judgment, delayed decision-making, decreased visual acuity, decreased reaction time and decreased ability to multitask while driving. In addition, he explained that persons under the influence might have red or watery eyes, stagger when walking, respond to questions more slowly, their driving patterns could include speeding and a failure to follow marked signs and turn lanes.
Defense Case
Dr. Terry Labid saw appellant at the hospital on January 13, 2005. Appellant had a broken rib. Dr. Labid prescribed Vicodin and told appellant not to take Vicodin with alcohol and not to drive.
Jesse Reynaga, appellants brother, saw appellant on January 16, 2005. Appellant had scratches on his elbows and arms and nail marks on his back. On January 15, 2005, appellants brother had not seen any injuries.
Kenneth Barnes, a former police officer, and professor of Administration of Justice at Arizona Western College, testified for the defense. He testified as an expert in police practices, jail practices, police pursuits and the use of force.
Barnes examined the policies on the use of force of the University of California at Santa Cruz. He explained that the universitys policy uses a continuum of force that depends on the amount of resistance that the suspect exhibits.
Barnes opined that Officer Hughes had the right to chase appellant. However, in his opinion, Officer Hughes became aggressive when he cornered appellant. According to Barnes, Officer Hughes failed to tell appellant why he was being arrested, failed to attempt to calm appellant down, and failed to take out or display his nightstick before he tackled appellant. Once Officer Hughes grabbed appellant, the only tool Officer Hughes had left was to fight. Barnes believed that Officer Hughes should have grabbed appellants hand and twisted it rather than using a bear hug. In Barness estimation, Officer Hughes used excessive force when he tackled appellant.
Barnes conceded that appellant did not stop when Officer Hughes activated his lights, and that appellant ran and failed to comply when Officer Hughes told him to get down. However, Barnes told the jury that Officer Hughes should not have tackled appellant and Officer Hughes was the aggressor.
Rebuttal
Santa Cruz Deputy Sheriff Frank Eryavec testified as an expert in compliance techniques. He explained to the jury that use of force involves a continuum. When a person is cooperative, the officer uses his professional presence and verbalization to restrain and detain. When a subject goes limp or fails to comply with instructions, an officer may lift the subject or use a pain compliance technique. When there is active resistance or "assaultive" behavior, an officer may employ force, short of deadly force, including pepper spray, striking implements or carotid compression holds. When a person threatens the life of the officer or another, an officer may employ deadly force. Deputy Sheriff Eryavec explained that the amount of force used might be influenced by whether the officer is alone and whether help is coming. In this case, appellants driving behavior was aggressive, and appellant left the car and allowed it to roll into the officers car. Once appellant ran into an alley and became aggressive, Officer Hughes no longer was obligated to answer appellants questions because Officer Hughes was in hot pursuit. Under these circumstances, Officer Hughes could have used pepper spray and his baton. Deputy Sheriff Eryavec explained that it was reasonable for Officer Hughes to tackle appellant, use his flashlight, and punch appellant in the mouth. In Deputy Sheriff Eryavecs opinion, once appellant grabbed Officer Hughess testicles and reached for his duty belt. Officer Hughes would have been justified in using deadly force.
Discussion
I. Motion for Mistrial
Background
On July 29, 2003, the court conducted jury selection. Although the voir dire was reported, initially, it was not transcribed. After the court excused the jury for the day, defense counsel made a motion for a mistrial. Specifically, defense counsel explained the basis for the mistrial as follows: "[DEFENSE COUNSEL]: Yes. Thank you. Yes, Your Honor. As the Court where he dealt with side bar, Ms. — indicated or presented before the jury that there were discussions by Ms. Migliore who was described as [appellants] girlfriend out in the hallway with the nursing infant. And I think we all know what Ms. Migliore said regarding about the daddy taking a deal. And Ms. [juror name redacted] then blurted this out before the entire jury panel. And then it was basically hushed over, and then we had a side bar discussion. At side bar I indicated that I thought it needed to be addressed. Court indicated he would need to addressed [sic] it later. At this point I would ask the Court to mistry the case because I believe that would impact jurors in their determination as to whether Mr. Reynaga was in fact worthy of his presumption of innocence and issues regarding his culpability for any of his offenses."
The prosecutor characterized the incident as a "minor inadvertent slip." The prosecutor noted that the statement "wasnt really taken into context with what meaning that statement would have had to the other jurors. Certainly, she didnt say that in a voice as loud as myself or [defense counsel]. I doubt if even the bulk of the jurors heard it. Certainly there wasnt any type of a reaction that I saw from any of the jurors sitting around her or anywhere else in the courtroom when she made the particular statement."
The court indicated that it was "disturbed" by the incident. However, the court went on to note the following: "I had difficulty at first understanding what she said because it appeared to have come out just as — it was nonresponsive to what she was talking about. It was almost something she was waiting to blurt out as opposed to it came out at the end of an answer to a question. It was totally nonresponsive to the question. I had difficulty with — it had something to do with substance abuse I think I was asking her about, and this came out."
The court explained to defense counsel and the defendant that although it was "unfortunate that somebody [said] that, that cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case, that a deal has been offered, so that it cuts both ways. And I dont think in the particular context when this came out, and part of it was the demeanor, she was very soft spoken, that I just dont think it had the effect that it might have had in another context, just the words she uttered. I just dont think its a sufficient basis for the Court to grant the motion, and Im going to deny the motion."
Defense counsel indicted that she wanted to make a record. Defense counsel noted that at the time prospective juror number 18 made the statement, she "notice[d] several jurors actually raise their eyebrows, kind of stiffen, and/or take a look at her direction and/or [the prosecutors] and mine particularly."
The court replied that it was "not saying people did not hear it. Im not joining in that. Im not sure people heard the words uttered. I do not believe in that context it has a dramatic effect as it might otherwise have had, and I think the actual words she uttered and in the context it was said, because it really was sort of nonresponsive and could cut either way in this case in terms of what was being proposed. [¶] All right. In any case, the motion is denied."
To begin with, we note that the record was insufficient for this court to address this issue. Accordingly, on this courts own motion we ordered that the record be augmented with the reporters transcript of the voir dire. (Cal. Rules of Court, rule 8.761.)
During the courts questioning of prospective juror number 18, who was in the jury box with other prospective jurors, the following exchange took place.
"THE COURT: . . . Is there anything about the fact that you dislike substance abuse that causes you to believe that you cant be fair and impartial?
PROSPECTIVE JUROR #18: Im in a relationship with someone who has the same issue. And I believe I met his —sitting out there, I met a woman who was talking to her baby about maybe daddy will take a deal and these people are here for daddy; just sitting outside.
THE COURT: Oh, I see. You lost me for a minute. Youre saying you overheard a conversation perhaps you shouldnt have overheard. Let me get back to you in a minute."
The court went on to address the prospective jurors concerning their perceptions of police officers in general.
Shortly thereafter, the court informed the prospective jurors that it had a supplemental list of witnesses that the court would read to them. The court read the following: "Genevera Migliori [sic], who happens to be the person that you were listening to outside."
After more questioning of prospective jurors, the court stated that it needed "to ask some questions of [name redacted] out of the presence of the other jurors." At a side bar conference, the following exchange took place.
"THE COURT: I think what happened is she just inadvertently heard a conversation out of the [sic].
THE COURT REPORTER: Im sorry, I cant hear.
THE COURT: That it was to be Mr. Reynaga, and she was talking about something potentially — what I need to ask you is just, is she speaking loud enough so a bunch of people heard?
PROSPECTIVE JUROR #18: Straight to her baby.
THE COURT: You just happened to be right there?
PROSPECTIVE JUROR #18: Yeah. Maybe the girl on the other side, but I dont think so."
The court excused prospective juror number 18 for cause.
After the jury was impaneled, defense counsel made a motion for a mistrial as noted ante.
Appellant contends that his "judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that [he] took or attempted to take a deal." Appellant asserts, "the jurys inadvertent receipt of information regarding a deal offered to appellant raised a rebuttable presumption of misconduct. Because the statement could have permitted [the] jury to infer guilt before it heard any evidence in the present case, the receipt of the information was prejudicial and [his] judgment of conviction must be reversed."
Respondent concedes, as do we, that appellant has a right to an impartial jury, but argues that what happened here did not violate that right. We are not so convinced.
A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722 ; In re Hitchings (1993) 6 Cal.4th 97, 110.)
Essentially, the issue we must resolve is whether the receipt of the information that "maybe daddy will take a deal," was information obtained by the jurors that could have permitted the jury to infer guilt before it heard any evidence.
It is important to note that the court dismissed prospective juror number 18 from the jury for cause. However, it is apparent from the record that she conveyed the information she received to the rest of the prospective jurors during voir dire; and the court made the rest of the prospective jurors aware that Ms. Migliore, the person who made the statement, was related to the case in which they were to be jurors.
"[A] jurors inadvertent receipt of information that had not been presented in court falls within the general category of juror misconduct. " (People v. Nesler (1997) 16 Cal.4th 561, 579 (Nesler).)
In Nesler, during the sanity phase of the trial, a juror engaged in misconduct by sitting in a bar while a woman revealed damaging information about the defendant for half an hour. The juror did not identify herself as a juror and did not leave. She did not disclose the outside information or its source to the trial court. Instead, the juror violated her oath and disregarded the trial courts instructions by revealing the information to the other jurors. She used this information during deliberations to persuade the other jurors to change their views. (Nesler, supra, 16 Cal.4th at p. 579.) Our Supreme Court found the juror was actually biased and the presumption of prejudice that arose from her misconduct was not rebutted. (Id. at p. 589.)
"Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term misconduct, it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut." (Nesler, supra, 16 Cal.4th at p. 579.) Thus, "[j]uror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias." (Id. at p. 578.)
In Nesler, supra, 16 Cal.4th 561, a plurality of the California court concluded that when a criminal defendant appeals the denial of his or her motion for a new trial on grounds of juror misconduct, this court must independently review, as a mixed question of law and fact, the trial courts conclusion that no prejudice arose from the misconduct. (Id. at p. 582, fn. 5, (lead opn. of George, C. J.).) "We accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" (Id. at p. 582.)
"We assess the effect of out-of-court information upon the jury in the following manner. When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not inherently prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was actually biased against the defendant. If we find a substantial likelihood that a juror was actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard. [Citation.]" (Nesler, supra, 16 Cal.4th at pp. 578-579, italics added.)
Respondent characterizes this issue as one of spectator misconduct. However, we view it as an outside influence that could have affected the jurys perception of guilt or innocence.
Although not specifically articulated in the Constitution, the presumption of innocence is an integral part of the right to a fair trial. (Estelle v. Williams (1976) 425 U.S. 501, 503 .)
The logical inference of the information that "maybe daddy will take a deal" (hereinafter "the statement") is that appellant was not innocent of the charges and could settle the case before trial. Thus, the statement eroded the presumption of innocence before any evidence was presented. Judging the statement objectively, it is so prejudicial in and of itself that it is inherently and substantially likely to have influenced the jurors. Even though the court below instructed the jury that in a criminal action a defendant is presumed innocent, at least some of the jurors were aware after the statement that that was not be the case—something that would be difficult if not impossible to erase from memory.
"Under California law, if a jurors partiality would have constituted grounds for a challenge for cause during jury selection . . . but the jurors concealment of such a state of mind is not discovered until after trial and verdict, the jurors actual bias constitutes misconduct that warrants a new trial under Penal Code section 1181 . . . ." (Nesler, supra, 16 Cal.4th at p. 581.)
Here, however, although prospective juror number 18 did not conceal anything about her receipt of information, on recognizing the potential for juror bias in this case, the court dismissed her for cause. Thus, implicitly the court concluded, as do we, that prospective juror number 18 could not be impartial because she overheard the statement. Nevertheless, the court did not dismiss the rest of the prospective jurors, even though the court was aware that they "heard the words uttered" by prospective juror number 18.
Respondent argues that it was unclear the prospective jurors heard the words uttered. The record belies such a conclusion. First, prospective juror number 18s statement was loud enough for the court reporter to hear and record it. Second, defense counsel noted that she "happened to be looking at [prospective juror number 18], and at the time she made that statement, and I did notice several jurors actually . . . stiffen, and/or take a look at her direction, and/or [the prosecutors] and mine, particularly."
The only finding pertaining to the remaining jurors impartiality that the court made was that it "cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case; that a deal has been offered." This conclusion would be acceptable if the information that the jurors received was that "daddy was offered a deal." That was not the information that the prospective jurors received.
Since Judge Stevens dismissed prospective juror number 18 for cause, he must have concluded that prospective juror number 18s impartiality was affected by hearing the statement. Accordingly, we find it to be unreasonable that he could conclude that the rest of the jurors were not inherently and substantially likely to have been influenced by the statement as well. Prospective juror number 18 relayed the statement to them, the court told the remaining jurors that Ms. Migliore was related to the case, and the prospective jurors heard the statement.
At one point, the court concluded "the statement" did not have "the affect that it might have had in another context, just the words she uttered." Again, the record does not support this assertion. Defense counsel noted for the record that she was looking at the prospective jurors when "the statement" was relayed to the court and "notice[d] several jurors actually stiffen, and/or take a look at her direction, and/or [the prosecutors] and mine, particularly." If the prospective jurors had not heard "the statement" or understood it in context, they would not have reacted as they did. Accordingly, we do not find substantial evidence to support the trial courts conclusion.
We cannot say how many of the prospective jurors seated in the box were on the final jury that was impaneled. However, even if we were to assume for the sake of argument that only the original 18 prospective jurors in the box heard the statement, it appears that at least three or four of the original 18 made it to the final panel. Given that a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors, it is settled that a conviction cannot stand if even a single juror has been improperly influenced. (In re Carpenter (1995) 9 Cal.4th 634.)
Since we have concluded that there appears to be a substantial likelihood of juror bias, appellant was deprived of his right to a unanimous verdict of 12 impartial jurors. Thus, the trial court erred in denying his motion for a mistrial. (Nesler, supra, 16 Cal.4th at p. 590.)
Given that the judgment must be reversed, it is not necessary to address appellants remaining contentions.
Disposition
The judgment is reversed. The matter is remanded to the trial court for a new trial.
We concur:
RUSHING, P. J.
PREMO, J.