Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-050039-7
SIMONS, J.
Defendant Luis Miguel Rodriguez-Ponce (appellant) appeals from the judgment entered following his conviction by a jury of murder, two counts of attempted murder, and one count of shooting at an occupied motor vehicle. He contends the trial court erred in admitting certain testimony from a police forensic specialist, the prosecutor committed prejudicial misconduct, and the court erred in denying his motion for new trial based on juror misconduct. We affirm.
PROCEDURAL BACKGROUND
By information filed on January 18, 2005, the District Attorney of Contra Costa County alleged that on or about January 11, 2004, appellant and codefendant Jose Torres committed four crimes: the murder of Max Antonio Cruz-Garcia (Pen. Code, § 187) (count 1); the attempted murder of Joshua Sterio (§§ 187, 664) (count 2); the attempted murder of Angel Suazo-Garcia (§§ 187, 664) (count 3); and shooting at an occupied motor vehicle (§ 246) (count 4). The information alleged with respect to each count that appellant personally and intentionally discharged a handgun and, in the case of count 1, proximately caused great bodily injury. (§ 12022.53.) The information also alleged with respect to each count that appellant committed the crime for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
All further undesignated section references are to the Penal Code.
Following a jury trial, appellant was convicted on all counts; the jury found the killing to be first degree murder and found all the enhancement allegations true. The jury acquitted codefendant Torres on all charges.
The trial court sentenced appellant to a prison term of 50 years to life, including 25 years to life for the murder and a consecutive term of 25 years to life for his firearm use in the murder. Sentences for the other crimes and enhancements were made concurrent or stayed.
FACTUAL BACKGROUND
This case arises out of an incident during which an assailant fired from a van into a car driven by Max Anthony Cruz-Garcia (Cruz), in the early morning hours of January 11, 2004. Joshua Sterio and Angel Suazo-Garcia (Suazo) were passengers in the car driven by Cruz. The prosecution alleged that appellant fired the shots from the van, which was driven by Torres. The defense suggested the shots were fired by Miguel Vargas, who was the front seat passenger in the van.
The Eyewitness Testimony
Appellant is a member of a Sureño-affiliated gang called Richmond Sur Trece (RST). His nickname is “Chino.” Torres is a member of a Sureño-affiliated gang called Mexican Lokotes (ML). Vargas is a member of a Sureño-affiliated gang called Easter Hill Locos (EHL). On the evening of January 10, 2004, appellant, Torres, Vargas, and other individuals associated with Sureño-affiliated gangs attended a party at the Richmond apartment of Lori Chavez. People at the party, including appellant, drank and smoked methamphetamine.
A number of people at the party decided to go to the house of a friend in Concord; some rode in Torres’s red van, others in a blue Lexus. The six occupants of the van were Torres, appellant, appellant’s two brothers, Vargas, and Chavez. Torres drove. Vargas was in the front passenger seat. Appellant and his two brothers sat in the rear bench seat, with appellant in the middle or next to the sliding door. Chavez was on the floor in the trunk area. The van followed the blue Lexus.
Cruz was victim Suazo’s cousin. Cruz owned a silver Lexus. On the night of the shooting, Cruz was driving his car, Suazo was in the front passenger seat, and victim Sterio was seated behind Suazo. The three bought tacos at a fast food restaurant and started to go home. The blue Lexus came alongside the silver Lexus and the two cars raced. Before the race, one of the passengers in the blue Lexus thought that the people in the other car wanted to “start a fight”; he “asked them if they [were] banging” and flashed a gang sign. The people in the silver Lexus said they just wanted to race. The two cars raced, going over 80 miles an hour and passing through two stop lights. The silver Lexus won and the blue Lexus caught up to it at a red stop light. The people in the blue Lexus said goodbye and made a U-turn as the light turned green. The silver Lexus continued straight.
Vargas, who was in the front seat of the van, testified that he and the others in the van were “tripping out” because the activity of the two racing cars “wasn’t normal” and it seemed like they were “going to crash each other.” Vargas said to the others in the van, “It might be Norteños.” The racing cars drove off faster than the van and left it far behind.
Chavez testified that, at first, the people in the van were laughing about the race. Then Vargas and the people in the back seat, including appellant, said the people in the silver Lexus were Norteños. Appellant and the others told Torres to speed up to catch up to the silver Lexus.
The van came alongside the silver Lexus on the right. Chavez testified that appellant opened the van’s sliding door, stood up, and hung out of the door. Chavez heard two or three gunshots and appellant reentered the van and slammed the sliding door shut. Appellant had a gun in his hands. Chavez never saw Vargas go out the front passenger window.
Vargas testified the van was passing the silver Lexus on the right when the shooting started. The blue Lexus had turned off by that point. Vargas heard the sliding door open and then heard shots being fired from behind him. Vargas ducked, turned, and saw appellant “hanging out” the sliding door. Appellant was standing in the open doorway, holding onto the inside of the sliding door with his left hand. His right hand seemed to be outside over the van. Vargas heard five or six shots. Subsequently, he saw appellant putting away a black revolver.
Vargas testified that the blue Lexus never turned off. The factual dispute is not material.
Suazo testified that, after the blue Lexus left, he heard a “bang” and ducked. As he ducked, he looked out the front passenger window and saw sparks coming from a van that was passing on the right. Glare from the van’s windows prevented him from seeing inside. Suazo saw the upper body of a person on top of the van, but he didn’t see a face; he was concentrating on the sparks. The person he saw was the passenger in the front seat of the van.
Cruz was shot and the silver Lexus crashed. Cruz died from his injury.
There was additional eyewitness testimony at trial regarding statements made at a party in Concord after the shooting. We do not summarize that testimony because it is not material to our decision in this case.
The Police Investigation and Forensic Evidence
On January 12, 2004, the police found the van involved in the shooting outside Torres’s home in Rodeo. When Torres came outside and approached the van, the police arrested him. Appellant was arrested two days later in Berkeley.
On January 15, 2004, Chavez went to talk to the police after members of Torres’s gang and Torres’s fiancée came to Chavez’s home and threatened to harm her if she did not tell the police appellant was the only one responsible for the killing. Chavez told the police appellant did the shooting and Torres did not know it was going to happen. Chavez testified that was the truth. She had no reason to frame appellant; at the time of the shooting she was mostly “hanging out” with RST members. Because of her cooperation with the police, Chavez was assaulted five times by RST members, who told her not to say anything.
The police also interviewed Vargas. In his initial interview, he was unwilling to say anything about the shooting. The next day he called and said appellant was the shooter.
The police found a baseball cap at the scene of the shooting. DNA found on the inside sweatband came from at least three persons: a major contributor and at least two minor contributors. Appellant’s DNA matched the DNA from the major contributor.
Torres’s van had a sliding door on the right side, adjacent to the rear seat. On the front right side of the roof, there was an indentation about two and one-quarter inches long. It did not appear weathered or rusted. Copper was found in particles scraped from the indentation; the bullets that entered the silver Lexus each had a copper coat, or “jacket.” An expert in bullet strikes and trajectories testified that the indentation appeared to be formed by a bullet striking the roof. The expert, as well as a separate forensic specialist who examined the van, testified that the bullet that made the strike mark did so by traveling from the rear of the van toward the front.
The Defense Case
Jennifer Hope was the only witness for appellant. She was driving in Concord at around 2:00 a.m. on January 11, 2004, when she saw cars racing behind her. She allowed three vehicles to go ahead of her: a red or maroon van, a silver Lexus, and a blue Lexus. The blue Lexus turned off, and the van and the silver Lexus proceeded. Hope was directly behind the van when a man climbed out of the van’s right passenger window. The man fired three shots across the top of the van toward the silver Lexus. On direct exam Hope was asked, “Could you see the entire passenger or right-hand side of the van from where you were?” She answered, “Yes.” On cross-examination, she testified that she did not see the side of the van.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion with Respect to the Forensic Specialist’s Testimony Regarding the Bullet Trajectory
Appellant contends the trial court erred in permitting a police forensic specialist to testify regarding the trajectory of the bullet that allegedly left an indentation in the van’s roof. Over a “lack of foundation” objection by defense counsel, the trial court permitted Sergio Solis, a forensic specialist for the Concord Police Department, to give his opinion regarding the angle of the bullet strike that created the indentation. Solis testified that, based on an examination he did with a trajectory rod, the bullet traveled from an area near the sliding door before striking the roof. The prosecutor then asked Solis whether the shooter would have been able to shoot the bullet on that path if he had been “leaning out of the passenger-side door.” The court overruled defense counsel’s objections of “lack of foundation” and “speculation, ” and Solis opined that a shooter leaning out the front passenger-side door could only have shot the bullet on the path if the shooter were left-handed. Because Vargas had testified he was right-handed, the testimony supported the prosecutor’s theory that Vargas, sitting in the front passenger seat, was not the shooter. Again over the defense counsel’s objections of lack of foundation and speculation, the court permitted Solis to opine that the bullet path “was most likely from a right-handed shooter” hanging out the sliding door.
Appellant contends “Solis should not have been allowed to testify as an expert on trajectory or whether the shooter was right or left-handed.” However, defense counsel never objected to Solis’s testimony on the ground that the prosecutor’s questions called for an expert opinion that Solis was unqualified to provide. Evidence Code section 353 provides that a verdict “shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion....” “One of the reasons courts give for precluding review of a newly advanced objection on appeal is that the prosecution might have been able to offer additional evidence on the question if it had been faced with a proper objection. [Citations.]” (People v. Smith (1986) 180 Cal.App.3d 72, 80; see also People v. Chaney (2007) 148 Cal.App.4th 772, 779 [the purpose of Evid. Code, § 353 “is to provide the trial court and any moving party the opportunity to meet and cure any defect to which an objection has been made”].)
In the present case, defense counsel’s objections that there was no foundation for Solis’s testimony and that the testimony was speculative did not constitute a “clear and specific” objection to Solis’s qualifications to present the proffered testimony. Thus, appellant has forfeited that claim. (People v. Roberts (1992) 2 Cal.4th 271, 298 [claim on appeal forfeited where defendant objected on the basis of lack of foundation but “never sought to challenge the witnesses’ qualifications as experts”]; see also People v. Rodriquez (1969) 274 Cal.App.2d 770, 776 [while Evid. Code, §§ 720, subd. (a) and 802 “provide that the person testifying as an expert must be qualified by special knowledge, skill and experience, these foundational requirements need not be established in the absence of a specific objection or unless the court, in its discretion, requires it”].)
Directly on point is the California Supreme Court’s decision in People v. Bolin (1998) 18 Cal.4th 297 (Bolin). There, a criminalist testified regarding the likely positions of the victims’ bodies at the time they were shot based on blood spatters and drips depicted in crime scene photographs. (Id. at p. 321.) On appeal, the defendant contended the evidence was inadmissible because the criminalist was “not qualified to render an expert opinion (Evid. Code, § 720) and because he did not personally investigate the crime scene.” (Bolin, at p. 321.) Citing Evidence Code section 353, the court deemed the issue waived because the defendant failed to make those objections at trial. (Bolin, at p. 321; see also People v. Farnam (2002) 28 Cal.4th 107, 162 [defendant failed to “challenge [the criminalist’s] qualifications to provide expert opinion on blood spatters”].)
Additionally, since appellant has not presented any reasoned argument that it was improper to admit Solis’s testimony on the grounds of lack of foundation and speculation, any such argument has been forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Consequently, appellant has not shown the trial court erred in admitting Solis’s testimony regarding the trajectory of the bullet.
The prosecutor subsequently presented expert testimony regarding bullet trajectories from witness John Nelson. Nelson concluded the indentation on the roof of the van was made by a bullet traveling from back to front, which was consistent with the path plotted by Solis.
II. Appellant Has Not Shown There Was any Prejudicial Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct by “implicitly [telling] the jury that appellant was guilty because [appellant] did not undertake investigation which supposedly could have shown that [appellant] was innocent.” Appellant cites to Griffin v. California (1965) 380 U.S. 609, 615 (Griffin), in which the court held that the prosecutor’s commentary on the failure of the defendant to testify violated the self-incrimination clause of the Fifth Amendment.
At the outset, we note that the citation to Griffin is inapposite, because none of the prosecutor’s statements at issue commented on appellant’s failure to testify. Appellant refers to several incidents at trial. First, the defense moved unsuccessfully for a mistrial after the court sustained defense counsel’s objection to a question regarding the defense’s failure to have Vargas’s fingerprints compared to the fingerprints found on the van. Second, over defense counsel’s objection, the prosecutor adduced evidence that no one requested further comparison and analysis of the DNA obtained from the baseball hat. Third, with no objection from the defense, the prosecutor commented in closing argument on the defense’s failure to develop the fingerprint and DNA evidence to support the defense’s theory that Vargas was the shooter.
The prosecutor’s questions and comments did not implicate defendant’s privilege against self-incrimination because they included no commentary on defendant’s failure to testify. (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford) [the prosecutor’s comments “cannot fairly be interpreted as referring to defendant’s failure to testify”].) Appellant’s actual complaint is that the prosecutor’s questions and comments suggested that the defense had a burden to prove the defendant not guilty. (See id. at p. 1340.) The prosecutor’s comments in the present case were permissible. Bradford is instructive. There, the prosecutor pointed out to the jury in closing argument that “the defense did not call an expert witness to testify contrary to the conclusions reached by the coroner with regard to the time frame of [the victim’s] death, although [the] defendant ‘certainly is free to call his own witness to testify to those facts.’ ” (Id. at p. 1339.) Rejecting a claim that “the prosecutor’s comments impermissibly shift[ed] the burden of proof, ” Bradford pointed out that “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (Id. at p. 1340.)
The questions and comments at issue in the present case are analogous to those found permissible in Bradford. Although the prosecutor pointed out that the defense had presented no fingerprint or DNA evidence implicating Vargas, the prosecutor did not suggest appellant bore the burden of producing evidence or proving his innocence. (See People v. Cook (2006) 39 Cal.4th 566, 607 (Cook) [“[T]he prosecutor did not ask whether the defense had a duty to do independent testing, merely whether the defense had an opportunity to do so.”].)
Moreover, “ ‘[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553-554.) The trial court instructed the jury in this case that the prosecution had the burden of proving the defendants guilty beyond a reasonable doubt, that the jury was required to acquit “[u]nless the evidence proves the defendants guilty beyond a reasonable doubt, ” that “[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant, ” and that the jury was required to follow the court’s instructions in the event of any apparent conflict with the attorneys’ comments on the law. (See People v. Pinholster (1992) 1 Cal.4th 865, 919 [“We presume absent contrary indications that the jury was able to follow the court’s instructions.”].)
Also, when the issue arose at trial in the context of the question regarding whether defense counsel requested fingerprint testing, the court sustained defense counsel’s objection and stated, “please keep in mind the defense bears no burden in this case.” (See Cook, supra, 39 Cal.4th at p. 608 [approving of similar admonishment by trial court].) Finally, defense counsel repeatedly emphasized the prosecution’s burden of proof during his closing argument stating, for example, “I don’t have to explain away anything, he has to explain everything. Everything beyond a reasonable doubt.”
In light of the absence of any statement by the prosecutor shifting the burden of proof to appellant, the clarity of the trial court’s instructions that the prosecution bore the burden, and the emphasis on that point by defense counsel, there is no reasonable likelihood the jury misapplied the law. Appellant has not shown there was any prejudicial prosecutorial misconduct at trial.
Similarly, appellant has not shown the trial court erred in denying his motion for a mistrial after the prosecutor’s question about fingerprint testing. Even assuming the prosecutor’s question was improper, any prejudice was cured by the trial court’s immediate admonition and subsequent instructions. (See Cook, supra, 39 Cal.4th at p. 608.)
III. The Trial Court Properly Denied Appellant’s Motion for New Trial
Appellant moved for new trial based on two claims of juror misconduct: (1) one of the jurors assented to the verdict due to coercion by other jurors, and (2) one of the jurors read information about the case on the internet. The trial court did not err in denying the motion.
Before granting a motion for new trial, “the trial court must make its independent determination, ... [citation], both that error occurred, and that the error prevented the complaining party from receiving a fair trial. [Citation.]” (People v. Ault (2004) 33 Cal.4th 1250, 1262.) Whether juror misconduct resulted in prejudice warranting a new trial is a mixed question of law and fact that the appellate court independently reviews. (Id. at pp. 1264-1265; People v. Danks (2004) 32 Cal.4th 269, 303 (Danks).) “We first determine whether there was any juror misconduct. Only if we answer that question affirmatively do we consider whether the conduct was prejudicial.” (People v. Collins (2010) 49 Cal.4th 175, 242.) If the reviewing court finds juror misconduct has occurred, a rebuttable presumption of prejudice arises. (Danks, at p. 307.) In determining whether the presumption of prejudice has been rebutted, the reviewing court undertakes an “ ‘... examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.’ [Citations.]” (In re Carpenter (1995) 9 Cal.4th 634, 657 (Carpenter).) Juror misconduct warrants reversal only if it creates a substantial likelihood that the defendant suffered harm from the misconduct. (Danks, at p. 303; Carpenter, at p. 654.)
A. Claim of Coercion of a Juror
In support of its motion for new trial, the defense submitted a declaration from Juror J.W., which stated: “I voted guilty even though I believed that there was reasonable doubt that [appellant] was not [sic] the shooter. I did so because of pressure and intimidation from some of the other jurors....” Juror J.W. also averred, “In the end, I did not vote my conscience or exercise my independent judgment.” As appellant implicitly acknowledges, those statements were inadmissible to impeach the verdict because they “concern[] the mental processes by which [the verdict] was determined.” (Evid. Code, § 1150, subd. (a); People v. Hutchinson (1969) 71 Cal.2d 342, 349-350 [by “its limitation of impeachment evidence to proof of overt conduct, conditions, events, and statements, ” Evid. Code, § 1150 “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”].)
The proper focus of inquiry is instead the alleged overt acts detailed in Juror J.W.’s declaration. (People v. Hutchinson, supra, 71 Cal.2d at pp. 349-350.) She averred, on the second day of deliberations, she continued to express doubts about appellant’s guilt and some of the other jurors accused her of “ ‘not looking at the evidence.’ ” The foreperson and two other jurors threatened to “ ‘kick me off the jury’ ” and write a letter to the judge stating that Juror J.W. was “holding out and ‘not looking at the evidence.’ ” Juror J.W. told the other jurors that she wanted to communicate with the judge herself, but the others “kept putting me off” and she “never had the chance to speak with the judge.” Later that day, Juror J.W. “broke down emotionally” following a “heated discussion” and “went to the restroom to cry.” At the end of the day, the other jurors told Juror J.W. to “ ‘go home and think about it’ and to ‘pray about it.’ ”
Juror J.W. also averred, “The other jurors made many comments that my position was delaying the process and causing problems in their personal or work life. [Juror D., ] the foreperson, flatly stated that he had tickets for Disneyworld and he fully intended to leave on Friday: ‘I am going!’ he insisted. [Juror L.], who was self-employed, said that she had to get back to work. [Juror S.] said that she wanted to go to Reno.” Upon arrival in the jury room on the third day of deliberations, Juror J.W. told the other jurors that she would vote to convict appellant of second degree murder. The others told her “that this could not be done.” When the jury took a poll at about 9:00 a.m., Juror J.W. asked, “ ‘Do you want me to say he’s guilty when I have doubts?’ ” One of the other jurors “quickly replied, ‘Yes!’ ” Juror J.W. then voted guilty.
In denying the motion for new trial as based on the claim of coercion, the trial court reasoned: “if jurors here did in fact voice the possibility of seeking [Juror J.W.’s] removal because in their view she was not fairly evaluating the evidence, their expressions of concern could not be deemed to have constituted misconduct. [¶] The [c]ourt is mindful, however, that circumstances could arise in which expressions of concern could fall from the permissible to the impermissible range. Such circumstances could encompass threats of bodily harm or belittling through the use of offensive language not tolerated in civil discourse. But none of that occurred here. The expressions of concern directed to [Juror J.W.] were not unduly prolonged. Nor did those expressions impugn her character by use of any distasteful references. The [c]ourt thus concludes that the concerned jurors, even assuming that they expressed their views in the way stated by [Juror J.W.], did not engage in prejudicial misconduct.”
The trial court did not err. In People v. Keenan (1988) 46 Cal.3d 478, 539 (Keenan), the California Supreme Court upheld the denial of a new trial motion predicated on an allegation that a juror committed misconduct by his “diatribe” against another juror. The defendant in Keenan alleged that a juror named Walker was verbally abusive to another juror, who was the only juror holding out against the death penalty. (Id. at p. 540.) Walker repeatedly shouted at the holdout juror and at one point threatened to kill her “[i]f you make this all for nothing.” (Ibid.) The Keenan court held that as a matter of law there was no prejudicial misconduct “[e]ven if the described ‘threat’ occurred.” (Id. at p. 541.) The court reasoned: “The outburst described in [the] declarations was particularly harsh and inappropriate, but as the trial court suggested, no reasonable juror could have taken it literally. Manifestly, the alleged ‘death threat’ was but an expression of frustration, temper, and strong conviction against the contrary views of another panelist. [¶] ‘Jurors may be expected to disagree during deliberations, even at times in heated fashion.’ Thus, ‘[t]o permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression.’ ” (Keenan, at pp. 541-542, quoting People v. Orchard (1971) 17 Cal.App.3d 568, 574 (Orchard); see also People v. Johnson (1992) 3 Cal.4th 1183, 1255 [“jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means”].)
In a footnote, Keenan summarized the facts of the Orchard decision, in which the verdict was upheld despite allegations that, after a juror sent the foreman a note expressing her belief in the defendant’s innocence, the foreman “tor[e] the note up, stood and angrily chastised her for 10 to 15 minutes before the other jurors for not keeping an open mind, producing in her feelings of embarrassment, humiliation and a desire to leave as soon as possible and causing her to vote appellant guilty.” (Orchard, supra, 17 Cal.App.3d at p. 572, fn. omitted; see also Keenan, supra, 46 Cal.3d at pp. 541-542, fn. 34.) The Keenan court also summarized the facts of the one decision it had uncovered that invalidated a verdict on the basis of coercion; in that case, the holdout juror was subjected to “an exhausting and unending torrent of abuse” from all 11 other jurors. (Keenan, at pp. 541-542, fn. 34, citing Wharton v. People (1939) 104 Colo. 260.)
Even accepting as true all of the averments in Juror J.W.’s declaration, appellant’s showing of coercion is no more substantial than those in Keenan and Orchard. Accordingly, appellant has failed to show the type of coercive acts that can justify grant of a motion for new trial.
B. Claim That a Juror Accessed Outside Information
Juror J.W. averred in her declaration supporting the motion for new trial: “One of [the other jurors, Juror S.], said to me and to another juror [, Juror B., ] that [Juror S.] and her husband had looked up the case ‘on the computer’ where all the proceedings in the court room were available ‘word for word.’ [Juror S.] offered to tell us how to access this information. I don’t know if [Juror S.] was referring to newspaper accounts of the case. I do recall her saying that ‘you can find out everything that’s going on here in the court room.’ She mentioned this at least twice, once at lunch with [Juror B.] and another time during a break. I did not look up any information on the computer.”
In its written decision, the trial court “question[ed] whether a juror’s reference to a possible means of accessing an outside source of information, without more, constitutes misconduct, ” but the court “assume[d] that such an effort was made and that it constituted misconduct.” The court proceeded to find the presumed misconduct nonprejudicial, reasoning: “[I]t is questionable whether any network that can provide a ‘word for word’ summary is available. But even so, any such information gathered from the network could not have influenced [Juror J.W.] because she ‘did not look up any information on the computer.’ Moreover, with respect to the other juror, the information, if accessed at all, could have amounted to no more than a summary of what had been heard already.” The court concluded that “any presumption of prejudice is rebutted through this examination of the entire record which reveals that ‘there is no substantial likelihood that the complaining party suffered actual bias.’ [Citation.]”
The trial court did not err. It was misconduct for Juror S. to look up the case on the internet and the presumption of prejudice is applicable. (Carpenter, supra, 9 Cal.4th at p. 647 [“[i]t is improper for a juror to receive information outside of court about the pending case”].) However, in the absence of any indication that Juror S. received information beyond the scope of the information introduced into evidence at trial, there is no reasonable probability appellant suffered harm from the misconduct. (Id. at p. 657.)
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.