Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F05789
ROBIE, J.
A jury found defendants Marco Avalos and Ezequiel Romo guilty of assault with a deadly weapon by a person confined in state prison and found true the allegation that defendant Avalos personally used a deadly weapon. The trial court sentenced defendant Avalos to 26 years to life and defendant Romo to eight years. The trial court sentenced defendants to these terms based on prior strikes.
Defendants appeal, arguing the trial court erroneously denied their motion for a new trial because the grounds for their motion, juror misconduct, was incorrectly found to be not prejudicial by the trial court. Defendants also argue the allegations of their prior convictions were never found true, and, as a result, those sentence enhancements should be stricken. The People argue the juror misconduct was not prejudicial, but they concede the trial court did not find the prior conviction allegations true but request we remand for a bench trial on those allegations. We agree with the People.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants were both charged with assault with a deadly weapon while confined in a state prison, and defendant Avalos’s charge was enhanced by an allegation of the personal use of a deadly weapon. The People further alleged defendant Avalos had three prior strikes and defendant Romo had one prior strike. Both defendants pled not guilty, stipulated they were prison inmates at the time of the incident, and denied all enhancing allegations. Both defendants consented to a bench trial on the prior strike allegations.
During the jury trial, the People called several correctional officers who testified they saw defendants attacking another inmate. During closing argument, defendants focused the jury’s attention on their argument that the identification of defendants by the correctional officers was not proved beyond a reasonable doubt. A jury found both defendants guilty of assault with a deadly weapon while confined in a state prison and found defendant Avalos to have personally used a deadly weapon.
After conviction and before sentencing, defendants produced declarations by five jurors attesting they had seen defendant Romo walking the halls with a small boy and that one juror had remarked that it was terrible for defendant Romo to use a child as a means to get sympathy. The declarations did not indicate when this incident occurred. Based on these declarations, defendants moved for a new trial on the grounds of juror misconduct. The trial court denied the motion for a new trial because it found the juror misconduct not to be prejudicial.
The trial court incorrectly believed it had already found the prior strikes true and sentenced defendant Avalos to 26 years to life and defendant Romo to eight years based on that false belief.
DISCUSSION
I
Juror Misconduct
Defendants argue prejudicial juror misconduct occurred and the trial court erroneously denied their motions for a new trial. In reviewing a motion for new trial based on a claim of juror misconduct, “[w]e accept the trial court’s credibility determinations and findings on questions of historical facts.” (People v. Nesler (1997) 16 Cal.4th 561, 582.) We determine independently if prejudice arose from the misconduct (id. at pp. 582-583), but if misconduct is established, it is presumed prejudicial (id. at p. 578). That presumption can be rebutted if there is no substantial likelihood the misconduct created juror bias. (Nesler, at p. 578.) There is no substantial likelihood of juror bias if the following two conditions are met: (1) the misconduct is not inherently prejudicial; and (2) after reviewing the totality of the circumstances, there is no substantial likelihood any juror was actually biased. (Id. at pp. 578-579.) Only if the misconduct is prejudicial, i.e., there is a substantial likelihood of actual bias, will the verdict be set aside and a motion for a new trial granted. (Id. at p. 579.)
Based on the trial court’s findings, juror misconduct did occur. The trial court found, based on five juror declarations, that at least six jurors saw defendant Romo walking the hallway of the court with a little boy and that one of those jurors said “‘it was terrible to use a child as a means to get sympathy.’” The trial court rightly considered this incident misconduct because the introduction of information regarding defendant Romo’s choice of companion in walking the court hallways and an individual juror’s interpretation of that situation was evidence outside the record. (See In re Carpenter (1995) 9 Cal.4th 634, 647-648.)
In an analysis of this misconduct vis-à-vis each defendant, we conclude it was not prejudicial because it is not substantially likely to have created actual juror bias. Therefore, we conclude the trial court correctly denied the motion for a new trial.
A
The Juror Misconduct Was Not Prejudicial To Defendant Avalos
Defendant Avalos contends the juror misconduct was prejudicial to him because the presumption of prejudice was not rebutted.
We disagree. The incident was not inherently prejudicial to defendant Avalos because the incident did not concern him. Rather, jurors saw, and one commented on, defendant Romo walking with a small boy. This incident had no inherent relationship to defendant Avalos.
Further, the totality of the circumstances does not suggest a substantial likelihood that any juror was actually biased against defendant Avalos. Defendant Avalos suggests any bias generated toward defendant Romo as a result of the misconduct would spill over to him because both defendants made similar arguments to the jury regarding misidentification. Therefore, defendant Avalos contends, if a juror were biased enough against defendant Romo to overlook the claim of misidentification, he or she would also automatically dismiss the claim of misidentification concerns of defendant Avalos as well. Even assuming this incident biased a juror against defendant Romo, the logical leap to assume the prejudice transferred to defendant Avalos is attenuated at best and does not support a substantial likelihood that any juror was actually biased against defendant Avalos.
Furthermore, the identification of defendant Avalos as one of the assailants is nearly overwhelming based on testimony by multiple corrections officers, one of whom knew Avalos by sight and name prior to the incident. And where the evidence is overwhelming, it makes the likelihood of actual bias more remote. (See In re Carpenter, supra, 9 Cal.4th at p. 654.)
Additionally, there is no evidence the extraneous information or comment was used or considered during deliberations. (Cf. People v. Nesler, supra,16 Cal.4th at pp. 583-584 [where the court was concerned mainly with the possible use of any extraneous information during deliberations].) And “[w]e will not presume greater misconduct than the evidence shows.” (In re Carpenter, supra,9 Cal.4th at p. 657.) As a result, this misconduct would be less likely to actually bias a juror during deliberations because we have no evidence it was discussed during deliberations.
B
The Juror Misconduct Was Not Prejudicial To Defendant Romo
Defendant Romo contends the juror misconduct prejudiced the jury against him both because the misconduct was inherently prejudicial and because the totality of the circumstances suggest a substantial likelihood a juror was actually biased against him as a result of the misconduct.
We disagree. That multiple jurors saw defendant Romo with a little boy and that one juror commented negatively on that sight is not inherently prejudicial. Nothing in the misconduct inherently relates to defendant Romo’s guilt or to his contention he was misidentified. Furthermore, it is hardly unusual that a defendant, especially one who is known to the jury to have been a prison inmate, as was defendant Romo, would try to garner sympathy from the jury, regardless of his innocence or guilt. Just because a juror believed defendant Romo was trying to garner sympathy does not necessitate any thoughts about defendant Romo’s guilt, as a juror would likely assume even an innocent defendant would try to arouse a jury’s sympathy.
The totality of the circumstances suggests there was no substantial likelihood a juror was actually biased against defendant Romo. As in In re Carpenter, supra, 9 Cal.4th at page 654, the evidence here is overwhelming based on the testimony from multiple correctional officers identifying defendant Romo as one of the assailants. This overwhelming evidence reduces the possibility that any potential bias had any consequence, much less prejudicial impact.
Defendant argues there was a substantial likelihood of actual bias because the jurors considered this extraneous evidence during deliberations. However, there is no evidence this extraneous information was discussed during deliberations, and, again, “[w]e will not presume greater misconduct than the evidence shows.” (In re Carpenter, supra,9 Cal.4th at p. 657.)
Accordingly, the witnessing of and commenting on defendant Romo’s promenade with a little boy was juror misconduct, but the presumption this was prejudicial has been sufficiently rebutted.
II
The Trial Court Erred By Failing To Try
The Defendants’ Prior Conviction Allegations
Defendants contend their sentences were calculated in error because the trial court did not find true the prior convictions, relying, instead, on the probation report. Therefore, defendants reason the sentences imposed based on the prior convictions should be stricken. The People concede the trial court erred and did not conduct a trial on the prior convictions. The People argue the correct recourse is to remand for a bench trial on the prior conviction allegations. We agree with the People.
Penal Code section 1158 states, “[w]henever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction.” (See Pen. Code, § 1025, subds. (b) & (c).) In the event a trial court has failed to make such a finding or has done so incorrectly, the case can be remanded to the trial court for a proper factual finding regarding the prior convictions. (See People v. Walker (2001) 89 Cal.App.4th 380, 386-387.)
Here, the trial court did not make a factual finding on the prior conviction allegation after defendants denied those allegations and waived their rights to a jury trial on that issue. As a result, defendants did not receive the trial on the allegations of their prior convictions as required by Penal Code sections 1158 and 1025 subdivisions (b) and (c). Therefore, we will remand the case to the trial court to make the proper factual findings. (See People v. Walker, supra,89 Cal.App.4th at pp. 386-387.) Because defendants already waived their right to trial by jury on this matter, we will remand for a bench trial.
DISPOSITION
Defendants’ convictions are affirmed, but their sentences are vacated, and the cases are remanded for a bench trial on the prior conviction allegations only and for resentencing.
We concur: NICHOLSON, Acting P. J., BUTZ, J.