Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino No. FCH700287, Raymond L. Haight III, Judge.
OPINION
AARON, J.
I
INTRODUCTION
Defendants Sepheren Ferdinand Scorza, Tiawan Ferrizel Merriweather, and Tylin Ferrizel Merriweather were convicted of various offenses related to a bank robbery that occurred in July 2007. Scorza was convicted of three counts of second degree robbery, attempted second degree robbery, assault, second degree commercial burglary, conspiracy, and dissuading a witness. Tylin and Tiawan were convicted of the same charges, except that Tylin was not convicted of assault, and Tiawan was not convicted of assault or dissuading a witness.
We will refer to the Merriweather brothers by their first names in order to avoid confusion.
On appeal, all three defendants argue that the trial court erred in admitting in evidence a postarrest incriminating statement that Scorza made to a detective. The defendants contend that Scorza gave the statement as the result of a promise of leniency by the detective, and thus the statement was involuntary. Tylin and Tiawan also argue that the trial court should have redacted a portion of the statement in which Scorza uses the word "we" a number of times, because, they maintain, that portion indirectly identified them as accomplices in violation of the Aranda-Bruton rule.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
The defendants also argue that the trial court should have granted a mistrial based on juror misconduct involving the fact that the jurors either read or heard from another juror about news articles related to the case. Finally, Scorza and Tylin contend that the trial court failed to exercise its discretion to treat their convictions for dissuading a witness as misdemeanors, rather than as felonies, at sentencing.
The offense of dissuading a witness is a so-called "wobbler" offense, such that the trial court has discretion at sentencing to decide whether to treat the offense as a felony or a misdemeanor.
We conclude that the trial court did not err in admitting Scorza's postarrest statement because the statement was not involuntary. Nor did the court err in failing to redact, on Aranda-Bruton grounds, the portion of Scorza's statement in which Scorza used the word "we, " since Scorza did not directly or indirectly implicate Tylin or Tiawan in the portion of the statement at issue. It was clear from virtually all of the evidence in the case that more than one individual participated in the bank robbery, and Scorza's use of the plural pronoun "we" did not implicate anyone in particular as an accomplice in the robbery.
With respect to the juror misconduct issue, we conclude that there was juror misconduct in this case. One juror inadvertently read an article published in the local newspaper during the time the jury was deliberating, but she did not share with the other jurors any of the content of the article. Another juror acknowledged having read an article about the case prior to being selected as a juror, and used information that she gleaned from that article to answer a question that another juror posed regarding why a fourth individual, whom the evidence tended to show was involved in the offenses, was not a defendant in this case. Several other jurors understood the juror in question to have indicated that, according to the article, the fourth man had pled guilty to offenses related to the bank robbery, and at least one juror believed the juror also mentioned that the fourth man was serving a 13-year sentence.
Although a presumption of prejudice arises when juror misconduct is found to have occurred, we conclude that the presumption of prejudice was overcome in this case.
Finally, we conclude that Scorza and Tylin forfeited their argument that the trial court should have exercised its discretion to determine whether their convictions for dissuading a witness should have been treated as misdemeanors, rather than felonies, at sentencing. We therefore affirm the judgment of the trial court.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On July 3, 2007, Terry McAdams, Scorza, Tiawan, and Tylin robbed a branch office of Citibank located in Chino Hills. Scorza, Tiawan and Tylin entered the bank armed and yelled for everyone to "get down, get down... get on the ground." The men forced the bank employees to help them gather cash from the tellers' drawers and from the bank's vault. They took more than $100,000 in the robbery.
McAdams was the getaway driver. Police eventually pursued the getaway car in a high-speed chase. At the end of a freeway off-ramp, McAdams rear-ended a car that was blocking his path. After the collision, all four men got out of the car and ran. They left more than $40,000 in cash inside the car and on the ground approximately 20 feet from the passenger side of the vehicle. Several California Department of Transportation (Caltrans) workers observed the collision and watched as the men ran away.
Police arrested McAdams and Tiawan approximately half a mile from where they had abandoned the car.
Not far from the scene of the accident, Duncan MacDonald was returning to his home when he noticed a police helicopter circling above him. He drove by a parking lot near his house, where he saw approximately 25 police officers and two young men in handcuffs. When MacDonald entered his house, he found Scorza and Tylin inside. MacDonald repeatedly asked the men who they were and requested that they leave. MacDonald was going to try to use his cell phone to call police, but "it became clear by [the men's] verbal action and their—that they were not comfortable, they were not going to allow me to use my cell phone." Scorza and Tylin told MacDonald that they needed a place to hide and remained in MacDonald's home for approximately 10 minutes.
MacDonald had been asking the men "where they were from" throughout the ordeal. The men eventually told MacDonald that they were from Compton. MacDonald offered to drive them back to Compton, and they agreed. MacDonald insisted that both men sit in the back seat of the car, which they did. MacDonald drove until he saw a police officer standing on a corner. In order to get the officer's attention, MacDonald drove up onto the sidewalk and "came to a screeching halt." MacDonald told the police officer to arrest the two men. That officer, together with other officers who came to assist, arrested Scorza and Tylin. A backpack that Scorza and Tylin had in their possession contained a large amount of cash.
A number of Caltrans employees who had been working close to the area where the getaway car was abandoned identified McAdams, Scorza, Tylin and Tiawan as the men who had jumped out of the car.
After being arrested and undergoing initial police interviews, Scorza and Tylin were placed in the back seat of a patrol car. McAdams and Tiawan were placed in the back seat of another patrol car. The men were left alone, and audio recording devices in the patrol cars recorded their conversations with each other.
The jury heard a recording of the conversation between Scorza and Tylin while they were sitting in the back of the patrol car. During their conversation, Scorza and Tylin discussed, among other things, how they could have escaped from the police during the freeway chase, that they had told the police that the gun that was used during the robbery was fake and disclaimed any knowledge of which person was carrying the gun, and the fact that, when they first walked into the bank, their faces were exposed to a camera. The pair also discussed how much money they thought they had been able to "get away with, " and what they would have used the money to buy if they had managed to make it home without being caught.
The jury also heard a recording of the conversation between McAdams and Tiawan as they sat in the back of a patrol car. McAdams and Tiawan discussed the fact that they had been planning to bury the money, and that it was "good" that the police had not found a gun on any of them. The men also discussed the fact that they thought they had lost the police when they exited the freeway.
The jury also heard a portion of a postarrest interview with Scorza conducted by Detective Daniel King. During that interview, Scorza admitted that he had participated in the bank robbery. Scorza described how he had gone into the vault with two bank employees and how they helped him put the money into the pillow case he was carrying. According to Scorza, he and his accomplices had an understanding that they would not hurt anyone in the bank. Scorza claimed that the gun the men had used was "a cap gun." He also said that he apologized to the bank employees who accompanied him to the vault.
The jury saw several surveillance photos from bank security cameras in which three men could be seen as they entered and robbed the bank. There were also photographic exhibits of shoe imprints taken from the bank that matched the shoes that the defendants were wearing when they were arrested.
Police recovered all of the money that was taken from the bank, from either in or around the car in which the defendants had been riding after the robbery, or on the defendants' persons. Bank employees were able to match the serial numbers on "bait money" that the robbers had taken with the money that police recovered.
Scorza called two witnesses who testified that prior to the robbery, Scorza had undergone treatment for tattoo removal. Tylin recalled Detective King to the witness stand and questioned him about his reasons for failing to include in his police report anything about the bank manager having used the word "magnum" to describe the firearm that she had seen.
Evidence of Scorza's tattoo apparently related to the prosecution's allegations that the defendants were involved in a criminal street gang.
B. Procedural background
1. Sepheren Scorza
The jury convicted Scorza of three counts of second degree robbery (Pen. Code, § 211; counts 1, 2, 3); attempted second degree robbery (§§ 211, 664; count 4); assault (§ 240; count 5); second degree commercial burglary (§ 459; count 6); conspiracy (§ 182, subd. (a)(1); count 7); and dissuading a witness (§ 136.1, subd. (b)(1); count 9). The jury also found true the allegation that Scorza took property valued at more than $50,000 (§ 12022.6, subd. (a)). Scorza admitted that he had two prison priors (§ 667.5, subd. (b)), a prior conviction for a serious or violent felony (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)-(d)).
Further statutory references are to the Penal Code unless otherwise indicated.
On May 12, 2009, the trial court sentenced Scorza to a total term of 20 years eight months in state prison. Scorza filed a timely notice of appeal.
2. Tylin Merriweather
The jury convicted Tylin of three counts of second degree robbery (§ 211; counts 1, 2, 3); attempted second degree robbery (§§ 211, 664; count 4); second degree commercial burglary (§ 459; count 6); conspiracy (§ 182, subd. (a)(1); count 7); and dissuading a witness (§ 136.1, subd. (b)(1); count 9). The jury found true the allegation that Tylin took property valued at more than $50,000 (§ 12022.6, subd. (a)).
On May 12, 2009, the trial court sentenced Tylin to a total term of seven years four months in state prison. Tylin filed a timely notice of appeal.
3. Tiawan Merriweather
The jury convicted Tiawan of three counts of second degree robbery (§ 211; counts 1, 2, 3); attempted second degree robbery (§§ 211, 664; count 4); second degree commercial burglary (§ 459; count 6); and conspiracy (§ 182, subd. (a)(1); count 7). The jury found true the allegation that Tiawan took property valued at more than $50,000 (§ 12022.6, subd. (a)).
On May 12, 2009, the trial court sentenced Tiawan to a total term of six years eight months in state prison. Tiawan filed a timely notice of appeal.
III
DISCUSSION
A. The trial court did not err in admitting in evidence Scorza's postarrest statement to Detective King
1. Additional background
Before trial, Scorza moved in limine to exclude any statements he made during his interview with Detective King, contending that the statements were the result of a promise of leniency and should therefore be considered involuntary. Scorza requested a hearing pursuant to Evidence Code section 402 to determine the admissibility of his statements. Tylin and Tiawan joined in the motion. The trial court held a hearing during which the court relied on King's testimony and on a transcript of Scorza's interview with King.
At the hearing, Detective King testified that during the interview, Scorza repeatedly asked King what type of sentence he was facing. King "told [Scorza] repeatedly I did not know what the sentences would be, I did not know how much time he was facing."
The transcript of Detective King's interview of Scorza reveals that King read Scorza his Miranda rights at the beginning of the interview, and that Scorza waived his rights and said, "I'll answer some questions." Fairly early in the interview, Scorza inquired, "Can I ask you what I'm facing?" King responded, "You're being charged with bank robbery." Scorza initially acted surprised and asked why he was being charged with bank robbery. He disclaimed any involvement in a bank robbery, and proceeded to tell King varying stories regarding what he had been doing that day.
Detective King encouraged Scorza to stop lying to him. King then told Scorza that they had video of Scorza and the other men walking into the bank, robbing the bank, and running away from the bank. After that, King asked Scorza's whose idea it had been to rob the bank and Scorza replied, "It wasn't mine." After a few more comments back and forth between the two, Scorza asked King, "How much time is this getting me? [¶]... [¶]... How much time is this getting ready to go with a bank robbery I'm being charged with?" The following colloquy then occurred:
"Det. King: I have no idea; I have no idea; it would probably depend on your prior history.
"Scorza: Due to my situation what would you say?
"Det. King: The only thing you got is that 459?
"Scorza: Yeah. But I have a strike.
"Det. King: You know I[, ] I[, ] I... don't wanna tell you something and it be wrong. Because I; I don't know what the; what the uh; what the sentences are. Tell me about the bank. Was it your idea?
"Scorza: No."
When asked which of the men had come up with the idea to rob the bank, Scorza denied that any of the men had planned to rob the bank. Detective King continued to ask Scorza about the robbery and again encouraged him to tell the truth. Scorza eventually asked, "If I plead, how much time does this carry in my situation? In my situation?" The pair then engaged in the following colloquy:
"Det. King: It could be 10 years, I don't know. It could be 5 years. You know the DA's gonna offer you something. Especially; especially if you['re] up front and honest.
"Det. King: But you know what? The DA's gonna be worse than me. Because you, you, you tell the DA one lie and the DA will take whatever offer away from you and try and throw the max at you. But you know what, the[] way I write my report;
"Scorza: May I ask what's the max?
"Det. King: I don't know what the max is.
"Scorza: What were you going to say?
"Det. King: I said the way I write my report, and the recommendations that I make to the District Attorney; that, that will go a[]long ways."
At some point after this exchange, Scorza admitted that he had been inside the bank. After making this admission, Scorza said, "Can I ask you something?" Detective King responded, "Sure. What you need[?]" Scorza said, "You gotta help me. If I tell you what you want to know. What can you do to help me? Not only just me; cause we are in a you know how stupid this is. Honestly." King responded, "Terry don't care; cause Terry told me he don't care if he gets fifty to life."
Scorza again asked Detective King what King could do to help Scorza. This time, King responded, "I; I can tell the District Attorney; I can tell your Parole officer that you were honest with me. You know your Parole officer is gonna take a lot of stock in what I say and; and how you interacted with me."
Scorza then made comments that suggested that he participated in the robbery. After making these statements, Scorza again asked, "What can you do to help?" Detective King said, "I can tell the Judge and the District Attorney that you were cooperative with me." Scorza asked, "But what's that mean? But that still gets me 10 to 15 years of my life I won't be able to (mumbles)." King stated, "The DA might give you less."
Scorza expressed concern that his mother would be hurt by his having to serve time, and then admitted to having participated in the bank robbery, saying that it "was a stupid mistake" and that he and his accomplices "[d]id not even hurt nobody." Scorza described the robbery and how he and his accomplices had taken the money in different bags. He then interrupted the confession to ask another time, "Are you gonna help me?" King said, "I'm gonna do everything I can to help you."
Scorza went on to explain that he and his accomplices had used a fake gun during the robbery, but said that he did not know what had happened to it. Scorza also described the attempted getaway. After making these incriminating statements, Scorza again asked Detective King what King could do to help him. King said, "Like I told you all's I can do is tell the District Attorney how cooperative you've been and that you were honest with me."
Finally, near the end of the interview, after Scorza had made a comment about "asking for a second chance, " Detective King said, "I'm gonna make sure; I'm gonna make sure the District Attorney understands that you were cooperative; you were honest with me, ok? And then if; if they can offer you something less than; than the rest. Because the other guys; depends on how cooperative they are. They won't get the same offer you get. And I can't make you a bunch of promises here. Ok?"
After considering Detective King's testimony and the transcript of the interview, the trial court ruled that Scorza's statements were voluntary and that Scorza had not been coerced to make the statements by improper promises of leniency. The court proceeded to address the extent to which the interview would have to be redacted under Aranda-Bruton. The prosecutor agreed that any statements Scorza made that specifically identified his codefendants should be excluded under Aranda-Bruton.
The prosecutor submitted a transcript that reflected the proposed redactions. Defense counsel objected to the proposed redactions and argued that the entire interview should be excluded. The trial court went through the transcript with the attorneys, line by line, and ruled on all objections that defense counsel raised. The court ultimately decided to admit in evidence a significantly redacted recording of Scorza's interview. The transcript of the redacted interview was approximately one and a half pages. The redacted recording was played for the jury, and the trial court provided the redacted transcript to the jury.
2. Voluntariness
The defendants assert that the trial court should not have allowed the People to introduce Scorza's confession because, even though Detective King did not use the words "I promise" or make any other specific promise of leniency to Scorza, King nevertheless persuaded Scorza that he would receive lenient treatment if he were to confess to his role in the bank robbery. According to the defendants, "[t]hroughout the interview, King alluded to possible leniency which induced Scorza to make additional statements."
"An involuntary confession may not be introduced into evidence at trial. [Citation.] The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, ' "[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne." ' [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.] ' "On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review." ' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).)
" 'Once a suspect has been properly advised of his [or her] rights, he [or she] may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.... Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession....' [Citation.]" (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
" 'It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.... Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, " the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if... the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible...." ' [Citations.]" (Holloway, supra, 33 Cal.4th at p. 115.)
We conclude that Scorza's admission that he participated in the bank robbery was not prompted by any express or implied promise of leniency. It is clear from the interview transcript that Detective King made no promises to Scorza. In fact, King specifically told Scorza that he could do nothing more than put in a good word for him with the district attorney and his parole officer. Scorza's responses to King's answers demonstrate that Scorza understood that King was not promising leniency in terms of Scorza's potential punishment. For example, Scorza responded to King's statement that King could "help" Scorza by "tell[ing] the Judge and the District Attorney that [Scorza had been] cooperative" by stating, "But what's that mean? But that still gets me 10 to 15 years of my life I won't be able to (mumbles)." Scorza's statement indicates that he understood that King was not offering him leniency.
The fact that Scorza continued to attempt to get Detective King to agree to "help" him in exchange for his agreement to answer King's questions about the robbery also demonstrates that Scorza did not understand King to be promising him leniency. Scorza was the one who repeatedly asked King what King could do to "help" him, and seemed frustrated with King's generic responses that failed to assure Scorza that he would receive more lenient treatment if he were to agree to discuss the robbery. It thus appears in this case that Scorza " 'was attempting to use the interview as much as the officer[]' " and that "[t]he interview in this case is better characterized as a 'dialogue or debate between suspect and police in which the police commented on the realities of [his] position and the courses of conduct open to [him]' [citation] than as a coercive interrogation." (Holloway, supra, 33 Cal.4th at p. 116.)
Detective King's suggestions that it would be better for Scorza if Scorza were to tell the truth were not promises of leniency. " 'No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.' [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 444.) "Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth. [Citations.]" (Ibid., citing, e.g., Carrington, supra, 47 Cal.4th at p. 174; People v. Hill (1967) 66 Cal.2d 536, 549 ["When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper..."]; and Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 494 [finding no coercion in statements that " 'the... [c]ourt system will not forgive your lies, ' " and an exhortation to the suspect to tell the truth if he wants to receive " 'forgiveness' "].)
The defendants argue that in the instant case, Detective King specifically told Scorza, "I'm gonna do everything I can to help you." The defendants also point out that King "repeatedly told Scorza that his recommendations mattered and that he would tell the District Attorney, parole officer, and the court that Scorza cooperated and see if they could offer him 'something less' than the rest of the guys...." However, King made his statements about "do[ing] everything I can to help you" and seeing whether Scorza might be offered "something less" than the other men at the end of the interview, after Scorza had already admitted his role in the robbery. These comments thus could not have caused Scorza to make the admissions at issue.
3. The Aranda-Bruton redaction
During Scorza's interview with Detective King, Scorza stated, "We all had an understanding man. Nobody here, we ain't here to hurt nobody no matter what. Worst to it if anything come down we gonna get outta here before anybody get hurt." Tylin and Tiawan contend that the trial court should have redacted this portion of Scorza's interview, because, according to Tylin and Tiawan, Scorza's use of the word "we" in that statement identifies them as accomplices in the bank robbery. Based on this contention, Tyline and Tiawan argue that because Scorza did not testify, and thus could not be cross-examined, the admission of Scorza's statement implicating them deprived them of their right to confront and cross-examine witnesses under the Sixth Amendment, in violation of the protective rule announced in Aranda, supra, 63 Cal.2d 518 and Bruton, supra, 391 U.S. 123.
"The Aranda/Bruton rule addresses the situation in which 'an out-of-court confession of one defendant... incriminates not only that defendant but another defendant jointly charged.' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 537.) "A criminal defendant has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The right to confrontation includes the right to cross-examination. [Citation.] A problem arises when a codefendant's confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession." (People v. Lewis (2008) 43 Cal.4th 415, 453 (Lewis).)
Thus, in Bruton, supra, 391 U.S. 123, the United States Supreme Court held that in the context of a joint criminal trial, a defendant's rights under the confrontation clause of the Sixth Amendment were violated by the introduction of a nontestifying codefendant's confession which named and incriminated the defendant.
The California Supreme Court had reached a similar conclusion to the one reached in Bruton a few years earlier, in Aranda, supra, 63 Cal.2d 518. In addition to concluding that codefendant confessions that incriminate another defendant impermissibly violate the nondeclarant's confrontation rights if the declarant does not take the stand, the Aranda court also held that a codefendant's confession may be introduced at a joint trial if the confession can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. (Id. at pp. 530-531; see also Lewis, supra, 43 Cal.4th at p. 454.)
In Richardson v Marsh (1987) 481 U.S. 200 (Richardson), the United States Supreme Court similarly limited the scope of the Bruton rule. In Richardson, the United States Supreme Court considered the effect of a redacted confession made by one of the two defendants on the other defendant. (Richardson, supra, 481 U.S. 203.) The Richardson court held that at a joint criminal trial, the confrontation clause is not violated by the admission of a nontestifying codefendant's confession when (1) a proper limiting instruction was given to the jury, and (2) the confession was redacted to eliminate the nondeclarant defendant's name and any reference to his or her existence. (Id. at p. 208.)
During the trial in Richardson, the trial court permitted the prosecution to present to the jury the redacted confession of one defendant, Williams, but only insofar as the confession would be redacted so as to "omit all reference" to his codefendant, Marsh—"indeed, to omit all indication that anyone other than... Williams" and a third person had "participated in the crime." (Richardson, supra, 481 U.S. at p. 203.) The trial court also instructed the jury not to consider the confession against Marsh. (Id. at p. 205.) As redacted, the confession indicated that Williams and the third person had discussed the murder in the front seat of a car while they traveled to the victim's house. (Id. at pp. 203-204, fn. 1.) The redacted confession contained no indication that Marsh—or anyone other than Williams and the third person—had been in the car. (Ibid.)
Later in the trial, however, Marsh testified that she had been in the back seat of the car when Williams and the third person discussed the murder. (Richardson, supra, 481 U.S. at p. 204.) For that reason, in context with other evidence presented at trial, Williams's confession could have helped the jury conclude that Marsh knew about the murder in advance and that she had knowingly participated in the crime. (Ibid.) Nevertheless, the Richardson court determined that the admission of the confession at issue was sufficiently dissimilar from the admission of the codefendant's confession in Bruton with respect to its implication of the nondeclarant so as not to constitute Bruton error. Specifically, the Richardson court noted that the declarant's confession in Bruton was "incriminating on its face, " and "expressly implicat[ed]" Bruton, whereas, Williams's confession amounted to "evidence requiring linkage" that "became" incriminating with respect to Marsh "only when linked with evidence introduced later at trial. [Citation.]" (Id. at p. 204.)
In Gray v. Maryland (1998) 523 U.S. 185 (Gray), the United States Supreme Court considered a redacted confession that fell somewhere between the confessions at issue in Bruton and Richardson. In Gray, "the prosecution... redacted the codefendant's confession by substituting for the defendant's name in the confession a blank space or the word 'deleted.' " (Gray, supra, at pp. 188, 192.)
The Gray court concluded that simply redacting a confession to replace a defendant's name "with an obvious indication of deletion, such as a blank space, the word 'deleted, ' or a similar symbol, " is insufficient under Bruton to eliminate the constitutional confrontation problem identified in Bruton. (Gray, supra, 523 U.S. at pp. 192-194.) The court explained:
"Bruton, as interpreted by Richardson, holds that certain 'powerfully incriminating extrajudicial statements of a codefendant'—those naming another defendant—considered as a class, are so prejudicial that limiting instructions cannot work. [Citations.] Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton court found. Redactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." (Gray, supra, at p. 192.)
In reaching this conclusion, the Gray court observed that such statements operate just like a confession that names the defendant—they point an accusatory finger at the person "sitting at counsel table, " i.e., the codefendant. (Gray, supra, 523 U.S. at p. 193.) The Gray court acknowledged that a jury had to use inference in order to connect the blanks in the redacted statement to the defendant, and that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially." (Gray, supra, at p. 195, italics omitted.) However, the Gray court concluded that Richardson's application depended "in significant part upon the kind of, not the simple fact of, inference." (Gray, supra, at p. 196, italics omitted.) In Gray, the court noted that, "[t]he inferences at issue... involve[d] statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." (Ibid.) According to the Gray court, by replacing a proper name with the word "deleted, " the redacted confession in that case resulted in an "accusation" that was " 'more vivid than inferential incrimination, and hence more difficult to thrust out of mind.' [Citation.]" (Ibid.)
The Gray court suggested that further redaction, beyond simply using a blank space, the word "delete, " or a symbol in place of a proper name, could render a confession admissible in a joint trial. (Gray, supra, 523 U.S. at p. 196.) The Gray court provided an example of an alternative method by which the prosecutor and/or court could have redacted the confession in that case that would have met Bruton's standards:
"Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said,
" 'Question: Who was in the group that beat Stacey?
" 'Answer: Me, deleted, deleted, and a few other guys.' [Citation.]
"Why could the witness not, instead, have said:
" 'Question: Who was in the group that beat Stacey?
" 'Answer: Me and a few other guys.' " (Gray, supra, 523 U.S. At p. 196.)
Here, any direct references to Scorza's codefendants were completely eliminated, and the redacted version of his postarrest statement did not replace any of the codefendants' names with a blank space, the word "delete" or something similar, or a symbol. Further, there was no indication that the statement had been redacted, and in the entire one and one-half pages of transcript, there is no discussion of any person other than Scorza himself, except for Scorza's statement, "We all had an understanding man.... [W]e ain't here to hurt nobody no matter what.... [I]f anything come down we gonna get outta here before anybody get hurt."
Tylin and Tiawan argue that, given the nature of the other evidence presented at trial—evidence that implicated them in the robbery, "Scorza's statements about any agreements or understandings they may have had inherently implicated [Tiawan] and suggested Scorza, [Tiawan], Tylin, and McAdams were involved in a conspiracy."
In our view, Scorza's comments to the effect of "[w]e all had an understanding" are similar to the proposed redaction that the Gray court suggested would have satisfied the rule in Bruton. The United States Supreme Court suggested in Gray that a redaction that indicated that specific names had been deleted, i.e., " 'Answer: Me, deleted, deleted, and a few other guys, ' " was insufficient to protect the nondeclarant's confrontation rights, but that those rights would not have been implicated if the court had provided the jury with the statement " 'Answer: Me and a few other guys.' " (Gray, supra, 523 U.S. at p. 196, italics added.) The statement "[m[e and a few other guys" indicates simply that multiple people may have been involved in the crime, as did Scorza's use of the word "we."
Although the redacted version of Scorza's statement did not entirely eliminate any reference to the "existence" of accomplices, as did the redacted statement in Richardson, supra, 481 U.S. at page 211, neither did it obviously refer directly to Tylin and/or Tiawan (see Lewis, supra, 43 Cal.4th at p. 455). Moreover, it was clear from all of the evidence that Scorza had not acted alone in committing the bank robbery, so the fact that he used the word "we" during his admission added nothing new.
In any event, even if we assume that the trial court erred in failing to redact that portion of Scorza's statement in which he used the word "we" to describe the four accomplices' understanding that they were not going to hurt anyone during the robbery, such error would not require reversal of Tylin or Taiwan's convictions in this case, even under the harmless beyond a reasonable doubt standard announced in Chapman v. California (1967) 386 U.S. 18. There is overwhelming evidence that Tylin and Tiawan participated in this crime. Not only were both men seen running from the getaway car, in which police found a significant portion of the money stolen from the bank, but they acknowledged their involvement in the crime during conversations they had with their accomplices while sitting in the back seats of police patrol cars. In addition to this highly incriminating evidence, there was a significant amount of other evidence linking both men to the bank robbery. We can say with confidence that even if the court had not permitted the jury to hear the portion of Scorza's statement in which he uses the word "we" to describe the plan not to harm anyone in the bank, the result in this case would have been the same.
B. A juror's reading of an article about the bank robbery before being chosen as a juror, and sharing some information from the article with other jurors about a fourth accomplice, constituted juror misconduct; however, given the state of the record, the presumption of prejudice that arises from the misconduct has been overcome
The defendants contend that prejudicial juror misconduct occurred when Juror No. 1, who had read an article about the case prior to being selected to be on the jury, shared information that she gleaned from that article with other jurors. Specifically, in response to another juror's query about why McAdams was not on trial, Juror No. 1 said that she believed McAdams had pled guilty and that he was serving a 13-year sentence.
This information came to light after Juror No. 12 mistakenly read an article about the case in a local newspaper one morning during deliberations, and informed the court about it. That juror did not share any of the information about the article that she had read with other jurors.
According to the defendants, "[I]t cannot be said that the jurors' consideration of the extrinsic evidence relating to McAdams' plea and sentence did not affect the verdict...." They contend that, "the jurors likely concluded that since McAdams was found and arrested with appellant[s], appellant[s] must have been guilty as well."
Although Tiawan was the only defendant to raise this argument in briefing on appeal, Tylin and Scorza joined in the argument. We therefore address the argument as to all three defendants.
1. Additional background
One morning, while the jury was deliberating, Juror No. 12 informed the bailiff that she had seen an article in the local newspaper about the case that morning, and inquired as to whether she should tell the judge. Upon learning that a juror had read an article about the case that morning, the court obtained a copy of the article and provided copies to all counsel. The court and counsel agreed that information contained in the article was "incorrect, " and discussed how to proceed. The court suggested that it could ask all of the jurors whether they had read the article, and then instruct the jurors that "it's not evidence in this case and it's not to be considered for any purpose and... [that] everyone agrees that it's incorrect in any event."
The article in question was published on the back page of the Inland Valley Daily Bulletin on April 9, 2009.
When the court asked the jurors whether any of them had seen or read the article in the newspaper that morning, only Juror No. 12 raised her hand. Juror No. 12 informed the court that she had read the article. Juror No. 12 indicated that she had said to the other members of the jury, "We made the paper, " and told them, "It says we've been deliberating since Tuesday and we were to appear this morning at 9:00." Juror No. 12 stated that she had not shared any further information from the article with other members of the jury, and the jurors indicated that they had not received any additional information about the article from Juror No. 12 or from any other source.
Juror No. 12 explained, "I look at the paper every day and see what's what, and after that, I thought, that's our trial." The trial court then admonished the jury:
"At this point all of you are directed not to read any articles if they should appear on this case. Only one person had read it or knows anything about what the article says. For all your purposes, the attorneys agree that the article is incorrect in terms of the facts, for what it's worth. The important thing is that it's not evidence in this case, even if it was correct, and you cannot consider it for any purpose. That's all of you, especially Number 12.
"Ma'am, the fact that you read it, can you accept the fact that, one, the attorneys all agree it's not correct? Two, and most importantly, is: Can you, given whatever you read, disregard it as not evidence and not having it come into your deliberations? It is not for your consideration whatsoever. It's like it never occurred. And we are telling you it's incorrect on top of it. Is that something you can do?"
Juror No. 12 responded, "Yes." The court then asked, "That you can be fair and deliberate the way the Court has instructed you?" Juror No. 12 replied, "Yes, sir."
Immediately thereafter, the court instructed the jury, "Don't discuss this, especially Juror Number 12, any further with anyone or any future article." The court also told the jurors, "[I]f for some reason you get information like this, say, in an article and it is bothering you and you think it wipes you out and you can't be fair for some reason, I need to know about that, too. Just as important." After asking the attorneys whether there was anything else to be done and receiving no additional requests, the court sent the jury back to continue deliberating.
In response to a defense motion for mistrial based on Juror No. 12's reading of the article, the trial court stated, "I am finding that there's no grounds for a mistrial. The Court believes the jury has been admonished in a correct fashion to the best of our ability, and it is denied at this juncture...." The court continued, stating that the article, as described by the prosecutor, "is rather short, and the only issues that it does address that could be concerning punishment and what happened to Mr. McAdams. Everything else is more or less what they are charged with. When the jury went out, those are the only two issues that the jury was not supposed to be aware of, Mr. McAdams' 13-year prison sentence and potential exposure. If they follow the Court's instructions, that would not be an issue which is not to consider punishment [sic]."
Later that day, the trial court stated on the record, outside the presence of the jury, that another juror had indicated to the bailiff that one of the jurors "may have read something before they were selected." The court said:
"Counsel, I told you off the record a moment ago that I am inclined to bring them in, find out who may have got some information and when, and to the extent it breaks down, it appears to maybe [be] one person, you know, I will make sure about anyone else getting information from that person or anything, and then to the extent it breaks down to one person, I will remove the other jurors and inquire further on the details of the particular juror or jurors. How does that sound?"
Tylin's counsel requested that the court "make [an] inquiry of when that person, if there is a person, told the other jurors, to make sure it was in the deliberation room and wasn't at some other time." The court agreed to make the requested inquiry.
The trial court brought all 12 jurors into the courtroom and inquired whether one or more of them had "maybe... seen an article on the Internet about this case prior to being selected as a juror." The foreperson told the court that one juror had seen an article prior to voir dire. The court then asked, "Has any information, specific information, been shared with any of you in regards to that article?" After a couple of jurors indicated that no information had been shared with them, others indicated that Juror No. 1 had shared information with them on a single occasion—the prior day while the jury was deliberating.
The court then said, "All right. All the jurors that heard anything, whatever you know in that regard, is it something that you can disregard and not have it enter into deliberations?" The jurors collectively responded, "Yes." The court asked, "Any doubt in your mind?" to which the jurors all responded, "No." The court then asked which jurors had heard the information, and Juror No. 6 offered, "We all heard it." The court then said, "Everyone agree that you all probably heard it, whether you were paying much attention or not? Okay." Juror No. 7, however, indicated that he or she had not heard the information. The court sent Juror No. 7 into the hallway before eliciting any further information from the remaining jurors.
The court then engaged in the following colloquy with the jurors:
"THE COURT: Okay. Juror Number 7 has left. [¶] Yesterday in the jury room about what time?
"JUROR NUMBER 6: I don't remember it being yesterday. I remember hearing her reading an article, but I don't remember it being yesterday.
"THE COURT: Was it in the deliberation room?
"JUROR NUMBER 6: Yes. I remember it being in the deliberation room.
"THE COURT: Is there any doubt that anyone understood it as a one-shot deal, fairly short, and all at one time? Juror Number 1.
"JUROR NUMBER 1: Your Honor, it was not an attempt to share information. It was somebody said something, and then I answered, but it wasn't with intent to share specific information, and nothing that was read in that article has clouded my judgment.
"THE COURT: Let me ask you: What is it that you shared, if you remember?
"JUROR NUMBER 1: Well, somebody asked something about someone who is not even in this courtroom.
"THE COURT: About one of the defendants not in trial here?
"JUROR NUMBER 1: Yes, [Y]our Honor.
"THE COURT: There was some discussion. What did you share in regards to something it appears that occurred in an Internet article is what you are thinking, right?
"JUROR NUMBER 1: Yes. You want me to say it?
"THE COURT: Hold on a minute. Hold on.
"JUROR NUMBER 3: Before she shares, I only remember one thing, I don't want to hear anything else.
"THE COURT: Let me make sure then.
"JUROR NUMBER 3: I only remember one thing.
"THE COURT: Let's do that. Let's have the rest of you go in the hallway, and I will have you come back in...."
After all of the jurors except Juror No. 1 left the courtroom, the court asked what Juror No. 1 remembered having said. She responded, "Someone asked why they thought the fourth person was not here, and I said that I thought I had read he took a plea bargain." Upon questioning by the court, Juror No. 1 said that she was not sure whether she had told the other jurors how she may have obtained that information. The court then asked Juror No. 1 whether she remembered the instruction that jurors "are not to speculate as to why [an individual implicated by the evidence] is not here and not to consider it for any purpose." Juror No. 1 responded, "And I haven't." The court asked whether she could "continue not doing that, " to which she responded, "Absolutely." In response to the court's question, "You wouldn't have any problem with that? You can be fair in deliberation and leave that out as if it never was a fact and not have it come into your deliberations at all?" Juror No. 1 responded, "Absolutely."
The court then had each juror, except Juror No. 7, return to the courtroom one by one. The court asked each juror what he or she may have heard from Juror No. 1. For example, the court asked Juror No. 2, "[W]hat do you think you heard from Juror Number 1 in... regard [to what] we are talking about?" Juror No. 2 answered, "All I remember hearing was that she had read an article and that the article she read just pretty much talked about the events that occurred that day but not in detail, and all she said was that McAdams took a plea bargain. And that's all I heard."
When asked what she had heard from Juror No. 1, Juror No. 3 responded, "That before she was sworn in as a juror, she researched the article on the Internet and told us about McAdams and his number of years in jail."
Juror No. 4 responded to the court's inquiry about what he or she remembered hearing from Juror No. 1 on this issue by stating, "Discussed about Mr. Adams [sic] being he was still alive, " and when pressed for more information, said that he or she remembered nothing else.
In response to the court's question about what Juror No. 1 may have said, Juror No. 5 said, "She just read the article, and that's pretty much it." When the court asked if he or she remembered any details of what Juror No. 1 had read, Juror No. 5 said, "No, no details."
Similarly, when asked what Juror No. 1 may have said "in regards to this subject matter, " Juror No. 6 responded, "All she said was she had read an article on the Internet. I heard her say she read it on the Internet during jury selection." Juror No. 6 said that he had not heard anything else about the article or its subject matter.
When the court asked Juror No. 8 what she remembered hearing from Juror No. 1, Juror No. 8 responded, "A comment was made about where McAdams was. She said she knew because she saw it on the Internet that he was in jail. That's the only thing I remember."
Juror No. 9 responded to the court's inquiry by saying, "She just made a comment about reading something in the Internet. That was it." Juror No. 9 did not remember any details about the article.
When asked about what, if anything, he remembered Juror No. 1 having said about "the subject matter we have been talking about recently, " Juror No. 10 said simply, "Sentencing information for—I believe it's McAdams." When asked for further information, Juror No. 10 said, "The conversation had come up how we didn't know anything about any of the other defendants, and she had spoken that she did and then explained that she had looked up an article and the sentencing information basically that she had seen." The court asked if Juror No. 10 remembered "[a]ny other details of the sentencing information, " but Juror No. 10 said that he did not.
When the court asked Juror No. 11 what she had heard Juror No. 1 say regarding the article, Juror No. 11 responded, "Well, actually what I heard was that she had read the article on the Internet, but I didn't give it a lot of credence because I was pouring coffee and doing all. It didn't pertain to anyone here, so I just kind of, oh, well." When pressed as to whether she remembered any details, Juror No. 11 responded, "I don't remember the detail other than she read the article, and it was about the other person, but it didn't pertain to any of these defendants, so I didn't think it was—I didn't give it any credence."
When the court asked Juror No. 12 what she had heard from Juror No. 1, Juror No. 12 said, "Spoke of Mr. McAdams had pled and he was serving his time."
In addition to asking each juror about what he or she had heard or remembered with respect to what Juror No. 1 had said regarding the article, the court also asked each juror a series of questions concerning whether the juror remembered the instruction that jurors were not to speculate or consider for any purpose why someone might not be on trial in the case and/or that facts not presented in evidence were not to be considered; whether the juror had followed that instruction up until that point; and whether the juror believed that he or she could continue to follow that instruction. Each juror answered these questions in the affirmative.
After speaking with each juror except Juror No. 7, the court spoke with the attorneys outside the presence of the jurors. The court asked the attorneys if they would agree to a re-reading of "222, evidence, 373, and... 101, cautionary admonition before and after jury is selected." All of the attorneys agreed. After this discussion, the jury returned to the courtroom, and the court reread the following instructions:
"During the trial do not talk about the case or about any of the people in the case or any subjects in your case, not even your family, friends[, ] spiritual advisors, or therapists. Do not share information about the case in writing, by e-mail, or on the Internet. You must not talk about these things with other jurors either, until the time comes for you to begin your deliberations. As a juror you may discuss the case together only after all the evidence has been presented, the attorneys have completed their arguments, and I have instructed you on the law. After I tell you to begin your deliberations, you may discuss the case only in the jury room and only when all jurors are present. You must not allow anything that happens outside of the courtroom to affect your decision. During the trial, do not read, listen to, or watch any news report or commentary about the case from any source. Do not do any research on your own or as a group. Do not use a dictionary, Internet, or other reference materials. Do not investigate facts or law. Do not conduct any tests or experiments or visit the scene of any event involved in the case. If you happen to pass by the scene, do not stop and investigate. During the trial do not speak to any party, witness, or lawyer involved in the case. Do not listen to anyone who tries to talk to you about the case or about any of the people or subjects involved in it. If someone asks you about the case, tell him or her you cannot discuss it. If that person keeps talking to you about the case, you must end the conversation. When the trial is ended and you have been released—that's not really pertinent. I am going [to] keep on here. If you receive any information about this case from any source outside of the trial, even unintentionally, do not share that information with any other juror. If you do receive such information or if anyone tries to influence you or any juror, you must immediately tell the bailiff.
"Some words or phrases that may be used during the trial have legal meanings different from everyday use. These words and phrases will be specifically defined. Listen carefully and follow the definitions I give you. Words and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings.
"Keep an open mind throughout the trial. Do not make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberations. Do not take anything I say or do during the trial as an indication about what I think of the facts[, ] witnesses or the verdict. Do not let bias, sympathy, prejudice, or public opinion influence your decision. You must reach your verdict without any consideration of punishment.
"222: You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. Nothing that the attorneys say is evidence. In their opening statements and closing argument, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they help you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked a questions that suggested it [is] true. During the trial attorneys may have objected, asked to strike answers given by witnesses. I ruled on the objections according to law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled the way I did. If I ordered testimony stricken from the record, then you must disregard such testimony, not consider it for any purpose. You must disregard anything you saw or heard when the Court was not in session, even if it was done or said by the parties or witnesses.
"[¶]... [¶]
"The evidence shows that another person may have been involved in the commission of the crimes charged with the defendants. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether that other person has or will be prosecuted. Your duty is to decide whether the defendants here [i]n this trial have committed the crimes charged and the allegations as alleged.
"As a group can all of you follow the law? I am seeing yeses. I don't see any nos."
After providing this admonition, the trial court initially sent the jury back to continue deliberating. However, almost immediately thereafter, one of the defense attorneys requested that the jury not be permitted to continue to deliberate until she had an opportunity to speak with her client and decide whether to move for mistrial or to excuse Juror No. 1. The court agreed to release the jurors for an early lunch.
After additional proceedings that were conducted off the record, the court and the attorneys convened in the courtroom and the defense attorneys moved for a mistrial. Tylin's attorney argued, "Given what the jury said in somewhat of a Hovey setting, we would request a mistrial. Juror Number 1 had read some articles prior to selection, talked about [it] briefly to some of the other jurors. Some remembered more than others. Given that, we are requesting a mistrial. [¶] Submit it."
The trial court denied the defendants' joint motion for a mistrial, stating,
"From the Court's perspective, the issue was brought to the Court's attention, and upon inquiry of all the jurors, the Court believes that the information was shared in a passing way, and that each juror discussed [with the court] what they knew, said that they can follow the law and had [followed the law] up to this point, said they can continue to do so. I specifically reinstructed them on all pertinent instructions, as the attorneys agreed, and I believe that each of them can follow the law, having talked to each of them, and that nothing up to this point outside of this trial in the way of evidence or facts have come into their deliberation and that they can continue to keep everything that's not supposed to be in deliberations out of deliberations. I asked each of them. And I believe that there ha[s] been no unfairness, and being no unfairness on these particular issues, having talked to each juror, for that reason, the motions for mistrial are respectfully denied."
2. Applicable law
" '[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance... which suggests a likelihood that one or more members of the jury were influenced by improper bias.' (In re Hamilton (1999) 20 Cal.4th 273, 294, italics omitted.) A juror who 'consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors' commits misconduct. [Citation.] Jury misconduct 'raises a rebuttable "presumption" of prejudice.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).)
"On appeal, the determination whether jury misconduct was prejudicial presents a mixed question of law and fact ' "subject to an appellate court's independent determination." ' (People v. Danks (2004) 32 Cal.4th 269, 303 (Danks).) We accept the trial court's factual findings and credibility determinations if supported by substantial evidence. [Citation.]" (Tafoya, supra, 42 Cal.4th at p. 192.)
Because juror misconduct gives rise to a presumption of prejudice, the prosecution must rebut the presumption by demonstrating that "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." (People v. Clair (1992) 2 Cal.4th 629, 668 (Clair); see also People v. Hardy (1992) 2 Cal.4th 86, 174 ["The presumption of prejudice may be rebutted, inter alia, by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm."].) "By contrast, with ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. [Citation.]" (Clair, supra, at p. 668.) "Manifestly, the standard is stricter for misconduct than for ordinary error. [Citations.]" (Ibid.)
"We assess prejudice by a review of the entire record. 'The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.' [Citation.]" (Tafoya, supra, 42 Cal.4th at p. 192.)
"The first of these tests is analogous to the general standard for harmless error analysis under California law." (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).) " ' Under this standard, a finding of "inherently" likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. Application of this "inherent prejudice" test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information.' [Citation.]" (Danks, supra, 32 Cal.4th at p. 303, italics added.)
" '[E]ven if the extraneous information was not so prejudicial, in and of itself, as to cause "inherent" bias under the first test, ' the nature of the misconduct and the 'totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.' [Citation.] 'Under this second, or "circumstantial, " test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered.' [Citation.]" (Danks, supra, 32 Cal.4th at p. 303.)
"In an extraneous-information case, the 'entire record' logically bearing on a circumstantial finding of likely bias includes the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant." (Carpenter, supra, 9 Cal.4th at p. 654.) "In general, when the evidence of guilt is overwhelming, the risk that exposure to extraneous information will prejudicially influence a juror is minimized. [Citation.]" (Tafoya, supra, 42 Cal.4th at p. 192; see also Carpenter, supra, 9 Cal.4th at p. 654 ["the stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict"].) Further, "[a]n admonition by the trial court may also dispel the presumption of prejudice arising from any misconduct." (Tafoya, supra, at pp. 192-193.)
" 'We emphasize that before a unanimous verdict is set aside, the likelihood of bias under either test must be substantial.' As indicated in the high court decisions discussed above, the 'criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness.' [Citation.]" (Danks, supra, 32 Cal.4th at p. 304, italics added.)
3. Analysis
There can be no doubt that juror misconduct occurred here. Juror No. 12 read an article about the case during deliberations, and Juror No. 1 read an article about the case prior to being selected as a juror, and later shared some damaging information from that article with other jurors. Courts have found juror misconduct where a juror actively or passively obtains information about a case from outside sources. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 518–520 [consideration of outside newspaper articles during trial]; Danks, supra, 32 Cal.4th at pp. 306–307 [conversation with pastor about the case]; People v. Nesler (1997) 16 Cal.4th 561, 579–580 [overhearing information about the case in a bar and revealing it to fellow jurors].) Thus, Juror No. 1's conduct raises a rebuttable presumption of prejudice, and the prosecution must rebut the presumption by demonstrating "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." (Clair, supra, 2 Cal.4th at p. 668.)
Although the defendants discuss Juror No. 12's conduct with respect to her reading an article in a local newspaper about the case, they make no specific argument that her conduct amounted to prejudicial juror misconduct. Rather, the defendants focus on the circumstances surrounding Juror No. 1's sharing with the other members of the jury information about McAdams that she gleaned from an Internet article.
We conclude that even though the misconduct that occurred here was significant, under the particular circumstances of this case, the presumption of prejudice arising from that juror misconduct has been overcome.
With respect to the first test for determining whether there appears to be a substantial likelihood of juror bias, that test requires that the extraneous information to which the jury was exposed be examined in context. (Danks, supra, 32 Cal.4th at p. 303.) We conclude that the extraneous material, although potentially quite prejudicial, was not inherently and substantially likely to have influenced any of the jurors in this case, given the state of the evidence. At the outset, we acknowledge that the jury should not have had access to any information whatsoever regarding McAdams's guilty plea, or the sentence that he received. The implication from the fact that McAdams had pled guilty, together with the fact that the evidence at trial established that the defendants were with McAdams just before all four were arrested, is that the defendants on trial were also guilty. In addition, the jury was not to consider the potential punishment that any defendant might be facing, yet Juror No. 1 informed the other members of the jury that McAdams was serving a 13-year sentence.
Having considered whether the erroneous introduction of this evidence at trial would have warranted reversal of the judgment (see Danks, supra, 32 Cal.4th at p. 303), we conclude that reversal would not have been warranted. As we previously stated, the evidence against all three defendants was overwhelming. Witness after witness testified concerning what occurred in the bank, and both video and photographic evidence from the bank robbery depicted individuals who looked similar to the defendants. In addition, various items of clothing that were introduced in evidence were connected to each of the defendants. Witnesses saw the men get into a red getaway car and attempt to evade the police by leading police on a high-speed chase. When the car came to a stop after rear-ending another car, witnesses identified the defendants as the men who jumped out of the vehicle and ran. Stacks of $100 bills were found in and near the car from which the defendants had emerged, including marked bills from the bank that had just been robbed. In addition, victim MacDonald identified Scorza and Tylin as the men who had broken into his house that day.
Beyond this, the defendants who were on trial spoke about the robbery while in police custody, at a time when they were not aware that they were being recorded. Tylin and Scorza talked about how they "could'a got away" because "[b]efore we got off the freeway, the police stopped chasin' us." Scorza thought that someone "outside the bank followed us, " and Tylin said, "[S]omebody probably seen us run to the car...." They also spoke about the gun, and the fact that they had been told that the robbery had been captured on camera, and lamented the possibility that their "faces was exposed for like fifteen, twenty minutes" to the cameras in the bank. Tylin and Scorza discussed how they should not have trusted MacDonald when he offered to drive them home to Compton, and agreed that they would accept a plea bargain of "four or five" years if it were offered. After Scorza said, "All that money, on hood, that nigga. All that money.... [¶]... Imagine if we made it there with the whole sack though, " the men started talking about what they would have done if they had escaped with the money from the robbery.
In Tiawan's discussion with McAdams, after McAdams wondered aloud whether the other men "g[o]t that money, " Tiawan said, "... I seen it on the computer, and they got caught." McAdams then told Tiawan that he thought that they had taken "[p]robably... like two hundred thousand man." The two proceeded to discuss how they thought that they had lost the police when they got off the freeway.
In addition, the evidence against Scorza included his own admission of guilt during his interview with Detective King.
In light of the substantial and overwhelming evidence that Scorza, Tiawan, and Tylin were, in fact, three of the four persons who robbed the bank, we conclude that the extrinsic evidence concerning McAdams's plea bargain and sentence, viewed in context, was not inherently and substantially likely to have influenced any of the jurors who heard this information.
However, our inquiry does not end with our conclusion that, judged objectively, the information regarding McAdams was not inherently and substantially likely to have influenced the verdict. We must also " 'look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely [that any particular] juror was actually biased against the defendant.' [Citation.]" (Tafoya, supra, 42 Cal.4th at p. 192, italics added.)
Our review of the record leads us to the conclusion that it is not substantially likely that any particular juror was actually biased against any or all of the defendants as a result of being exposed to the extraneous information from the newspaper article. There is nothing in the record that would suggest that any of the jurors who heard this information from Juror No. 1 were biased against Scorza, Tiawan or Tylin. The court admonished each juror individually (with the exception of Juror No. 7, who did not hear any of the improper information), reminding them that they must disregard any information other than evidence admitted at trial, and each juror responded affirmatively to the court's questions as to whether her or she could continue to comply with the court's instructions.
In addition, there is no indication that Juror No. 1—the juror who shared the extraneous information with other jurors—was biased against the defendants. She did not bring up this information to the other jurors in a manner that would indicate a desire to purposely undermine the defendants. She responded strongly and affirmatively that she would not consider why McAdams was not on trial "for any purpose, " and said that she could "leave that out as if it never was a fact." She also said that she believed she could be "fair in deliberations."
Other circumstances also support our conclusion that it is not substantially likely that any juror was actually biased against the defendants. During deliberations, the jury sent 10 questions to the court, including questions seeking further instruction on certain aspects of the law. This indicates the seriousness with which the jury undertook its deliberations. In addition, the jury did not find the defendants guilty of all of the charges against them. Rather, the jury returned "not true" verdicts as to all of the gang enhancement allegations, as well as the enhancement allegations of personal use of a firearm. In addition, the jury was unable to reach a unanimous verdict with respect to any of the enhancement allegations of the use of a firearm by a principal. These findings were consistent with the weight of the evidence as to these allegations, demonstrating that the members of the jury carefully considered the evidence and deliberated fairly.
Because there does not appear to be a substantial likelihood of juror bias, there is no basis for reversing the defendants' convictions on the ground of juror misconduct.
C. Tylin and Scorza forfeited the claim that the trial court should have exercised its discretion to reduce their felony convictions for dissuading a witness to misdemeanors
Tylin and Scorza argue that the trial court had a sua sponte duty to exercise its discretion to reduce their felony convictions for dissuading a witness to misdemeanor convictions, under section 17, subdivision (b).
Tylin and Scorza were both charged with dissuading a witness in violation of section 136.1, subdivision (b)(1). A violation of section 136.1 is known as a "wobbler, " i.e., a crime that can be charged as either a misdemeanor or a felony. The prosecutor charged the offense as a felony in this case, and the jury found both Tylin and Scorza guilty of the offense as charged.
Section 17, subdivision (b) "authorizes the reduction of 'wobbler' offenses—crimes that, in the trial court's discretion, may be sentenced alternately as felonies or misdemeanors—upon imposition of a punishment other than state prison [citation] or by declaration as a misdemeanor after a grant of probation [citation]." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) Because the reduction of a wobbler is a discretionary sentencing choice, any claim involving the trial court's failure to make or articulate its discretionary sentencing choices must be raised in the trial court. If such a claim is not raised in the trial court, the claim will be forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)
Neither Tylin nor Scorza requested that the trial court exercise its discretion to treat the charge of dissuading a witness as a misdemeanor at sentencing. Both defendants were on notice that the offense would be treated as a felony, since it was charged as a felony in the information. The trial court could have easily addressed the issue of its discretion to sentence the wobbler offense as a misdemeanor if either defendant had raised that issue in the trial court. (See Scott, supra, 9 Cal.4th at p. 353.) We conclude that because neither Tylin nor Scorza objected to the court's felony sentencing with respect to the offense of dissuading a witness, they have forfeited their claim of error pertaining to that issue.
IV
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P. J., , O'ROURKE, J.