Opinion
E050821
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PATRICK SIMON, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVA028146)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Conditionally reversed and remanded with directions.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Joseph Patrick Simon (defendant) appeals his conviction for second degree murder and assault on a child causing death. He contends that a juror's intentional concealment of information which would have caused his attorney to exercise a peremptory challenge was prejudicial misconduct requiring reversal of his conviction. We agree, and we conditionally reverse his conviction and remand for further proceedings on defendant's motion for a new trial.
PROCEDURAL HISTORY
Defendant was charged with one count of first degree murder (Pen. Code, § 187, subd. (a)); assault on a child causing death (Pen. Code, § 273ab); and torture (Pen. Code, § 206). (All further statutory citations refer to the Penal Code unless another code is specified.) A jury found him guilty of second degree murder and assault on a child causing death. It deadlocked on the torture count, and the court declared a mistrial as to that charge.
The information also charged Aimee Bell, defendant's girlfriend and the mother of the victim, with one count of child abuse. (Pen. Code, § 273a, subd. (a).) Bell pleaded guilty to child endangerment and was sentenced to two years in prison.
The court denied defendant's motion for a new trial based on juror misconduct. It sentenced him to 25 years to life for assault on a child causing death and to 15 years to life for second degree murder. The sentence for murder was stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
FACTS
Defendant's girlfriend, Aimee Bell, had a child named Jayden, who was born in September 2005. Soon after they began dating around April 2006, defendant would spend the night with Bell and Jayden, and at some times the three of them lived together at various motels.
Jayden died on November 29, 2006. According to Bell, Jayden had been ill for about five days before that date. His symptoms included lack of appetite, lethargy, vomiting and diarrhea. In the early evening of November 28, defendant drove Bell to a mall to buy work pants. Jayden remained in the car with defendant. Defendant took Jayden across the street to a store to buy some disinfectant. Photographs from the store's security camera showed Jayden sitting upright in the shopping cart.
Defendant returned to the mall parking lot to wait for Bell. Before she returned to the car, he called 911 saying that Jayden had stopped breathing. The 911 dispatcher instructed him to perform CPR. When he arrived at the scene, a paramedic saw defendant holding a cell phone between his head and shoulder while performing CPR. The paramedics took Jayden to the hospital. Jayden underwent surgery, but he died.
The prosecution's theory was that defendant assaulted Jayden while they were waiting in the parking lot for Bell. An autopsy revealed blunt force trauma to Jayden's abdomen, resulting in bleeding from the liver, the right kidney and the intestine. It also revealed blunt force trauma to his head and neck, resulting in bleeding in the brain, around the optic nerves and down the neck. The head and neck injuries were caused by at least two instances of acceleration/deceleration, i.e., the head being put into motion and then brought to an abrupt stop by being slammed against something. The force applied to Jayden's head was equivalent to the force from falling from a height of two stories. Either the abdominal injuries or the head injury could have resulted in death.
The medical examiner testified that the abdominal injuries would have caused major discomfort and bleeding, resulting in weakness and possibly vomiting. A child might survive almost a day with those injuries. The head and neck injuries would have rendered him unconscious immediately, and he would not have been able to sit upright.
LEGAL ANALYSIS
1.
PREJUDICIAL JUROR MISCONDUCT REQUIRES REVERSAL OF THE
CONVICTION
Background
Defendant moved for a new trial based on juror misconduct. He contends that the trial court erred in finding that there was no misconduct. He contends that the misconduct was prejudicial. Prejudicial juror misconduct is grounds for a new trial. (§ 1181, subd. (3).)
The issue arose as follows. After the jury was discharged following entry of the verdict, Juror No. 14 approached the prosecutor and asked if the prosecutor recognized her. The prosecutor said that she did not. The juror told the prosecutor that her granddaughter (referred to as Jane Doe by order of the trial court) was the victim in a child molestation case the prosecutor had tried approximately two years earlier and which was soon to be retried. Her son-in-law was the accused molester.
The prosecutor informed the trial judge of the conversation between herself and Juror No. 14. She told the judge that she had met the juror briefly during the trial concerning the juror's granddaughter but had not had any contact with the juror since that trial ended in a mistrial. She would be the prosecutor retrying the case. She recalled speaking to Juror No. 14 only for the purpose of telling her that Jane Doe did not want her to be in the courtroom while she was testifying because Jane Doe would have been embarrassed.
The judge said that he had confirmed with the court reporter that during voir dire, he did not ask the prospective jurors whether they knew either of the attorneys.
The court set a hearing for the following day to determine the extent of the contact and whether any misconduct occurred. At the hearing, the court placed Juror No. 14 under oath. The juror confirmed the substance of her conversation with the prosecutor following the current trial and the nature of her contacts with the prosecutor during the trial involving her granddaughter. Contrary to the prosecutor's recollection, Juror No. 14 stated that she had spoken to the prosecutor for a few minutes before closing arguments in her granddaughter's case and then briefly by telephone after the mistrial. However, she affirmed that she had had no conversation or contact with the prosecutor since that time.
Juror No. 14 testified that she did not discuss her previous history with the prosecutor with any of the jurors on the current case. She testified that during voir dire, the prosecutor looked "straight at [her]" and that she knew that the prosecutor did not recognize her. She "kept waiting" to be asked if she knew anyone in the courtroom, but the question was not asked. She had been on a jury before, and she knew that that was a question that is usually asked.
The juror testified that she would have said she knew the prosecutor if she had been asked, but she did not volunteer the information because she "didn't know how to go about it. Because we were told not to talk to [the attorneys]. And . . . I'm kind of a rookie at this stuff. [¶] . . . [¶] I didn't know who to approach without creating -- I just guess I should've done it then instead of afterward. In all honesty, that's my fault." She said she was not aware that she could have approached the bailiff or the "deputy" with her concern. She testified that she thought that if she did reveal her history with the prosecutor, it would be up to the attorneys whether she would remain on the jury. She knew there was a possibility that the defense attorney would not want her on the jury.
It was defense counsel who referred to "the deputy or bailiff." We assume he meant the deputy clerk staffing the courtroom.
Juror No. 14 was among the three jurors who voted to convict defendant on the torture charge.
Following the juror's testimony, defense counsel moved for a new trial. He told the court that he most certainly would have wanted to remove Juror No. 14 from the jury if he had known about the prior case.
The court made the following factual findings: There was no misconduct by the prosecution. Defense counsel's statement that he would have excused the juror if he had known of the prior relationship was credible, and the court accepted it as true. There was no affirmative misconduct by the juror. The juror's testimony was credible when she said she was waiting for the question to be asked and did not feel that she could approach anyone to talk about the case. The court had strictly admonished the jurors not to talk about the case with anyone, and Juror No. 14 was merely trying to abide by that admonition. The court found that to be consistent with the juror's testimony that she waited to mention her acquaintance with the prosecutor until the court specifically told the jurors that they were free to discuss the case with anyone. Juror No. 14 was not evasive, and the court believed her when she said she did not discuss her acquaintance with the prosecutor with any other jurors.
The court offered to allow the attorneys to submit briefing as to whether a new trial should be granted and proposed to hold a hearing on the date set for sentencing. The court ordered transcripts of jury selection to be provided to both attorneys.
Following briefing and argument, the court denied the motion for a new trial. The court repeated that it found the juror's testimony credible and found that Juror No. 14 did not conceal a material fact and did not attempt to mislead the court. The court also found that "the nature of [the juror's] prior interaction with [the prosecutor] does not rise to such a level [that] she can be presumed to be bias[ed] in her favor or that she could be presumed to have been unfair and unable to perform her duties."
Standard of Review
In reviewing a motion for new trial based on juror misconduct, we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582.) Whether prejudice arose from juror misconduct is a mixed question of law and fact subject to independent review. (Id. at pp. 582-583.)
The trial court's finding that Juror No. 14 did not intentionally conceal a material fact and that no misconduct occurred is not supported by substantial evidence.
A criminal defendant has a constitutional right to a unanimous verdict by an impartial jury. (People v. Wilson (2008) 44 Cal.4th 758, 822.) To protect that right, the defendant has a statutory right to exercise peremptory challenges to prospective jurors who the defendant believes cannot be fair and impartial, as well as to challenge for cause any juror who harbors actual bias. (Code Civ. Proc., §§ 225-227, 229.) Prospective jurors are examined under oath and are obligated to respond truthfully to questions asked during voir dire, in order to allow the parties to exercise peremptory challenges and challenges for cause. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.)
"[T]he voir dire process works only if jurors answer questions truthfully." (People v. Wilson, supra, 44 Cal.4th at p. 822.) Consequently, concealment of a material fact during voir dire is misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 111.) A material fact is one which might lead a party to challenge a prospective juror for cause or to exercise a peremptory challenge. (Ibid.)
Here, defense counsel stated that if he had known of the juror's involvement in a case previously tried by the same prosecutor, he would have exercised a peremptory challenge, and the trial court accepted that as a true statement. It also accepted that the juror's acquaintance with the prosecutor was a material fact. However, the court found that Juror No. 14 did not commit misconduct because she did not intentionally conceal her acquaintance with the prosecutor.
The record discloses another basis for finding that Juror No. 14 concealed material information during voir dire. It appears that all of the prospective jurors were asked if they or any friends or relatives had been victims of crime. Juror No. 14 did not answer that question, either during her initial voir dire or when the defense attorney asked follow-up questions concerning the pending trial of her son-in-law. Although we assume that a criminal defense attorney would wish to voir dire a potential juror to determine whether the juror harbored any bias as a result of the juror's experience with the alleged sexual molestation of her granddaughter by the child's stepfather (see People v. Diaz (1984) 152 Cal.App.3d 926, 936, fn. 4), defense counsel in this case did not raise this as a basis for seeking a new trial.
Under the substantial evidence rule, we must affirm a finding if it is supported by evidence which is reasonable, credible and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not resolve credibility issues. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Rather, we must defer to the trier of fact on questions of credibility because the trier of fact has the advantage of seeing the witness testify and is therefore in a better position to determine whether the witness was truthful. (See Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, disapproved on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.) However, the ultimate test is whether it is reasonable for a trier of fact to make the contested ruling in light of the whole record: "A formulation of the substantial evidence rule which stresses the importance of isolated evidence supporting the judgment . . . risks misleading the court into abdicating its duty to appraise the whole record. As Chief Justice Traynor explained, the 'seemingly sensible' substantial evidence rule may be distorted in this fashion, to take 'some strange twists.' 'Occasionally[,]' he observes, 'an appellate court affirms the trier of fact on isolated evidence torn from the context of the whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably believe the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. Had the appellate court examined the whole record, it might have found that a reasonable trier of fact could not have made the finding in issue. One of the very purposes of review is to uncover just such irrational findings and thus preclude the risk of affirming a finding that should be disaffirmed as a matter of law.' [Citation.]" (People v. Johnson, supra, 26 Cal.3d at pp. 577-578.)
"The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression. Did plaintiff and her mother testify with the conviction and assurance compatible with truthfulness; or did either of them give testimony haltingly as though laboring under the handicap of apprehension and uncertainty or did either of them give it glibly as though a tale learned by rote for the purposes of the courtroom? These are questions which can only be answered by the trier of fact. The court having seen and heard the parties may well have concluded that there was collusion; that the plaintiff's testimony was a fabric of fancy and exaggeration woven to lift her from bonds now distasteful; and that the testimony of plaintiff's mother was a recital of rehearsed evidence." (Maslow v. Maslow, supra, 117 Cal.App.2d at p. 243.)
Here, despite the trial court's conclusion that Juror No. 14 was credible, the court's finding that the juror did not intentionally conceal a material fact is not only not supported by the record, it was flatly contradicted by the juror herself. Juror No. 14 did not deny that she had intentionally withheld the information; rather, she acknowledged that she did, but she attempted to excuse it. She candidly admitted that she knew that the parties, and particularly the defense, would want to know of her acquaintance with the prosecutor before selecting her as a juror, but she did not reveal the information because, she said, she did not know how to bring the information to the court's attention unless she was directly asked whether she knew either of the attorneys, and she was abiding by the admonition not to discuss the case with anyone. Consequently, the court's conclusion that the juror credibly testified that she did not intentionally conceal a material fact is not supported by substantial evidence.
The record also belies both of the juror's excuses for not revealing this information during voir dire.
First, the transcript of jury selection proceedings shows that Juror No. 14 had a perfect opportunity to reveal her history with the prosecutor. During her initial voir dire, Juror No. 14 disclosed that she had a son-in-law who was incarcerated. Later, defense counsel asked about the son-in-law. Juror No. 14 replied that he was awaiting trial. Defense counsel asked if the trial would be in the same county as the current trial. Juror No. 14 replied, "Yes." Defense counsel then asked if there was anything about the son-in-law's experience that would make her unfair to either side. Juror No. 14 replied, "No, not that I know of." There was absolutely nothing to prevent her from saying, in response to those questions, that her son-in-law was awaiting retrial, that the prosecutor in this case had been the prosecutor in that case, and that the case resulted in a mistrial. Instead, her answers were less than candid. Indeed, her answers were evasive, given that she admitted knowing that her prior acquaintance with the prosecutor was material to the defense's determination whether to challenge her.
In light of this exchange, which was cited to the trial court by defense counsel, the juror's testimony that she did not know how to bring that information to the court's attention is not evidence that the trial court could reasonably believe. Moreover, the court had informed the prospective jurors that they could request a private interview if they wished to disclose sensitive matters. Other jurors had done so, and Juror No. 14 unquestionably knew that she could do the same if she was concerned about revealing the nature of the prosecution against her son-in-law.
Juror No. 14's claim that she was just following the court's admonition not to discuss the case with anyone also does not support the trial court's ruling. First, alerting the court about matters which might affect a juror's ability to serve is not discussing "the case." Second, the court repeatedly told prospective jurors that they should feel free to alert the court, at any time, about anything which might affect their ability to be impartial. And, other jurors did inform the court as to various matters affecting their jury service. Consequently, Juror No. 14 was aware that the admonition not to discuss "the case" with anyone did not apply to matters pertaining to their ability to serve as jurors.
Prejudice
Juror misconduct involving the concealment of material information during voir dire raises a presumption of prejudice. (In re Hitchings, supra, 6 Cal.4th at p. 119.) This presumption may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct. (Ibid.)
In this context, prejudice to the defendant lies in having a juror who was not impartial sit on his or her jury. (People v. Carter (2005) 36 Cal.4th 1114, 1208; see also In re Price (2011) 51 Cal.4th 547, 560 ["'[A]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.' [Citation.]" (Italics omitted.)].) Here, because the trial court concluded that there was no misconduct, it did not delve into the question of whether Juror No. 14 was actually biased. Consequently, apart from Juror No. 14's statements during voir dire that she could be fair and would listen to both sides, there is no evidence from which we can conclude that she was impartial despite her intentional concealment of facts which she believed would result in her dismissal from the jury. Such self-serving statements are not sufficient to rebut the presumption raised by her intentional concealment of material facts which suggest that she was not impartial. (People v. Diaz, supra, 152 Cal.App.3d at p. 937.) However, rather than reversing defendant's conviction based on the trial court's erroneous finding that Juror No. 14 did not commit misconduct, as defendant asserts we must, we believe the appropriate remedy is to reverse the conviction conditionally, for the limited purpose of remanding the cause for further proceedings on the new trial motion, to give the prosecution the opportunity to rebut the presumption of prejudice which resulted from the juror's misconduct. (See People v. Lynch (2010) 182 Cal.App.4th 1262, 1278.)
The California Supreme Court has a long and confusing history of contradictory statements concerning the nature of the prejudice which is presumed from juror misconduct. (See People v. Von Villas (1995) 36 Cal.App.4th 1425, 1445-1460 (dis. opn. of Woods (Fred), J.).) The two cases cited above state the rule somewhat differently, but both emphasize that the presumption of prejudice can be rebutted only by evidence in the record which shows that the juror was not biased. In People v. Carter, supra, 36 Cal.4th at page 1208, the court cites Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, which holds, "The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice. [Citation.] Like a judge who is biased, [citation], the presence of a biased juror introduces a structural defect not subject to harmless error analysis. [Citation.]" (Dyer v. Calderon, supra, at p. 973, fn. 2.)
The Attorney General relies on People v. Kelly (1986) 185 Cal.App.3d 118 to argue that on remand, the trial court should decide whether the juror was actually biased. In Kelly, the appellate court held that where a juror unintentionally fails to disclose information sought during voir dire, reversal is required only upon a showing that the juror was actually biased so as to support a challenge for cause. (Id. at pp. 121, 125, 127-128.) Under that circumstance, the defense presumably has the burden to prove bias. Where, as in this case, the juror intentionally concealed information she knew was important, there is a presumption that the juror was not impartial, and the prosecution bears the burden of proving that the juror was not biased. (In re Hitchings, supra, 6 Cal.4th at p. 119; People v. Carter, supra, 36 Cal.4th at p. 1208.)
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2.
SENTENCING ISSUES
Defendant contends that the abstract of judgment must be corrected to reflect the correct number of days of pretrial custody credit to which he is entitled and to accurately state fees assessed by the trial court.
The Attorney General concedes that the trial court made an arithmetic error in the number of days of credit for time served, and we agree that defendant was entitled to three additional days, for a total of 1,249 days. A sentence which fails to award legally mandated custody credits is unauthorized and may be corrected at any time. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) If defendant's new trial motion is denied on remand, the trial court shall issue an amended abstract of judgment which reflects the correct number of days.
Defendant also contends that the abstract must be corrected to reflect fees imposed by the court. He states that the court orally imposed "a $200 court security and criminal conviction assessment" without specifying whether each fee was $200 or whether the two fees totaled $200. He then points out that the sentencing minutes and the abstract of judgment impose an "additional assessment" of $60 per count but do not refer to the $200 fee the court orally imposed.
At the time defendant was sentenced, Penal Code section 1465.8 provided for a mandatory court security fee of $30 for every conviction of a criminal offense. Government Code section 70373 provides for a mandatory court facilities funding fee of $30 for every felony conviction. Consequently, the court was required to impose two $30 fees for each of the two counts of conviction, i.e., a total of $120. Accordingly, regardless of the court's intention with respect to imposing a combined fee of $200 or two fees of $200 each, the amount the court imposed was incorrect. This is not simply a matter of correcting the abstract of judgment, however, because the court's oral pronouncement is the judgment, and it controls over any discrepancy with the sentencing minutes or the abstract of judgment. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) Consequently, if on remand the trial court denies the new trial motion, the court must hold a new sentencing hearing to address the issue of all statutory fines, fees and penalties to be imposed (People v. High (2004) 119 Cal.App.4th 1192, 1201) and issue an amended abstract of judgment which correctly lists, separately, all such impositions and the statutory basis for each.
DISPOSITION
The judgment is conditionally reversed, and the cause is remanded to the superior court for further proceedings on defendant's motion for a new trial, in which the court shall determine whether Juror No. 14 was impartial. If the trial court determines that Juror No. 14 was not impartial, it shall order a new trial. If it determines that Juror No. 14 was impartial, it shall reinstate the judgment, correct the judgment to reflect 1,249 days in presentence custody credits and conduct a new sentencing hearing to impose any statutorily mandated fees, fines or other monetary penalties and shall state the statutory basis for and the amount of each such penalty imposed. The amended abstract of judgment and sentencing minutes shall be forwarded to both parties and to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Richli
J.
Codrington
J.