Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. BA312900, Barbara R. Johnson, Judge
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Susan D. Martynec, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Robert Smith was convicted by jury of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and sentenced to six years state prison after admitting a prior strike conviction (Pen. Code, §§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)). He appeals on the ground that the trial court erred in denying his motion for new trial based on juror misconduct. We affirm.
Facts and Procedural History
On the afternoon of November 18, 2006, Los Angeles Police Officer Alonzo Williams made a hand-to-hand drug buy from appellant. Working undercover with a team of seven officers, Officer Williams approached Alfred Siah at the corner of Industrial and Kohler Streets and asked if anyone was "working," the street vernacular for "is anyone selling narcotics right now?" Siah asked how much he wanted to buy. Officer Williams answered, "I want a dime" [$10 worth] or a DUB, D-U-B [$20 worth of narcotics]."
Siah walked over to appellant who was seated nearby on a white bucket and asked for "a dub." Appellant responded "Okay."
Officer Williams stood next to appellant and gave Siah a prerecorded $20 bill. Appellant took the money and removed four off-white solids from his mouth, handing the solids to Siah. Siah gave the solids to Officer Williams who, based on his training and experience, recognized that it was cocaine base.
Officer Jose Calderon witnessed the sale, radioed the other officers, and provided a description of appellant. Appellant was still sitting on the white bucket. Officer Russell Kumagai arrested appellant and found the prerecorded $20 bill in his front pants pocket.
Motion for New Trial
Appellant contends the trial court erred in denying his motion for new trial. We review for abuse of discretion. (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) Where a party seeks a new trial based on jury misconduct, the trial court undertakes a three-step inquiry. (People v. Duran (1996) 50 Cal.App.4th 103, 112.) First, the court determines whether the declaration in support of the motion is admissible under Evidence Code section 1150. If the declaration is admissible, the court next considers whether the facts establish misconduct. Assuming juror misconduct is found, the court then determines whether it was prejudicial. (Id., at p. 113.) Juror misconduct must be " 'established as a demonstrable realty, not as a matter of speculation.' [Citation.]" (People v. Hord (1993) 15 Cal.App.4th 711, 725.)
The motion for new trial was based on the declaration of juror M.P. who said that "I felt I had been pushed into a corner for so long; I did not want to be there any longer, so I changed my vote." M.P. said that the jurors began the deliberations with a preliminary vote and that M.P. and another juror did not believe the charge was proved beyond a reasonable doubt. The second juror changed his/her vote after further discussioN.M.P., the lone holdout, declared: "I felt like I was being talked down to, like a child. I told the Foreperson and another juror that I am an adult, and not to speak to me like a child. . . . I thought that I shouldn't have to change my mind . . . ."
It is settled that a verdict may not be impeached based on evidence of a juror's mental processes or subjective considerations that influenced his or her vote. (Evid. Code, § 1150, subd. (a); People v. Steele (2002) 27 Cal.4th 1230, 1260-1261.) Evidence Code section 1150, subdivision (a) "'distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved. . . ." ' [Citation.] " (People v. Danks (2004) 32 Cal.4th 269, 302.) A juror may not upset the verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. (Ibid.)
Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
M.P. complained that many jurors "had their minds made up for guilty before they began any discussion" and that "[t]hings were said like: 'The officer said this, this, and this. . . and it doesn't take a genius. . . .' " Other jurors said, "The guy is guilty, we are just dragging this out . . . let's get out of here, let's go home."
If the statement was offered to prove the subjective reasoning processes of individual jurors, it is inadmissible. (People v. Hutchinson (1969) 71 Cal.2d 342, 350.) The statement does, however, indicate that several jurors were frustrated with the progress of the deliberations. Although the jurors were instructed to refrain from emphatically stating opinions at the onset of deliberations, such statements do not constitute misconduct if the jurors continue to deliberate as was done here. (People v. Bradford (1997) 15 Cal.4th 1229, 1352.)
The jury deliberated more than an hour on April 11, 2007, recessed for the night, and resumed deliberations the next day. The jury then requested a read back of Officers Williams' testimony, took a noon recess, and returned a guilty verdict at 3:15 p.m. Unlike the situation in People v. Hutchinson, supra, 71 Cal.2d 342, the jurors were not pressured by the bailiff to rush the deliberations and reach a verdict.
The assertion that juror M.P. was coerced by fellow jurors has no factual basis. M.P.'s declaration indicates that she held her ground and insisted that the jury review the evidence. M.P said that she was "talked down to" and that she chastised the foreperson and another juror for "speak[ing] to me like a child." The admissible portion of M.P.'s declaration, i.e., that she was "talked down to," does not establish that M.P. was unable to perform the functions of a juror or coerced to change her vote. (People v. Bradford, supra, 15 Cal.4th at p. 1351.)
M.P.'s statement that "I felt I had been pushed into a corner for so long; I did not want to be there any longer, so I changed my vote" is demonstrative only of her mental processes and the subjective considerations that influenced her verdict. (People v. Duran, supra, 50 Cal.App.4th at pp. 112-113; People v. Peavey (1981) 126 Cal.App.3d 44, 51.) Such statements are inadmissible to impeach a verdict. (In re Hamilton (1999) 20 Cal.4th 273, 294; People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) Evidence Code section 1150 precludes a trial court from considering the mental processes of a juror, why the juror experienced stress, or what verdict the juror was leaning toward before changing his or her vote. (People v. Danks, supra, 32 Cal.4th at p. 302.)
Disagreement between jurors, even if expressed in a rude or hostile manner, does not amount to juror misconduct. In People v. Orchard (1971) 17 Cal.App.3d 568,the jury foreman "stood and angrily chastised [the holdout juror] for 10 to 15 minutes before the other jurors for not keeping an open mind, producing in her feelings of embarrassment, humiliation, and a desire to leave as soon as possible and causing her to vote appellant guilty." (Id., at p. 572.) The Court of Appeal concluded there was no misconduct and that "[j]urors may be expected to disagree during deliberations, even at times in heated fashion." (Id., at p. 574.)
Similarly, in People v. Keenan (1988) 46 Cal.3d 478, a juror pointed at the holdout juror (an elderly woman) in a capital case and said: " 'If you make this all for nothing, if you say we sat here for nothing, I'll kill you and there'll be another defendant out there – it'll be me.'" (Id., at p. 540.) Our Supreme Court concluded that the statement "was not prejudicial misconduct which impeaches the verdict. The outburst . . . was particularly harsh and inappropriate, but as the trial court suggested, no reasonable juror could have taken it literally. Manifestly, the alleged 'death threat' was but an expression of frustration, temper, and strong conviction against the contrary views of another panelist." (Id., at p. 541.)
The same principle applies here. Other jurors may have been rude to M.P., but appear to have been criticizing her view of the evidence rather than attempting to coerce her to change her vote. The trial court reasonably concluded there was no evidence of juror misconduct or that an evidentiary hearing was required. (See e.g, People v. Burgener (2003) 29 Cal.4th 833, 878-879.) "To permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression." (People v. Orchard, supra, 17 Cal.App.3d at p. 573.)
Trial counsel filed a declaration summarizing his phone conversation with juror M.P. The declaration is hearsay, and like M.P.'s declaration, suffers the same fundamental defect. Evidence Code section 1150, subdivision (a) bars admission of evidence of a juror's mental processes on the question of juror misconduct. "Normally, hearsay, is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct." (People v. Hayes (1999) 21 Cal.4th 1211, 1256.)
Unanimous Verdict
Appellant argues that he was denied the right to a unanimous jury because the trial court failed to poll the jurors. After the verdict was read and received by the court clerk, the jury was asked "Ladies and gentlemen of the jury, is this your verdict, so say you one, so say you all?" The jurors acknowledged it was their verdict.
Citing Penal Code section 1163, appellant argues that a criminal defendant has the right to have the jurors individually polled to safeguard his right to a unanimous jury. Appellant, however, did not request that the jurors be polled, and absent such a request, the trial court had no sua sponte duty to individually poll the jurors. (People v. Lessard (1962) 58 Cal.2d 447, 452.)
Penal Code section 1163 provides: When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if anyone answer in the negative, the jury must be sent out for further deliberation." (Emphasis added.)
Appellant's assertion that he was denied the constitutional right to a unanimous jury verdict is without merit. (Ibid.) The failure to poll jurors does not "constitute an error of federal constitutional dimension." (People v. Masajo (1996) 41 Cal.App.4th 1335, 1340.) "We also note that no provision of the California Constitution speaks to a right to have a jury polled. As such, we see no rationale for reversing per se for failure to comply with [Penal Code] section 1163." (Ibid.)
The evidence clearly supported the verdict. Appellant makes no showing that he was denied a unanimous jury or that the verdict was tainted by juror misconduct.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.