Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 150660
Marchiano, P.J.
This is defendant’s second appeal.
A jury convicted defendant Vasega F. Tili of first degree murder with personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).) The trial court sentenced defendant to 50 years to life.
On his first appeal, defendant contended that the trial court had an impermissible ex parte communication with a juror during deliberations, outside the presence of defense counsel, concerning a comment made to the juror by defendant’s brother. We agreed and ordered a limited remand for further hearing. The trial court conducted a hearing, in the presence of counsel, and concluded the juror remained impartial and there was no adverse impact on jury deliberations and no prejudice to defendant.
Defendant contends he was presumptively prejudiced by the absence of counsel at the ex parte communication with the juror, and by the impact of the comment on the juror and on the other jurors. He further contends that nothing on remand showed the presumptive prejudice was dispelled. We disagree because the record shows no effect on defendant’s substantial rights and no reasonable possibility of prejudice. Accordingly, we affirm.
I. BACKGROUND
A. The First Appeal—Facts
We restate the background facts from our prior opinion. (People v. Tili (Mar. 13, 2008, A114978) [nonpub. opn.].)
“After the 2004 ‘Big Game’ between Stanford and Berkeley, there was an alcohol-fueled altercation which ended in Robert Stanford being shot dead. Shortly before the shooting, the victim had been fighting with Alex Tili, defendant’s brother, and had knocked Alex to the ground, causing him to lose consciousness. The victim was shot several times in the head and neck with a.40 handgun. Although several people were present, defendant was implicated in the shooting.
“Defendant presented a vigorous defense, suggesting it was another of his brothers, Junior, who had done the shooting. Junior was dead at the time of the trial. Defendant also called a Vallejo police officer, a longtime family friend, as a character witness.
“The trial lasted 10 days. On the 11th day, June 22, 2006, the jury began to deliberate. The jury deliberated all day on June 26 and June 27. Sometime during the day of June 27, probably the afternoon, the jury submitted a written note to the court asking for the legal definitions of ‘premeditated’ and ‘rash’ ‘for determining 1st or 2nd degree.’ At 3:55 p.m. on June 27, the court convened with the parties and the jury present, and further instructed the jury on the definitions of first and second degree murder. The jury deliberated until 4:15 p.m. and the court recessed until the next day.
“The jury began deliberations at 9:30 a.m. on June 28. At 9:55 a.m., the court received a communication from the bailiff and proceeded to confer with Juror No. 4 in chambers, without counsel present, but on the record. The only people in chambers were the court, Juror No. 4, and the court reporter.
“Juror No. 4 told the court that as she was entering the courthouse that morning, defendant’s ‘whole family’ was standing near the entrance, and Alex Tili said, ‘There’s that bitch that’s sitting on the jury.’ Juror No. 4 was the only person entering the courthouse at the time, and assumed the comment ‘must be directed at me.’ She ‘just walked in as fast as I could.’
“The court asked Juror No. 4 if she had told any other members of the jury about the comment. She replied, ‘Well, they saw I was upset when I walked in, so I did say that the family was out there and I did tell them what happened. And they just said well, it’s understandable because they know most likely what the verdict is after yesterday, so they are going to be upset.’ (Presumably, defendant and his family expected a guilty verdict because of the jury’s note of the previous day asking for further definition of the degrees of murder.)
“The court reminded the juror that she was ‘still in the process of deliberation’ and asked her if she ‘could remain fair and impartial.’ Juror No. 4 replied: ‘Oh, yeah, definitely. And I told them I have no problem continuing. I ask that I please be escorted to my car when it’s over, and that’s it, and that’s if we decide today.’ The court agreed, and thanked the juror for bringing the comment to its attention. The juror then said that the comment ‘just shook me up a little, but I’ll be fine.’ The court asked Juror No. 4 ‘not to mention it any more of the jurors so that they would understand,’ and asked her to return to the jury room and continue her deliberations.
“The proceedings in chambers then concluded.
“The jury resumed deliberations at 10:00 a.m. At 1:15 p.m., the jury foreperson informed the bailiff that the jury had reached a verdict. While counsel gathered in the courtroom in preparation of hearing the verdict, the court informed them for the first time of its ex parte conversation with Juror No. 4.
“At 1:55 p.m., the jury delivered its verdict in open court. The jury convicted defendant of first degree murder and found that he personally and intentionally discharged a firearm.
“At some point, the court provided counsel with a reporter’s transcript of the ex parte proceeding with Juror No. 4.
“Alex Tili was charged with intimidating a juror. (Pen. Code, § 95, subd. (c).) The bailiff investigated the charge by interviewing Alex Tili and Juror No. 4, who both gave written statements. The bailiff prepared a police report including those statements.
“In his report, the bailiff stated that Juror No. 4 told him the comment made her ‘very nervous and afraid’ and that upon entering the jury room she ‘became teary eyed and upset.’ In her written statement, written at 2:15 p.m.—after the verdict—Juror No. 4 added that ‘I have been feeling nervous and afraid all day long.’ In his written statement, Alex Tili denied saying anything to any juror. [Fn. omitted.]
“On August 18, 2006, and after receiving the transcript and the police report, defendant made a motion for a new trial based on the ex parte communication with Juror No. 4, which defense counsel aptly described as a voir dire. Defendant argued that the record did not show that Juror No. 4 could have remained fair and impartial. Defendant also objected that counsel did not have any input into the ex parte voir dire of Juror No. 4 regarding the comment, and no opportunity to voir dire the jurors present when Juror No. 4 told her fellow panel members about the comment—‘to protect the integrity of this verdict which had not yet been arrived at.’
“The trial court found that Juror No. 4 did not have to be removed from the jury because of the emotional impact of the comment, and also found there was ‘no evidence that in reaching the verdict that the jurors reached that they were guided by anything other than the evidence.’
“The court denied the new trial motion and sentenced defendant to 50 years to life.”
B. The First Appeal—Discussion
In A114978, defendant contended that the trial court’s ex parte communication with Juror No. 4 deprived him of his right to have the assistance of counsel at a critical stage of the proceedings. We agreed.
Jury deliberations are a critical stage of the proceedings and a defendant has the constitutional right to the presence of counsel during a trial court’s communication with a juror. (People v. Wright (1990), 52 Cal.3d 367, 402-403 (Wright); see People v. Horton (1995), 11 Cal.4th 1068, 1136-1137 (Horton).) “It is well settled that the trial court should not entertain, let alone initiate, communications with individual jurors except in open court, with prior notification to counsel. [Citation.]” (Wright, supra, at p. 402.)
The Attorney General essentially conceded error. We concluded that the error was governed by the beyond-a-reasonable-doubt standard of Chapman v. California (1967), 386 U.S. 18, 24. (Wright, supra, 52 Cal.3d at p. 403; see Horton, supra, 11 Cal.4th at p. 1137.) We rejected the contention that the error was harmless.
As we noted: “Defendant was deprived of the presence and the assistance of counsel when the trial court met with Juror No. 4 and questioned her about a threatening comment made to her by defendant’s brother on the cusp of the murder verdict. The juror was visibly upset and shared her emotions with at least some of her fellow jurors. Defense counsel never had a chance to participate in either the questioning of Juror No. 4, or the determination of whether she was so intimidated by the comment that she could not be impartial. Neither did counsel have the chance to speak to the jurors who saw that Juror No. 4 was upset by the comment, soon before the jury reached its verdict. It is impossible for us to conclude that the trial judge’s erroneous ex parte communication with the juror is harmless beyond a reasonable doubt.”
We ordered a limited remand (Pen. Code, § 1260; People v. Braxton (2004), 34 Cal.4th 798, 818-819) to enable the court to “conduct a hearing, in the presence of the parties and their counsel, into the issues surrounding the comment made to Juror No. 4, her ability to remain impartial, and whether the witnessing of her emotional state by other jurors might have had any adverse impact on deliberations to the prejudice of defendant.” We advised that the hearing should encompass defendant’s separate claim of jury tampering, on which we expressed no opinion, because it would have similar issues.
C. Proceedings on Remand
On remand, the trial court ordered disclosure of juror information (Code Civ. Proc., § 237). The court also ordered discovery to the defense of any statements elicited by the prosecution during its investigation prior to the hearing.
Defendant filed a memorandum of points and authorities, arguing that there was a presumption of prejudice from (1) the denial of counsel at the ex parte communication with Juror No. 4, and (2) jury tampering, consisting of Alex Tili’s communication with Juror No. 4 outside the courthouse.
The trial court conducted a hearing in the presence of defendant, his counsel, and the district attorney. Juror No. 4 testified. She reviewed a transcript of her ex parte communication with the trial judge and agreed it was accurate. She reviewed her statement to the bailiff and testified she remembered telling him she felt “nervous” all day on the 28th, but did not remember telling the bailiff she was “afraid.”
Juror No. 4 testified that after she heard Alex Tili’s comment and entered the courthouse, she walked into the jury room. The other jurors were waiting for her, the last one to arrive, to resume deliberations. “They” saw that she was “a little upset.” “They” asked her what was wrong, and she told them what had happened.
Juror No. 4 only remembered two jurors, who were seated near her, responding to her. She did not believe the other jurors heard her say what had happened. She did not remember the names of the responding jurors. The responding jurors said something to the effect that the comment was understandable “based on what had happened the day before”—presumably the question to the court showing the jury was undecided only as to the degree of murder—and “that was pretty much it.” The responding jurors “didn’t think much of it, if anything. If anything, they were just consoling me and saying based on what had happened the day before, it’s understandable the family would be upset and that was it.” She did not speak to the responding jurors for very long.
At one point, Juror No 4. testified that two jurors “really responded” to her, and a third “engage[ed] in conversation.”
No deliberations occurred that morning before Juror No. 4 was taken to see the trial judge. When Juror No. 4 went back to the jury room, she did not “tear up” or cry, and said nothing about the Alex Tili comment to the other jurors at any time. No juror mentioned the comment.
Between 10:00 a.m., when Juror No. 4 returned to the jury room, and 1:15 p.m., when the jury announced it had reached a verdict, no juror stated that defendant was not the person who had committed the crime. To the best of Juror No. 4’s recollection, there were two or three ballots within that time frame. Juror No. 4 could not remember the breakdown of the voting, but testified, “We were unanimous... on whether or not [defendant] was guilty, but we hadn’t actually determined whether it was going to be based on the first or second degree.”
The trial court noted that no manslaughter instructions were given to the jury—the jurors’ verdict options were first degree murder, second degree murder, or not guilty.
At the hearing, both parties cross-examined Juror No. 4; defendant cross-examined her at length. The trial court offered the parties the opportunity to speak to other jurors. The People declined. Defendant also declined, citing the People’s burden of proof.
After oral argument, the trial court ruled as follows:
“[T]he issue is whether what occurred to [Juror No. 4] outside the courtroom... on the cusp of the verdict overcomes the presumption of prejudice whether it’s characterized as juror misconduct [sic: ‘jury tampering’] or whether it’s characterized [as] the denial of the assistance of counsel at a critical stage, and whether there is any reasonable doubt as to whether the conduct [on] the courthouse steps or the perception of that conduct and the communication by [Juror No. 4] to the other jurors, and [the] mental processes of [Juror No. 4], could have kept at least one juror from voting for a first degree verdict.... Given the testimony that the condition of the jury room at that time... was that the issue of identification had already been determined by the jury and so the only issue was between first and second degree, I do find beyond a reasonable doubt that Juror No. 4 did remain impartial and that the witnessing of her emotional state by other jurors had no adverse impact on deliberations to the prejudice of the defendant....”
The trial court rearraigned defendant and resentenced him to 50 years to life.
II. DISCUSSION
Defendant argues that a presumption of prejudice attaches to both the denial of counsel at a critical stage of the proceedings (the trial court’s ex parte communication with Juror No. 4) and the jury tampering (Alex Tili’s comment to the juror).
Defendant seems to argue both “jury tampering” and “juror misconduct.” He concedes the two evoke a similar analysis. “Juror misconduct” can have pejorative connotations. We prefer to consider this a case of jury tampering. Juror No. 4 did nothing wrong. This case involves an external agent, Alex Tili, intruding into the jury’s deliberative universe by making his comment directed at Juror No. 4.
We agree there is a presumption of prejudice regarding both types of error. (See Horton, supra, 11 Cal.4th at pp. 1135-1137 [right to counsel]; In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton) [jury tampering].)
But the presumption of prejudice is rebuttable. In the case of denial of the right to counsel, “[o]nly the most compelling showing” of no effect on defendant’s substantial rights “will overcome the presumption.” (Horton, supra, 11 Cal.4th at p. 1137.)
In the case of jury tampering, the presumption is rebutted “if the entire record..., including the nature of the [tampering], 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. [Citations.]” (Hamilton, supra, 20 Cal.4th at p. 296.) We independently determine whether there is a reasonable possibility of prejudice. (People v. Harris (2008), 43 Cal.4th 1269, 1303-1304.)
Despite the somewhat different standards for rebuttal of the presumption, we may employ the same analysis of the facts with regard to the denial of counsel and jury tampering. The crux of the issue is whether the comment affected Juror No. 4’s partiality, or whether the other jurors’ witnessing of Juror No. 4’s emotional state after the comment had an adverse impact on deliberations. We conclude the record shows compelling evidence there was no impact on defendant’s substantial rights, and there is no reasonable possibility of prejudice to defendant.
The trial court’s remand hearing enabled defense counsel to be present for Juror No. 4’s testimony regarding the comment and its effect on her emotional state and on her ability to properly function as a juror, as well as any impact on the other jurors. Defense counsel was able to observe her demeanor. Counsel was able to, and did, examine Juror No. 4 at considerable length.
Juror No. 4 ratified her initial statement to the trial court that she could “definitely” remain impartial in the wake of the comment, and that she was just “sh[aken] up a little,” but would “be fine.” She clarified that only two jurors, the ones seated near her in the jury room, actually responded to her explanation of why she was “a little upset.” These jurors felt that defendant’s family’s response was understandable, given that the jury had obviously reached a murder verdict and was left only to determine the issue of degree. These jurors “didn’t think much” of the comment or, by clear implication, any effect on Juror No. 4.
Juror No. 4 was not crying when she returned to the jury room after speaking to the trial judge, and heeded the court’s admonition to speak no further about the comment. At the time the comment was made and the two jurors voiced their response to Juror No. 4, the jury had already decided defendant was guilty of murder and were only deliberating on the matter of first versus second degree.
These facts constitute compelling evidence that no substantial right of defendant was affected by counsel’s absence from the ex parte communication—an absence cured by the remand hearing—and that there is no reasonable possibility of prejudice to defendant.
We reject defendant’s contention that the trial court should have examined other jurors. This is not an extreme case. Juror No. 4 testified as to the limited scope of the impact of the comment on the jury—only two jurors even responded to her explanation, and did not think much of it. Moreover, by this point the jury had already determined guilt. Under all the circumstances, the record does not support the need to examine the other jurors.
We find the error in this case to be harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Margulies, J., Dondero, J.