Opinion
D069091
04-04-2017
THE PEOPLE, Plaintiff and Appellant, v. LEE M. TRAHAN, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN313268-1) APPEALS from a judgment and orders of the Superior Court of San Diego County, Harry M. Elias, Judge. Judgment and orders conditionally reversed, with directions. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Appellant.
A jury convicted defendant Lee M. Trahan of assault on a child causing death and manslaughter in connection with the death of his six-week-old twin daughter Willow. (Pen. Code, §§ 273ab, subd. (a), 192, subd. (a).) The jury found his wife, Jessica Trahan, guilty of misdemeanor child abuse (§ 273a, subd. (b)). The trial court sentenced Lee to summary probation on the child abuse homicide conviction and to 11 years in prison on the manslaughter conviction.
Undesignated statutory references are to the Penal Code.
We hereafter refer to this offense as child abuse homicide. (See People v. Wyatt (2010) 48 Cal.4th 776, 779.)
We will refer to Lee Trahan and Jessica Trahan by their first names for convenience. Jessica is not a party to this appeal.
Lee contends the trial court erred by failing to instruct the jury sua sponte that, because there was evidence Jessica was an accomplice to his alleged crimes, her testimony requires corroboration and should be viewed with suspicion. We find any error in this regard harmless.
Lee also raises two claims of error with respect to the trial court's rulings on his posttrial motions arising from alleged juror misconduct. First, he argues that because he made a prima facie showing of juror misconduct, the trial court should have held a hearing to address the potential disclosure of personal juror identifying information for all jurors. He contends it was error for the court to hold the hearing as to only one juror. Second, he argues the trial court erred by denying his new trial motion based on the finding there was no prejudicial juror misconduct. We conclude Lee made a prima facie showing of juror misconduct sufficient to entitle him to a hearing to determine whether to disclose all jurors' personal identifying information. The trial court is directed to hold such a hearing on remand. We find no error in the trial court's denial of Lee's new trial motion based on the record before it at the time. However, we conditionally reverse the judgment with respect to conviction and the trial court's ruling on the new trial motion pending the outcome of the evidentiary hearing on Lee's motion to disclose.
The People also appeal. They contend the trial court erred by sentencing Lee to 11 years on the manslaughter count instead of the 25 years to life required by the child abuse homicide statute. We agree the trial court erred, reverse the judgment with respect to sentence, and remand for resentencing depending on the outcome of the further proceedings contemplated in our disposition.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
A. Willow's Premature Birth
Willow and her twin brother K.T. were delivered by caesarean section about six weeks prematurely in mid-March 2012. The delivering doctor described the procedure as uncomplicated and observed that Willow had no intracranial bleeding. The twins had healthy results on their Apgar newborn health assessments. They were given vitamin K at birth to prevent internal bleeding. The twins were transferred to the neonatal intensive care unit (NICU) at Balboa Naval Hospital (Balboa), where they were monitored until their discharge about 10 days later.
Willow's pediatrician, Dr. Trevia Scanlan, saw the twins for a "well baby" check a few days later. Their stay at the NICU had been uneventful and there was nothing of concern in their medical records. They were small but healthy, and were gaining weight appropriately.
Dr. Scanlan examined the twins again about one week later. They were feeding on breast milk and a fortified formula that helps prevent bone disease. The twins appeared well, were in no distress, and had no significant health risks or factors. They were eating on schedule, but Jessica told Dr. Scanlan that Willow was sometimes fussy. Dr. Scanlan advised this was normal and that it might be caused by acid reflux. She told the parents to call her if they felt overwhelmed.
B. Willow's Unexplained Bruises
On April 9, Jessica took Willow to the emergency room at Balboa because Willow had a bruise on her abdomen. Dr. Sarah Villarroel, a child abuse pediatrician, examined Willow the following day. Willow had a large bruise on her mid- to upper abdomen, and a small linear bruise on her left inner thigh. The bruises concerned Dr. Villarroel because "any bruising in a nonambulatory, nonmobile child raises concern that someone caused that injury without an explanation of some kind of accident that would have caused it." An ultrasound disclosed no underlying injury. Lab testing disclosed no blood clotting or other metabolic issues. Dr. Villarroel ruled out any bowel or liver issues as the cause of the bruise. A CT scan of Willow's head showed no brain injury, swelling, fluid collection, bleeding, or skull fracture. CT scans of Willow's abdomen and pelvis were also normal. Dr. Villarroel could not identify any "medical disease, deficiency or anything . . . that was accounting for [Willow's] injuries."
The parents reported no family history of easy bruising. Jessica asked Dr. Villarroel if Willow's bruising could have been caused by the buckle on Willow's car seat, as the twins were in their car seats longer than usual on the day of the bruising. Dr. Villarroel examined Willow in the car seat and observed that the straps and buckle overlaid Willow's injuries, but not perfectly (the bruise was larger). Dr. Villarroel felt that something must have struck the buckle to cause the bruise, as she had never seen a child sustain this type of injury from a car seat alone. She asked the parents if something else happened to cause the bruising. They said no.
Hospital staff reported the incident to child welfare services (commonly and hereafter referred to as CPS). Willow was discharged on April 11.
The following day, CPS caseworker April Karch visited the Trahans' home unannounced. She examined Willow's bruise, and spoke to and observed the Trahans. She also interviewed family members, doctors, police officers, and social workers. Although Karch noted in her report that she "found nothing suspicious for abuse," she kept the Trahans' CPS case open because "in the back of [her] mind there's always the unexplained bruise to an infant. So it wasn't a done deal."
On April 13, Jessica took Willow to see Dr. Scanlan as a follow-up to the hospital visit. The bruise seemed to be fading and Willow was otherwise doing well. After looking at the hospital records, Dr. Scanlan concluded the car seat buckle caused the bruise. Even though she had never seen a bruise of that type caused in that manner, she could not think of any other explanation.
Dr. Scanlan saw both twins for a well baby check on April 18. The bruise on Willow's abdomen was almost gone. Other than a little more gas and spit-up, both twins were doing well.
C. Text Messages About an April 16 Incident
Something occurred in the Trahans' home in the early morning hours of April 16 that led to the following exchange of text messages between Lee and Jessica:
"[Jessica:] I know [you] love our babies. And I should have took [sic] them downstairs when they were crying. You have to compose yourself when waking from sleep to handle the babies so that you don't snap. I love you and don't beat yourself up over this. We still love you[.]"
"[Lee:] I can never forgive myself I just want to break down babe[.] [¶] I know I didn't hit her hard but I still did it and now I have to live with it[.] [¶] I am sorry for what I have done . . . I feel like the worst dad in the world I just want to start this day over[.]"
"[Jessica:] It happe[ns] to everyone baby[.]"
"[Lee:] No I seriously doubt it[.] [¶] I will get over it . . . it will just take time on my part[.]"
"[Jessica:] We are all tired. We have[]to just learn to deal with it[.]"
"[Lee:] [I] know I just snapped[.] It will never happen again[.]"
"[Jessica:] I hope not[.]"
"[Lee:] You had to say that huh[?]"
"[Jessica:] I have to protect them too [L]ee, I don't want that to happen again, I don't want to witness that again, I don't want to see that side of you again as their dad."
"[Lee:] I am just a shitty everything . . . I don't give a shit anymore[.] [¶] I just want to stop talking about it . . . Try to have. A good day. [¶] I just keep thinking if you think differently about me[.] [¶] Your [sic] just not going to talk to me all day?"
"[Jessica:] Im [sic] just giving you your space[.]"
"[Lee:] Fine[.] [¶] You wanna ignore me I can do the same shit right back . . . see if you get my help[.]"
"[Jessica:] I'm not ignoring you at All, just figured you were busy[.]"
"[Lee:] I don't know I am just so confused I can't focus on anything[.] [¶] I just want to make things right and I can't[.] [¶] I hate feeling like this[.] [¶] . . . [¶]
"[Lee:] I mean how do you feel about me[?] I feel so shitty[.] [¶] How could I do that[?] I just think it was because I just woke up to her crying and it was the first thing I did . . . I was like why did this happen[?]"
"[Jessica:] I don't know[.] [¶] Like I said before sometimes [it] gets the best of us and we just have to control it and deal with it. I don't think bad of you. I guess I am more shocked about it[.]"
"[Lee:] I love my kids to death I hold them and want to cry because I am so happy . . . I always want to be there with them and watch them as they grow . . . I just don't know why that happened[.]"
"[Jessica:] I just keep thinking if you had actually hurt her[.] They would have taken them all from us[.]"
"[Lee:] I know and I couldn't live with that[.] [¶] I wasn't hitting her to hurt her it was like . . . I don't know[.]"
"[Jessica:] I know[.]"
"[Lee:] I just want to move on from my mistake and also learn from it[.]"
D. Text Messages About an April 24 Incident
Another incident occurred in the Trahans' home on April 24, which led to the following exchange of text messages between Lee and Jessica:
"[Jessica:] Willow looks beat up."
"[Lee:] Damn man I didn't think she hit that hard[.] [¶] I went [to] check on her when I left and it looked better[.] [¶] I feel like shit for that[.]"
"[Jessica:] It looks bad[.]"
"[Lee:] Send me a pic of it[.]"
"[Jessica:] She doesn't want to eat[.]"
"[Lee:] Well fuck should we take her in[?]"
"[Jessica:] I can't take her in like this[.] [¶] [Photo sent.] [¶] Um yeah I'm not brin[g]ing her like this[.]"
"[Lee:] Fuck man . . . you already know they will pull some shit[.] [¶] Man I feel horriable [sic] . . . I feel like the shittiest dad[.] [¶] Probably her jaws hurt[.] [¶] I mean I know she didn't hit hard she just bruised easy but fuck[.] [¶] Is she not eating at all[?]"
"[Jessica:] She only had like not even an ounce[.]"
"[Lee:] Thing is she ate three right after[.] [¶] I just can't believe it did that to her face[.]"
"[Jessica:] I'm gonna give her some Tylenol[.]"
"[Lee:] Man this is ruining my day[.] [¶] Do we have children's [t]ylenol[?]"
"[Jessica:] I have some old bottle."
"[Lee:] Okay[.] [¶] . . . [¶]
"[Jessica:] Willow ate good this time[.] [¶] . . . [¶]
[Lee:] I can't believe I was that careless[.] [¶] That's good how is she[?]"
"[Jessica:] Okay[.] [¶] She seems better[.] [¶] It was an accident[.] [¶] . . . [¶] We just have to be careful[,] I would have to cancel any appts if she had some[.]"
"[Lee:] She dropped her pacifier when I was leaving her room and I picked it up and stepped forward at the same time and she hit . . . I just wasn't paying attention[.]"
"[Jessica:] I know it sucked[.]"
"[Lee:] No shit when you sent a pic my heart dropped I was like damn if she is hurt we couldn't bring her . . . that's messed up it shouldn't be [that] way[.]"
"[Jessica:] She knows u didn't mean it and she still loves u ;)"
"[Lee:] I just felt so bad . . . I still do[.]"
"[Jessica:] :) I know[.]"
E. Jessica Calls Dr. Scanlan's Office on April 26
On April 26, Jessica called Dr. Scanlan's office and spoke with a nurse. Jessica reported that Willow had vomited during her last three feedings after taking only one ounce of formula. Jessica asked for a prescription to address the twins' previously discussed acid reflux. She did not mention any accidents involving Willow, nor did she ask if she should bring Willow in for medical care. Dr. Scanlan testified that if she had known Willow sustained serious facial and head bruising, she would have told Jessica to dial 911 or to take Willow to the emergency room.
F. Willow's Death
About 4:30 a.m. on April 27, Escondido Police Officer Beverly Holtz was dispatched to the Trahans' residence in response to a 911 call reporting that an infant had stopped breathing. When Officer Holtz arrived, Lee was performing CPR on Willow on the floor of the upstairs master bedroom. Willow "had a little bit of color in her cheeks," but was not breathing and did not move. Officer Holtz took over CPR until medics arrived about four minutes later. Medics transported Willow to Palomar Medical Center (Palomar) in Escondido.
Willow regained a pulse at Palomar and was transported by Life Flight helicopter to Rady Children's Hospital (Rady). Upon arrival, Willow was in critical condition. She was intubated and not breathing on her own. She had bruising on the left side of her face, from the temple area to the jaw line, and a small bruise on her right cheekbone near the eye. A CT scan revealed she had a skull fracture running 3.5 centimeters from the left ear to the crown of the head; hemorrhaging around the brain; swelling and bruising on both sides of the brain; retinal hemorrhages in her left eye; and apparent compression fractures in three of her thoracic vertebrae.
K.T. was given a skeletal scan to check for injuries. He had a fracture to a small bone between his left thumb and index finger. A follow-up scan a few weeks later revealed a rib fracture.
Officer Holtz was called to Rady when doctors observed Willow's bruising. Officer Holtz learned there was an open CPS case on the Trahans. After learning from doctors that Willow's injuries were critical, Officer Holtz spoke to Jessica. Jessica asked, "Do you think Lee is abusing Willow? I have to know because I have to protect my other children." Officer Holtz asked Jessica about her relationship with Lee. Jessica responded that Lee was "a hothead," but she denied he ever hit her or the children. Lee allowed law enforcement to download the contents of his cell phone.
Jessica also asked one of Willow's treating physicians at Rady, child abuse and neglect pediatrician Dr. Premi Suresh, whether Willow's injuries were from a "shaken baby." Dr. Suresh responded that Willow had a number of unexplained injuries, and asked Jessica why she wondered about that. Jessica responded, "I know that this didn't just happen. . . . I'm not stupid."
Rady doctors monitored and treated Willow for the next 10 days. CT scans of her brain showed continued swelling and increased brain hemorrhages. Willow died on May 7.
G. Willow's Autopsy
Clinical and forensic pathologist Dr. Craig Nelson, then a Deputy Medical Examiner for San Diego County, performed an autopsy on Willow's body beginning May 9. After examining Willow's body, reviewing her medical records, taking and analyzing tissue samples, and consulting with other medical examiners and a forensic anthropologist, Dr. Nelson concluded Willow's cause of death was blunt force trauma to the head, and her manner of death was homicide.
Dr. Nelson noted Willow's April 10 CT scan and test results were all normal, yet her April 27 CT scan and the autopsy revealed a skull fracture, fractured vertebrae, subdural bleeding (i.e., bleeding between the skull and brain), subarachnoid bleeding (i.e., bleeding under the layer of blood vessels covering the brain), and bruises on the brain itself. He opined that Willow's head trauma resulted from the application of "a great degree of force" comparable to that resulting from a serious car accident, a fall from a great height, or a television falling on a child's head. He ruled out any birth-related conditions. Dr. Nelson believed Willow's brain injuries were so serious that they probably occurred hours—not days—before Willow's heart and breathing stopped on April 27.
Regarding Willow's skull and vertebrae fractures, Dr. Nelson ruled out any metabolic bone disorder or other conditions that would have caused her to have weaker bones. Microscopic examination of four of Willow's thoracic vertebrae confirmed three of them had sustained compression fractures (the fourth had not), which can be caused by blows to the head or by a folding of the spine. The spinal fractures would have had a cause separate from Willow's head injuries.
Dr. Nelson also observed a hemorrhage in Willow's left eye, and determined she was septic (i.e., she had bacteria in her blood, likely from an infection caused by an IV line administered in the hospital).
Dr. Nelson concluded the "constellation" of Willow's injuries "indicates homicide. There's no way we can think that all of these were simply an accident." He expressly ruled out a hypothetical in which Lee was carrying Willow and accidentally caused her head to strike a doorjamb by stumbling while picking up a dropped pacifier. Such a scenario would not account for the multiple locations or extent of her head injuries, nor would it account for her vertebral compression fractures.
H. Search Warrants for the Trahans' Electronics
A few weeks after Dr. Nelson completed Willow's autopsy, law enforcement executed a search warrant on the Trahans and seized three computers (Lee's laptop, and Jessica's laptop and tower) and two cell phones (Lee's iPhone and Jessica's iPhone).
Mark Luque, a computer forensic examiner employed by the Naval Criminal Investigative Service and assigned to the San Diego Regional Computer Forensic Laboratory managed by the FBI, analyzed the seized computers and phones. Luque located a backup of Jessica's iPhone on her tower computer and a backup of Lee's iPhone on his laptop. Luque compared text messages on the iPhones with those in the backup files and determined some messages—including texts on April 16 and 24—had been deleted from the cell phones.
Luque identified approximately 3,800 text messages sent between Lee and Jessica from March 14 to August 15, 2012. Of those, 38 (or 1 percent) had been deleted from Lee's iPhone, but were recovered from the backup files. Of those 38, 14 were deleted in April.
The backup of Jessica's iPhone had a deleted bookmark for a babycenter.com chat forum titled, "How can I help my husband tolerate the sound of our crying baby?" Lee's computer had accessed an "answers.yahoo.com" forum addressing the query, "Is it normal to get mad about your crying and screaming baby?"
I. Arrest and Charges
Lee was arrested on December 5, 2012. As to Willow, he was charged with one count of child abuse homicide (§ 273ab, subd. (a)) and murder (§ 187, subd. (a)). As to K.T., Lee was charged with felony child abuse (§ 273a, subd. (a)), with two great bodily injury enhancements (§§ 1192.7, subd. (c)(8), 12022.7, subd. (d)).
Section 273ab, subdivision (a) states in part: "Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."
Jessica was arrested on December 19 and charged with one count of felony child abuse (§ 273a, subd. (a)) as to Willow.
J. Medical Expert Testimony
In addition to Dr. Nelson's testimony about the autopsy, the prosecution introduced extensive medical expert testimony regarding the nature of Willow's injuries and the cause of her death. The prosecution experts agreed Willow's injuries were inflicted. Her injuries were so severe that she would have displayed symptoms within minutes to hours (not days), and her condition would not have waxed and waned. The experts found no evidence Willow or K.T. suffered from any metabolic condition that made their bones brittle and more susceptible to breaking. Nor did they find any evidence that Willow's intracranial bleeding dated back to injuries sustained during childbirth. The experts concluded Willow's injuries could not all have been inflicted by her head accidentally striking a doorjamb.
The People's additional medical experts were Dr. Suresh and Dr. Jerry Dwek, a radiologist and pediatric radiologist at Rady.
II. Defense Evidence
A. Family Background
Lee was raised in Louisiana, joined the Marines after high school in 2006, and was eventually stationed in San Diego. He met Jessica in 2010 when he was 23 years old. She had a three-year-old daughter, E.V., from a previous marriage that ended in 2009. Jessica and her ex-husband shared equal custody of E.V. Jessica and Lee got married in August 2010.
Lee loved E.V., and he and Jessica wanted to have children together. Jessica quickly became pregnant twice, but miscarried on both occasions. After pursuing fertility treatment, she became pregnant with Willow and K.T.
B. Willow's Unexplained Bruises
Lee's parents were visiting when Jessica discovered discoloration on Willow's abdomen on April 9. Neither Lee nor his parents had noticed it. Lee's father thought it was nothing, but Jessica and Lee decided to take Willow to Balboa. Lee testified he felt that the doctors there gave them "the runaround."
C. Text Messages About the April 16 Incident
Lee and Jessica offered an explanation of what led to their April 16 text message exchange. Lee had taken about 30 days of family leave when the twins were born and was due back at work on April 16. E.V. had a nightmare the night of April 15 and went to the master bedroom to sleep between Jessica and Lee. Jessica got up about 3:00 a.m. to feed the twins. When she brought the twins into the master bedroom, Willow cried. This startled Lee, and his elbow flew back and hit E.V. in the chest. Lee yelled, "What the fuck? What the fuck are you doing in here with the kids? I thought we had agreed to bring the kids downstairs." Lee and Jessica argued, then she took the twins downstairs.
Jessica was mad at Lee. The next morning she sent him the text about composing himself when awakening. She used the term "the babies" to refer to all three children, not just the twins. When she texted, "So that you don't snap," she was referring to Lee snapping at her. When she wrote that she did not want the children to "see that side of [Lee] as their dad," she meant she did not want the children to see Lee yell at her. Lee was angry at himself for losing his temper, and he felt bad about elbowing E.V. and for how he had treated Jessica.
A detective had testified during the prosecution case that her review of Lee and Jessica's text exchanges indicated Jessica generally did not include E.V. in her references to "the babies."
D. Text Messages About the April 24 Incident
Lee and Jessica also offered an explanation of what led to their April 24 exchange of text messages. Lee handled the 3:00 a.m. feeding that morning. He got K.T. from the nursery, fed him downstairs, and then put him back in his crib. Then he picked up Willow, grabbed her pacifier from her crib, and put it in her mouth. He was carrying her with his right arm; her head was in the crook of his elbow and her bottom was in his hand. As he started walking toward the door to exit the nursery, Willow's pacifier fell to the floor. Lee stooped down to pick it up, but his legs were sore because he had just recently resumed exercising. Willow began to roll out of his arm. Lee stepped forward to regain his grip on her, and they struck the doorjamb. Willow started crying. Lee examined her, noticed her ear was red, and gave her the pacifier and comforted her. Lee woke Jessica and told her what happened. They examined Willow, "saw that it was nothing," and agreed to monitor her. Jessica told Lee he needed to be more careful. Jessica went back to sleep, and Lee fed and changed Willow without incident.
When Jessica awoke later in the morning after Lee had gone to work, she saw bruising on Willow's face. She then sent Lee the text message that started the exchange. Lee and Jessica testified they agreed not to take Willow in for treatment because Lee had said she fed fine after the incident, and because they did not want CPS to become involved.
E. Jessica Calls Dr. Scanlan's Office
On April 25, Willow followed her normal pattern of sometimes eating, sometimes not. The next day, she vomited after her feedings and started dry heaving. Jessica took a video of Willow vomiting and called Dr. Scanlan's office to request a prescription acid reflex medication for both twins. Jessica did not mention the April 24 doorjamb incident during her call with Dr. Scanlan's office because she did not think it was connected to Willow's vomiting.
F. Willow's Death
Lee got up at about 3:00 a.m. on April 27 to feed the twins. After tending to K.T., Lee took Willow downstairs to feed and change her. She ate only about one ounce. Lee burped her and tried to feed her again, but she would not eat. Lee heard Willow soil herself, so he began to change her diaper. When he removed it, he noticed Willow's legs looked oddly white. After Lee finished cleaning up Willow, her legs "were lifeless." He put water on her legs to stimulate her, and put his head to her chest. He only heard two or three heartbeats. He ran upstairs with her and told Jessica that Willow was not breathing. He put his head to her chest again but did not hear a heartbeat. He started CPR while Jessica called 911. Officer Holtz arrived and took over CPR. Willow was transported to Palomar, and then to Rady.
Lee and Jessica spoke with law enforcement and CPS at Rady. Lee stated he had no idea what had happened. He reported the doorjamb incident, shared text messages and a photo of Willow's bruised face, and gave his phone to a detective so she could download its contents.
Jessica testified she told police Lee was a "hothead," but claimed this did not mean he had a bad temper; rather, he was just "a typical male Marine."
G. The Trahans' Electronics
Lee testified he did not specifically recall deleting any text messages from his phone, but acknowledged he "very well could have." He further acknowledged the April 16 text messages "more than likely" were deleted because he "didn't want CPS to ever find [them]." He claimed the texts related to E.V., not Willow.
Jessica testified she posted often on baby website forums. She might have posted on the babycenter.com forum "How can I help my husband tolerate the sound of our crying baby," which might have caused it to bookmark on her phone. She also belonged to the answers.yahoo.com forum, and might have accessed it from Lee's laptop, which she said was the "family computer." Lee testified he did not "remember ever doing any research remotely related to" crying babies.
H. Medical Expert Testimony
Lee presented extensive medical expert testimony disputing the prosecution experts' conclusion that Willow died from inflicted blunt force trauma. The defense asserted Willow's broken bones were the result of a metabolic bone condition, such as rickets (a vitamin D deficiency), which caused her bones to be brittle. Several risk factors for inadequate bone mineralization were present: Willow was a twin, she was born prematurely, Jessica had two prior miscarriages, and Jessica took antacids and medications during pregnancy. The defense maintained Willow's (and K.T.'s) medical imaging showed signs of inadequate bone mineralization.
The defense presented four medical experts. Dr. Patrick Barnes is a radiologist, neuroradiologist, and professor at Stanford University School of Medicine. He was not paid to testify, but was reimbursed for his travel expenses and used his cases for research. Dr. Jan Leestma is a pathologist and neuropathologist who previously served as the chief of neuropathology at Children's Memorial Hospital in Chicago. Dr. Douglas Benson is an orthopedic surgeon with more than 20 years' experience in private practice. He was not paid for his testimony or travel expenses. Dr. Robert Rothfeder practiced emergency medicine in a hospital setting for nearly 30 years, followed by approximately seven years of office practice treating trauma patients.
The defense identified several nontrauma-related potential causes of Willow's brain injuries. For example, premature babies are prone to bleeding or clotting problems, which can block veins and cause bleeding in the brain or lead to a stroke. Or Willow might have had a seizure or experienced apnea, which leads to a lack of oxygen to the brain, which, in turn, can stop a baby's heart and is a major cause of subdural and intracerebral hemorrhages. Or Willow's intracranial hemorrhaging could have resulted from a re-bleed of injuries sustained during childbirth.
The defense disputed that Willow contracted sepsis during her hospitalization, instead opining she suffered from a preexisting infection that contributed to her condition.
The defense also questioned the medical treatment Willow received. For example, the defense asserted Willow was improperly intubated when she was transported from the Trahans' home to the hospital, which caused air to enter her stomach instead of her lungs. The defense further asserted Willow should have been imaged with an MRI, not just a CT scan. The lack of an MRI precluded a conclusive determination of the cause of her brain injuries. The defense also asserted Willow did not undergo sufficient workups to assess bone fragility disorders or bleeding/clotting conditions.
I. Character Witnesses
Several defense witnesses testified about Lee's character. A forensic interviewer at Palomar who interviewed E.V. after Willow's death relayed that E.V. said Lee (whom she generally referred to as "mom's boyfriend") did not "ever get mad at anyone." Lee's father testified Lee is a great parent. The father never saw any behavior that concerned him. E.V.'s father testified he got to know Lee when Lee and Jessica were dating. Lee interacted well with E.V., was a good father, and was a truthful and honest person. Three of Lee's fellow Marines testified that he was honest, even-tempered, nonviolent, and able to cope with stress.
Lee's father also testified that one of the detectives told him during the course of the investigation that she had spoken with the medical examiner conducting Willow's autopsy and expected it would conclude favorably to Lee. The detective testified she never said that, but acknowledged she said there were differences of opinion about the case.
III. Prosecution Rebuttal Evidence
The forensic interviewer testified on rebuttal that E.V. never mentioned an incident where Lee elbowed or hit her.
The prosecution called two additional medical experts, and recalled Drs. Nelson and Suresh. The prosecution experts reiterated that Willow's April 10 CT scans showed she did not have a fractured skull or subdural hemorrhaging on that date; Lee's doorjamb explanation did not account for all of Willow's head or spinal injuries; and Willow's injuries were so serious that she would not have waxed and waned for three days.
The new rebuttal experts were Dr. Terry Haddix, a forensic pathologist and neuropathologist who works at a private crime lab in the Bay Area; and Dr. Paritosh Khanna, a pediatric neuroradiologist at Rady.
Dr. Suresh explained she did not give Willow an MRI because Willow's condition was not stable enough to move her from intensive care. The CT scan was sufficient for purposes of treating Willow, and an autopsy was more comprehensive than an MRI for postmortem purposes.
Dr. Nelson testified that he examined Willow's bones during her autopsy and they were not brittle. Nor would a metabolic bone disease account for the compression fractures to her vertebrae. Dr. Nelson examined the veins in Willow's brain and did not see any indications of clotting or a seizure. Dr. Nelson also explained that if Willow had been improperly intubated, she would not have survived as long as she did. In any event, she would have died even if she had been properly intubated.
Finally, the prosecution experts asserted Willow did not have sepsis when she was admitted on April 27, nor did she die from it.
IV. Trial, Verdict, and Sentencing
Lee and Jessica were tried jointly. The jury heard testimony from 30 witnesses over 13 court days. The trial court allowed jurors to submit proposed questions in writing, which jurors did 48 times.
The jury found Lee guilty of child abuse homicide (§ 273ab, subd. (a)); not guilty of murder, but guilty of the lesser included offense of manslaughter (§ 192, subd. (a)); and not guilty of child abuse (§ 273a, subds. (a)-(b)) as to K.T.
The trial court sentenced Lee to summary probation on the child abuse homicide count, and to 11 years in prison on the manslaughter account. We discuss sentencing in greater detail below in connection with the People's appeal.
DISCUSSION
I. Accomplice Instruction
Lee contends that because there was evidence Jessica was an accomplice to the crimes with which he was charged, the trial court erred prejudicially by not instructing the jury sua sponte that her testimony should be viewed with suspicion and must be corroborated. The Attorney General counters that Jessica is not an accomplice because she was not charged with the same offenses as Lee. We need not determine whether Jessica was an accomplice because even assuming she was, any error was harmless.
" 'The general rule is that the testimony of all witnesses is to be judged by the same legal standard. In the case of testimony by one who might be an accomplice, however, the law provides two safeguards. The jury is instructed to view with caution testimony of an accomplice that tends to incriminate the defendant. It is also told that it cannot convict a defendant on the testimony of an accomplice alone.' " (People v. Williams (2010) 49 Cal.4th 405, 455 (Williams); see § 1111; CALCRIM No. 334.) " '[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices.' " (People v. Tobias (2001) 25 Cal.4th 327, 331.)
Section 1111 states: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
"A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' [Citation.] The evidence 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (People v. Lewis (2001) 26 Cal.4th 334, 370.) It is only "in the absence of sufficient corroboration" that we "submit the omission of accomplice instructions to the harmless error analysis for state law error under People v. Watson, [(1956)] 46 Cal.2d [818,] 836." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 304 (Gonzalez); see Williams, supra, 49 Cal.4th at p. 456 ["Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error"]; People v. Felton (2004) 122 Cal.App.4th 260, 273-274.)
Lee asserts the failure to give the accomplice instruction was federal constitutional error. We need not address this assertion because we are bound by the California Supreme Court's contrary holdings in Gonzalez and Williams. (See People v. Battle (2011) 198 Cal.App.4th 50, 68, fn. 3, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The absence of an accomplice instruction may also be deemed nonprejudicial where the jury is otherwise instructed how to consider witness credibility. (People v. Lewis, supra, 26 Cal.4th at p. 371.)
Any failure to instruct the jury here regarding the limitations on accomplice testimony was harmless in light of the fact Jessica's testimony was corroborated and the jury was otherwise instructed on evaluating witness credibility. As to corroboration, several text messages supported the reasonable inference that Lee was abusing Willow. He acknowledged in text messages and at trial that he caused the bruising to Willow's face on April 24. The jury was not required to accept his doorjamb explanation, which several prosecution experts refuted. Lee also acknowledged at trial that Willow was in his care when she stopped breathing on April 27. Medical experts opined that occurred as a result of recently inflicted trauma. Finally, forensic analysis of Lee's iPhone and computer revealed that he had deleted incriminating text messages and his computer had been used to visit an online forum that discussed getting mad at crying babies. Even without the context provided by Jessica's testimony, this evidence supports a reasonable inference that Lee inflicted the trauma that caused Willow's death.
Lee acknowledges in his reply brief that "[t]he reasonable inference from [the April 16 text message] exchange is that Lee hit Willow after he was awakened in the morning . . . ."
In addition, the trial court instructed the jury regarding evaluating witness credibility, generally. (See CALCRIM No. 226.) This, together with the corroborating evidence, establishes that the failure to instruct the jury specifically regarding accomplice testimony was harmless.
CALCRIM No. 226 instructs the jury to consider among other circumstances whether a "witness's testimony [was] influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided[.]" (Italics added.)
II. Juror Misconduct
After the jury reached its verdicts, Lee filed a motion seeking disclosure of the sealed personal juror identifying information (hereafter, the motion to disclose) so that he could contact them to develop a new trial motion based on juror misconduct. His motion cited seven bases of juror misconduct that allegedly occurred "throughout the course of the trial."
Lee's trial court briefing asserted the following seven categories of alleged juror misconduct: (1) some jurors made predeliberation statements indicating they had prejudged his guilt; (2) two jurors shared their expertise regarding CPR as it related to intubation of Willow; (3) several jurors drank beer during lunch breaks and one juror took medication containing the narcotic codeine; (4) one juror made predeliberation statements critical of defense experts; (5) one juror discussed with her daughter concerns about possibly being the lone holdout juror; (6) jurors reenacted Lee's doorjamb explanation; and (7) jurors discussed Lee's custodial status.
The trial court found Lee made a prima facie showing as to only one ground of potentially prejudicial juror misconduct: that Juror No. 7 stated before deliberations began that he had prejudged Lee's guilt. Accordingly, the court set a hearing to determine whether to disclose Juror No. 7's—and only Juror No. 7's—personal identifying information. After receiving notice, Juror No. 7 consented.
Lee then moved for a new trial based on the same seven grounds of alleged juror misconduct asserted in his motion to disclose. After weighing the credibility of the declarations submitted by each side, the trial court found the jurors either had not engaged in misconduct or, if they had, it was nonprejudicial.
On appeal, Lee contends the trial court's rulings on both motions were erroneous. With respect to his motion to disclose, Lee maintains that three of the grounds he asserted below warranted holding a hearing to determine whether to release all jurors' personal identifying information. We agree with respect to one of those grounds—prejudging Lee's guilt—and therefore discuss only that ground.
The three bases Lee asserts on appeal are: (1) prejudging his guilt; (2) sharing expertise regarding CPR; and (3) consuming beer or taking codeine.
With respect to the new trial motion, Lee asserts on appeal only that the trial court erred with respect to its ruling regarding jurors prejudging his guilt. Based on the record before the trial court when it ruled on that motion, we find no error. However, the court's earlier ruling on the motion to disclose potentially prejudiced Lee's ability to show he was entitled to a new trial. Accordingly, we conditionally reverse the judgment with respect to conviction and the trial court's ruling on the new trial motion, subject to further proceedings as described below.
We first set forth the legal principles governing the two motions. Although they were brought and ruled on separately, we evaluate them together because they are closely related.
A. Relevant Legal Principles
1. Access to Personal Juror Identifying Information
"Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors . . . , consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court . . . ." (Code Civ. Proc., § 237, subd. (a)(2).) "[A] defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Id., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Id., § 237, subd. (b).)
"Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires 'a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .' [Citations.] Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. [Citation.]" (People v. Cook (2015) 236 Cal.App.4th 341, 345-346 (Cook).) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure. [Citations.]" (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
To make the required prima facie showing of good cause, a petitioning defendant need not introduce admissible evidence establishing juror misconduct actually occurred; rather, it is sufficient to show that talking to jurors is reasonably likely to produce admissible evidence of such misconduct. (People v. Johnson (2013) 222 Cal.App.4th 486, 493 (Johnson I).) In determining whether a petitioning defendant has made a prima facie showing, the trial court does not evaluate the credibility of the petitioner's evidence, but rather, determines whether the evidence, if credited, would sustain a favorable decision. (People v. Johnson (2015) 242 Cal.App.4th 1155, 1163 (Johnson II).) A petitioning defendant need not show he or she made diligent efforts to contact jurors by other means. (Johnson I, at pp. 495-497.)
Evidence Code section 1150 limits the type of evidence that may be used to make a prima facie showing of good cause to disclose personal juror information. It states, in part: "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." (Id., § 1150, subd. (a).) Evidence Code section 1150 " '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.] ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." ' " (People v. Danks (2004) 32 Cal.4th 269, 302 (Danks).)
"If the trial court finds that the moving party has made a prima facie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. (Code Civ. Proc., § 237, subd. (b).) The trial jurors are entitled to notice, an opportunity to object to disclosure, and an opportunity to appear. (Code Civ. Proc., § 237, subd. (c).) [¶] If none of the jurors object, the trial court must grant disclosure. However, if a juror is unwilling to be contacted, the trial court must deny disclosure. (Code Civ. Proc., § 237, subd. (d).)" (Johnson I, supra, 222 Cal.App.4th at p. 492, fn. omitted.)
If the record shows that investigation of alleged juror misconduct would not reveal anything prejudicial, the trial court may deny the petition for disclosure. (People v. Box (2000) 23 Cal.4th 1153, 1222-1223, disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322 [to support disclosure of juror identifying information, the alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly' "].)
We review the denial of a petition for disclosure of juror information for an abuse of discretion. (Cook, supra, 236 Cal.App.4th at p. 346.)
2. New Trial Motions
"A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors." (People v. Nesler (1997) 16 Cal.4th 561, 578; see In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).) "An impartial juror is someone 'capable and willing to decide the case solely on the evidence' presented at trial." (Nesler, at p. 581.)
A criminal defendant may move for a new trial on the basis of juror misconduct. (§ 1181, subds. 3 & 4; People v. Ault (2004) 33 Cal.4th 1250, 1260.) When "a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry." (People v. Duran (1996) 50 Cal.App.4th 103, 112 (Duran).) First, the court must determine the admissibility of the evidence submitted in connection with the motion. (Ibid.) Evidence Code section 1150 is of particular import in this regard. (Duran, at p. 112.)
Second, the court must determine whether the admissible evidence establishes misconduct. (Duran, supra, 50 Cal.App.4th at p. 113.) "The trial court may conduct an evidentiary hearing to determine the truth of the allegations set out in the declarations." (Ibid.; see People v. Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock).) The defendant is not entitled to such a hearing as a matter of right; the trial court has discretion to hold such a hearing. (Hedgecock, at p. 415.) If the court chooses to hold such a hearing, it "should not be used as a 'fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even [then], an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (Id. at p. 419.)
Third, if the court finds that misconduct occurred, it must then determine whether the misconduct was prejudicial. (Duran, supra, 50 Cal.App.4th at p. 113.) "Once misconduct has been established, prejudice is presumed; reversal is required unless the reviewing court finds, upon examination of the entire record, there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." (Ibid.; Danks, supra, 32 Cal.4th at p. 302; Hamilton, supra, 20 Cal.4th at p. 296.)
" 'Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination.' [Citation.] However, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' " (Danks, supra, 32 Cal.4th at pp. 303-304.) This is true even when the evidence presented at a new trial hearing takes the form of affidavits or declarations, rather than live testimony. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1465; see Johnson I, supra, 222 Cal.App.4th at p. 499 [" ' "[T]he power to judge the credibility of witnesses to resolve conflicts in the testimony is vested in the trial court" ' [citation], even when the witnesses testify via declarations [citation]."].)
B. Background
1. Motion to Disclose
On April 6, 2015, Lee filed his motion to disclose. He explained the need for court intervention: "Following the jury verdict, the defense spoke with several of the jurors who remained in the courthouse. A few of the jurors provided defense representatives with their contact information. Most, however, did not." Lee supported his motion with declarations from Juror No. 12, and one alternate juror (Alternate) who did not deliberate.
Juror No. 12 stated in her declaration:
"2. Within a week of the trial, I was walking out of the courtroom. With two of my fellow male jurors walking directly behind me. I heard one of them say, [']He's guilty as hell.'
"3. Also during the first week of trial, at the end of a day's session, while walking in the parking lot, I heard Juror #7 state, 'He's guilty; there's no doubt.'
"4. As early as a week into the trial Juror #7 was very open with his opinion about [Lee] being guilty.
"5. Juror #7 openly discussed his opinion about the defense experts. After Dr. Barnes (the defense radiologist) testified, Juror #7 stated to other jurors that, 'He's an idiot, he doesn't know what he's talking about.'
"6. Referring to Dr. Benson (the defense orthopedist), Juror #7 stated to other jurors 'how stupid' it was for the witness to compare an infant's skull to an egg shell and for the witness to demonstrate the fragility of an infant[']s skull using an eggshell.
"7. Juror #7 told fellow jurors, during trial (before deliberations), that the defense experts are 'just hired guns.' "
Alternate stated in her declaration:
"2. Based on hearing the chatter in the hall from other jurors, there was an obvious sentiment that Lee was guilty. I stated to juror #11 that I am very intuitive and told her that I felt that I was in the minority of the jurors. Juror number 11 responded, stating that she too is intuitive and she, too, shares my feelings about being in the minority. [¶] . . . [¶]
"5. On February 10, 2015, I had lunch with Juror #4. I told her that I feel so sorry for the Trahan's [sic] and everything they've been through[;] that it is a travesty[;] and that when the trial is over I will give them money. Juror #4 told me that she thought [Lee] was guilty from the beginning. . . . [¶] . . . [¶]
"7. Juror #7 also made comments about the defense expert witnesses during court breaks. He told other jurors that the defense witnesses are just hired guns and that with enough money you can get an expert to say whatever you wanted them to.
"8. After the defense orthopedic expert, Dr. Benson, testified, I heard Juror #7 comment on his testimony, stating that his demonstration with an egg shell was stupid.
"9. After the defense radiologist expert, Dr. Barnes, testified, I heard Juror #7 mention[] to other jurors that the witness is 'an idiot.' "
The prosecution opposed the motion and submitted supporting declarations from four jurors (Juror No. 6, Juror No. 10, Juror No. 11, and Juror No. 12).
Juror No. 6, the foreman, stated in his declaration:
"2. I am not aware of any misconduct by the jury in this case.
"3. I kept a fair and open mind during trial, up until the jury went into the deliberation room.
"4. I feel that juror information should not be released in this case.
"5. I did not hear any discussions by any jurors about guilt or innocence or forming opinions prior to deliberations.
"6. With the exception of hearing someone during the trial say, 'Are they going to recall every witness?' I did not hear any jurors making comments about witness testimony during the trial. [¶] . . . [¶]
"13. Juror #12 . . . was specifically told about the punishment by the defense team immediately after the verdicts. I knew this was going to make Juror #12 feel bad because Juror #12 expressed she had a hard time sitting in judgment of anyone. I was unaware what the punishment was and this topic never came during trial or deliberations to my knowledge. [¶] . . . [¶]
"18. During trial I never heard Juror #7 or anyone make comments about testimony or opinions about the evidence in the case. [¶] . . . [¶]
"28. If anyone decided this case before we all went into the deliberations it was Alternate . . . . [Alternate] was vocal immediately after the verdicts were read that she disagreed with our decision."
Juror No. 10 stated in her declaration:
"2. I am not aware of anything I consider misconduct by the jury in this case.
"3. I kept a fair and open mind during trial, up until the jury went to the deliberation room.
"4. I recently had dinner with Juror #12 . . . after the verdicts were rendered in this case. Juror # 12 informed me that she had met with [defense counsel] and Alternate . . . , to discuss the deliberations. I do not know who set up this meeting.
"5. Alternate . . . indicated she did not agree with our verdicts as we, the jury, were walking out of [the courtroom] after the verdicts were read. Juror # 12 . . . was near me at this time so I assume [she] heard Alternate . . . state her disapproval. I knew this would make Juror # 12 feel bad.
"6. Juror # 12 . . . told me Alternate . . . believes Lee . . . is innocent and wants to give money to financially help [him]. [¶] . . . [¶]
"8. Juror # 12 told me after the trial that [defense counsel] told her, that he feels Lee is innocent and was wrongfully convicted. I knew this made Juror # 12 feel bad. [¶] . . . [¶]
"13. I think when Juror # 12 heard a mandatory 25 years to life in prison was the sentence for Lee . . . that made her feel badly about her decision. . . .
" 14. I never heard anyone form opinions about guilt or innocence prior to deliberations. [¶] . . . [¶]
"17. When I had dinner with Juror # 12 after the verdicts I said to her 'if you feel Lee wasn't guilty why didn't you vote not guilty?' Juror # 12 stated she feels bad now."
Juror No. 11 stated in her declaration:
"2. I am not aware of any misconduct by the jury in this case.
"3. I kept a fair and open mind during trial, including when the jury went into the deliberation room. [¶] . . . [¶]
"6. I was unaware of the sentence for any of the counts until after verdicts were reached. After delivering the verdicts someone from the defense side told some of the jurors, including myself, Count One was a mandatory 25-life sentence. [¶] . . . [¶]
"10. We as a jury followed the law and listened to the evidence and listened to one another. I do not believe anyone came into the jury room with a closed mind. . . . [¶] . . . [¶]
"13. Alternate . . . was upset by the verdicts in this case and told me after the verdicts were read, 'you wouldn't have wanted me in the jury room.' Alternate . . . wanted me to speak with [the] defense after trial. It appeared to me the Alternate . . . sided with [the] defense and disagreed with our verdicts."
In a second declaration, provided to the prosecution, Juror No. 12 stated:
"1. After the verdicts in this case I was contacted by [defense counsel]'s assistant Tonya. I met with [defense counsel], Tonya and Alternate . . . at [Alternate]'s home. I believed other jurors were going to·also be there but they were not.
"2. I wish I had never said anything about the verdicts and signed a declaration. I was unaware my statements were going to be used by being turned into a declaration and submitted to the court and prosecution.
"3. I do not believe anything I wrote in my previous declaration prepared by defense or said to defense would rise to the level of misconduct. I do not believe I committed misconduct. [¶] . . . [¶]
"6. I was told Count One carried a mandatory 25-life sentence immediately after the verdict. [Defense counsel] came out of the courtroom and told the jurors that were there, including me, that this was a mandatory sentence and the judge had no discretion.
"7. I later learned the comment by [defense counsel] about the mandatory sentence is not correct.
"8. I feel bad about the sentence. I am a sensitive person.
"9. I had a hard time with this case being circumstantial and not being able to prove exactly what happened. I wasn't comfortable having to reach a verdict, but I am comfortable with the decision I made.
" 10. I was never comfortable having to make a decision. I wish I had never been involved in this case.
"11. At [Alternate]'s house I also asked [defense counsel] if he liked being a defense attorney. [Defense counsel] said something like it's very difficult, especially when your client is innocent. [Defense counsel] did not specifically state he meant that about Lee . . . , but that is who we are talking about. That comment made me feel bad.
"12. After meeting at [Alternate]'s home I signed the defense declaration. [¶] . . . [¶]
"17. Alternate . . . is very pro-defense. Immediately after the verdicts were read [she] said something like [']you should be glad I wasn't in there or we would have hung.['] [Alternate] said she wants to fund the defense and/or do fund raisers for Lee['s] defense. [¶] . . . [¶]
"25. I think at some point I overheard Juror # 7 say something like 'he is guilty as hell.' I think he said that during the trial, but I don't think him saying that persuaded anyone to find him guilty just because Juror # 7 said that. [¶] . . . [¶]
"31. When Alternate . . . said if she was on the jury it would have been a hung jury, I felt like because she said that, that maybe I made a mistake. I felt maybe I should have stuck to not guilty. But being a member that deliberated, I was able to evaluate the evidence and have discussions with the other jurors. [¶] . . . [¶]
"33. During the meeting with [defense counsel], his assistant . . . , Alternate . . . and I, [Alternate] made us watch a 'Dateline' segment about a baby case and how this baby functioned after receiving head trauma. I watched this program and wondered how this was even similar to this case other than it was a baby involved.
"34. I am now signing this declaration as I feel it was only fair I talk with both sides. I understand [defense counsel] has a job to do. I don't feel there was any misconduct.
"35. I felt a little pressured to render a verdict, but I never felt forced to render the verdict I rendered.
"36. I don't want my words to be taken out of context and I don 't want to have to talk about this anymore."
The prosecution argued in its opposition brief that it did not appear from the declarations that any juror "had conclusively prejudged the case" by "ignor[ing] further evidence, argument, instructions, or the views of other jurors." In support, the prosecution noted the jury had acquitted Lee of murder (though it convicted him of manslaughter). The prosecution also insinuated defense counsel had exploited Juror No. 12's sensitivity.
At the hearing, defense counsel expressed "frustration" at his "limited resources, limited databases, limited access to the information as opposed to the power of the People that have a great deal of access." He cited the court's repeated admonitions to jurors "not to form or express opinions" and not to "discuss the case with yoursel[ves]." The prosecution countered by emphasizing defense counsel's alleged exploitation of Juror No. 12 and by reassuring the court that it had obtained juror contact information voluntarily and not through law enforcement resources.
The court found Lee had made a prima facie showing of potentially prejudicial misconduct by Juror No. 7:
"I have a statement, a declaration by a juror that Juror No. 7 made that statement. To me that statement . . . is misconduct and . . . it may be prejudicial. I believe under the status of the law, I need to . . . conduct the hearing to determine whether or not to disclose the identification of Juror No. 7. I don't need any other juror and here's why: I already have declarations that say Juror No. 7 made that statement. What I need to know is the explanation behind it." (Italics added.)
The court sent Juror No. 7 a letter advising him of a hearing to determine whether to disclose his personal identifying information to the parties. Juror No. 7 appeared at the hearing and stated he had no objection to speaking to either counsel.
Three days later, the prosecution filed a declaration signed by Juror No. 7 stating:
"2. I am not aware of any misconduct by the jury in this case.
"3. I kept a fair and open mind during trial, including when the jury went into the deliberation room.
"4. I listened to other jurors' opinions and even was persuaded to change my mind to vote not guilty on the second degree murder charge in Count Two as well as not guilty for Count Three and the lesser charge in Count Four.
"5. During evidence and prior to deliberations I do not recall ever stating Lee . . . was 'guilty as hell,' 'was guilty,' or anything like that to other jurors or to anyone.
"6. I was careful not to talk about the case outside of the courtroom per Judge Elias'[s] instructions. [¶] . . . [¶]
"8. I did not discuss evidence outside of the trial . . . .
"9. I never made any statements during evidence about any of the experts being 'hired guns.' [¶] . . . [¶]
"12. I do not recall any jurors saying anything about Mr. Trahan's guilt or innocence during evidence in this case.
"13. I recall Juror Number 12 stating she would rather have a guilty person go free than convict an innocent person. Juror Number 12 was one of the jurors that helped persuade me to change my mind on the second degree murder charge."
2. New Trial Motion
About two months later, Lee filed a new trial motion based on the same seven grounds of alleged juror misconduct originally asserted in his motion to disclose. He supported the motion with the same declarations filed in connection with the earlier motion, but proposed certain redactions to excise deliberative content barred by Evidence Code section 1150. Lee asserted there was no factual dispute about whether Juror No. 7 publicly announced he had prejudged Lee's guilt. In support, Lee cited (1) Juror No. 12's unequivocal assertion in her first declaration that Juror No. 7 stated as early as the first week of trial that he had prejudged Lee's guilt; (2) Juror No. 12's second declaration, procured by the prosecution, which still (albeit less specifically) asserted Juror No. 7 stated he had prejudged Lee's guilt; (3) Alternate's assertion in her declaration that "she heard similar statements of belief in guilt prior to deliberations," although "she was unable to specifically identify the speaker"; and (4) Juror No. 7's "conspicuously vague" assertion in his declaration that he does " 'not recall' " ever saying before deliberations that he had prejudged Lee's guilt. Anticipating the prosecution argument that the compromise verdict on the murder count demonstrated a lack of prejudice, Lee cited People v. Brown (1976) 61 Cal.App.3d 476, 482 (Brown) to support the proposition that whatever " 'negotiations or events occurred to cause the juror to vote for acquittal on one of those counts and the motivation and reasons therefor are, of course, beyond the competence of affidavits to show or this court to consider on the issue of jury misconduct.' "
The prosecution opposed the new trial motion. Citing the more equivocal language in Juror No. 12's second declaration ("I think" and "say something like"), the prosecution argued Juror No. 12 had "back [pedaled] . . . to a point of uncertainty." The prosecution also expressed its "grave concern" that defense counsel attempted to sway jurors with "incorrect information" about "a 'mandatory life [sentence],' " which "played upon [Juror No. 12's] sympathies." In that vein, the prosecution asserted Juror No. 12 "was essentially tricked" by Alternate into meeting with the defense team and made to watch a Dateline segment. The prosecution also challenged Alternate's credibility on the basis she "ha[d] been very vocal to not just defense counsel, but to the deliberating jurors that she disagrees with the jury's verdicts in this case and wants to help fund the Trahan[s'] defense." Finally, the prosecution maintained Juror No. 7's declaration—obtained after he voluntarily made himself available to both sides—constituted a sufficient denial that he had not made the statements attributed to him by Juror No. 12. As anticipated, the prosecution cited the compromise verdict on the murder count (and acquittal on the child abuse count as to K.T.) as evidence "that no juror prejudged his case and stuck in his or her heels, was unwilling to bend, or was dead set on finding [Lee] 'guilty as hell.' "
In response, Lee filed a declaration from defense counsel's assistant, Tonya, explaining the circumstances of the meeting at Alternate's house with Juror No. 12. Tonya stated that it had been explained to Juror No. 12 ahead of time that members of the defense team would be present; that Juror No. 12 understood and agreed that her statement would be put into a written declaration and filed with the court; and Alternate presented the television segment without the defense team's advance knowledge.
At the hearing on the new trial motion, the court indicated it did not "feel a need to call any additional witnesses"—it could resolve the matter "solely on points and authorities, the argument and the declarations filed." After hearing argument from counsel, which tracked the parties' briefing, the court denied Lee's motion, explaining: "I'm finding specifically there was not misconduct. Were someone to disagree with that analysis, I'm finding that if misconduct did exist it was not prejudicial."
As to the nonoccurrence of misconduct, the court emphatically declared it had "eliminate[d] Alternate['s] declaration in totality" "strictly [as] a credibility issue." The court explained it also discounted Juror No. 12's declaration—which the court characterized as "the only potential declaration I've got with any merit to it that it was said"—based on the court's finding that Juror No. 12 was "impressionable and affected by . . . emotion" such that her "backtracking is now not clear when it was said." Finally, the court declined to parse Juror No. 7's use of "do not recall" as finely as defense counsel proposed, finding instead that the declaration was "sufficient . . . that he didn't make the statement."
To support its credibility determination, the court cited the lack of corroboration for the defense declarations: "[I]f you believe the Alternate, which I don't, but if you believe the Alternate and if you believe Juror No. 12, it would seem to me to be near impossible to believe that no one else heard it. And I have declarations from three specific other jurors— . . . [Juror No. 6,] . . . [Juror No. 11], who is sitting right next [to Juror] No. 12, and . . . [Juror No. 10]—who didn't hear it."
Finally, as to the lack of prejudice, the court explained it was unpersuaded by the prosecution's compromise-verdict argument, but instead based its conclusion on its review of "the entire record," which "include[d] not only all the evidence presented but the length of time the deliberations occurred, the questions the jury asked the court in terms of additional evidence and/or instructions, and the ultimate verdict itself."
C. Analysis
We begin with the trial court's denial of Lee's new trial motion. The record before the trial court when it ruled on this motion contained substantial evidence to support the court's factual determination that Juror No. 7 did not make any statement indicating he had prejudged Lee's guilt.
First, the jurors' declarations submitted by the prosecution support the court's finding that Juror No. 12 was "impressionable and affected by . . . emotion" such that her "backtracking is now not clear when it was said." Juror No. 12 described herself as "sensitive"; Juror No. 6 said Juror No. 12 "expressed she had a hard time sitting in judgment of anyone"; and Juror No. 10 said she knew Juror No. 12 would "feel bad" when Alternate told her she disagreed with the jury's verdict. The court could properly have exercised its factfinding role to determine that the defense team's disclosure of a lengthy sentence and assertion of Lee's innocence prayed on Juror No. 12's sympathies.
Second, the record supports the court's "eliminat[ion of] Alternate['s] declaration in totality" "strictly [as] a credibility issue." Alternate's own declaration, while describing a predeliberation conversation with Juror No. 4, revealed that Alternate was sympathetic to Lee and intended to help fund his legal defense. Alternate became aware of Juror No. 4's (and her own) alleged misconduct, yet waited until after trial to come forward. Juror Nos. 6, 10, and 11 all stated that Alternate—who had not deliberated with the jury—immediately voiced her disapproval of their verdicts. The court also cited Alternate's "offensive" conduct in connection with showing the television segment, which Juror No. 12 corroborated in her second declaration.
Finally, the court construed Juror No. 7's declaration as a sufficient denial, despite his use of imprecise language in doing so. The trial court had personally observed Juror No. 7 during voir dire, throughout the lengthy trial, and during the hearing on Lee's motion to disclose. This gave the court a sufficient opportunity to evaluate Juror No. 7's credibility.
Because substantial evidence supports the trial court's credibility-based factual finding that no misconduct occurred with respect to Juror No. 7 allegedly prejudging Lee's guilt, we accept the trial court's factual finding and see no error in the court's denial of the new trial motion based on the record before it.
That record, however, might have been improperly narrowed by the trial court's decision to limit the hearing on the motion to disclose to only Juror No. 7's personal identifying information. The court explained it limited the hearing to Juror No. 7 because the court "already [had] declarations that say Juror No. 7 made that statement" and the court only "need[ed] to know . . . the explanation behind it." In other words, because the court accepted that Juror No. 7 had made a statement prejudging Lee's guilt, the court found it unnecessary to allow Lee the opportunity to attempt to further substantiate the fact the statement was made.
Yet, the trial court ultimately denied the new trial motion precisely because the court found Juror No. 7 had not, in fact, made a statement prejudging Lee's guilt. In that regard, the court noted that under Juror No. 12's and Alternate's versions of events, "it would seem . . . to be near impossible to believe that no one else heard it." And the court further noted that three other jurors (Juror No. 6, Juror No. 10, and Juror No. 11) submitted declarations stating they did not hear Juror No. 7 make such a statement. But this left seven other jurors (Juror Nos. 1-5 and Juror Nos. 8-9) unaccounted for. In light of the trial court's determination that it would have been a near impossibility for another juror not to have heard Juror No. 7 make the challenged statement, the court erred by not holding a hearing to determine whether to release the remaining jurors' personal identifying information as well.
As importantly, although the trial court focused its analysis of juror-prejudgment misconduct exclusively on Juror No. 7, Lee's supporting jurors' declarations showed additional alleged instances of juror prejudging. For example, Juror No. 12 asserted that as jurors were filing out of the courtroom one day during trial, she heard one unknown male juror state to another unknown male juror that Lee was " 'guilty as hell.' " Juror Nos. 1-3 and 5 are male, yet the court did not hold a hearing to determine whether to disclose their personal identifying information.
In addition, Alternate asserted in her declaration that Juror No. 4 stated before deliberations "that she thought [Lee] was guilty from the beginning." Yet, the court did not set a hearing to determine whether to disclose Juror No. 4's personal identifying information. Even the Attorney General's brief on appeal states the defense "declarations were insufficient to justify intrusion into any juror's privacy except, perhaps, Juror No. 4." (Italics added.)
Although the trial court eventually found Alternate was not credible for purposes of ruling on the new trial motion, her credibility was irrelevant in assessing whether Lee had made a prima facie showing on his motion to disclose. (See Johnson II, supra, 242 Cal.App.4th at p. 1163.)
The Attorney General argues that even if Lee made a prima facie case of misconduct, a hearing was unnecessary because the fact that jurors asked questions during trial, compromised their verdict on the murder count, and acquitted Lee of abusing K.T. demonstrate that jurors kept an open mind and were not, in fact, biased. We are not persuaded that a hearing was unnecessary.
First, we note the trial court rejected these contentions, at least with respect to Juror No. 7. To the extent the trial court based that decision on its firsthand observation of trial proceedings, we find that decision persuasive in our independent determination of whether prejudice arose.
Second, the fact the jury acquitted Lee of murder and instead convicted him of manslaughter does not indicate that no juror prejudged his guilt. The fundamental question facing jurors was whether Willow died of accidental/natural causes, or as a result of inflicted trauma. The fact that the jury returned a guilty verdict on the lesser offense of manslaughter does not rule out the possibility that jurors prejudged Lee's culpability in the abstract—they simply had not yet been instructed on the legal requirements of each count or lesser included offense. Moreover, the Attorney General's argument "is pure speculation . . . . What negotiations or events occurred to cause the juror to vote for acquittal on those counts and the motivation and reasons therefor are . . . beyond the competence of affidavits to show or this court to consider on the issue of jury misconduct." (Brown, supra, 61 Cal.App.3d at p. 482, citing Evid. Code, § 1150.)
Finally, the record does not indicate which jurors asked which questions or what their motives were in doing so.
For these reasons, the trial court erred by not holding a hearing to determine whether to disclose personal juror identifying information for all jurors. That error might have prevented Lee from making a showing of prejudicial misconduct justifying a new trial. Accordingly, we conditionally reverse the judgment with respect to conviction and the court's order denying Lee's new trial motion. The trial court is directed to undertake further proceedings as specified in the disposition.
III. The People's Appeal Regarding Sentencing
Generally speaking, section 654 bars double punishment when the same course of conduct violates more than one law. (Id., subd. (a).) When it applies, section 654 requires that the sentencing court impose the punishment "that provides for the longest potential term of imprisonment." (Id., subd. (a).) Lee was subject to potential imprisonment for 25 years to life on his child abuse homicide conviction, and up to 11 years on his manslaughter conviction. To avoid imposing the longer sentence, the trial court—reasoning that probation does not constitute punishment—sentenced Lee to summary probation on the child abuse homicide count (though it found formal probation unwarranted) and to 11 years on the manslaughter count.
The People contend Lee's sentence is unauthorized. They argue the trial court was required to either impose the longer punishment (25 years to life) or grant formal probation (which the court expressly declined to do). They ask us to remand for resentencing. Lee contends the People forfeited this challenge by failing to raise it below. Alternatively, he contends the sentence constitutes cruel and unusual punishment as applied to him.
For reasons we will explain, we conclude Lee's sentence is unauthorized. Accordingly, we decline to find the People forfeited their challenge. (See People v. Scott (1994) 9 Cal.4th 331, 354 ["the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal"].) We also decline to address Lee's cruel-and-unusual challenge because he did not assert it below. (See People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248 (Speight) ["A defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review."].) As requested by the People, we remand for resentencing.
A. Background
In its sentencing memorandum, the prosecution acknowledged that section 654 barred the court from punishing Lee for both the child abuse homicide and manslaughter convictions. The prosecution argued he was presumptively ineligible for probation, and urged the court to sentence him to 25 years to life on the child abuse homicide conviction and to the aggravated term of 11 years on the manslaughter conviction, with the latter stayed under section 654. In arguing against probation, the prosecution noted Lee inflicted severe and painful head trauma and compression fractures to his vulnerable infant daughter; his text messages indicated he was aware of multiple instances of his wrongdoing; as a trained Marine, he could not have succumbed to provocation by a helpless infant; and there were no mitigating circumstances, as Lee was raised by a loving family and was an adult when he committed the offenses. The prosecution emphasized probation is not a punishment but, rather, an act of clemency reserved for those who, unlike Lee, show remorse for their actions.
The prosecution argued Lee was presumptively ineligible under section 1203, subdivision (e)(3), which provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted." --------
The probation officer's report stated Lee was eligible for probation, but recommended against it. The report concluded the circumstances supporting a denial of probation (the victim's vulnerability and Lee's infliction of physical injury) outweighed those supporting a grant of probation (Lee's clean criminal record, and his willingness and ability to comply with the terms of probation). The report recommended that the court sentence Lee to 25 years to life on the child abuse homicide count.
Lee's statement in mitigation asked the court to grant him probation. He disputed that he was presumptively ineligible for probation under section 1203, subdivision (e)(3), reasoning neither of his convictions required a finding that he had willfully inflicted great bodily injury. He argued probation was appropriate in light of his "lack of criminal history, exemplary military service, his remorse, and the loss he has already suffered." He asserted that sending him to prison would not deter others from abusing children because the crime is committed "in the heat of provocation and extreme emotional distress," not after "some degree of deliberation and planning." In addition to the circumstances supporting probation acknowledged by the prosecution, Lee also cited the unusual circumstances of the offense, his claimed remorse, and the probation department's assessment of a low risk of recidivism.
At the sentencing hearing, the court stated it had read the probation report, the parties' sentencing materials, and our court's decision in People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis). The parties agreed the court's only options were to sentence Lee to "probation and he gets out," or "25 to life" on the child abuse homicide conviction. After hearing argument, the court stated it had two issues to address: (1) Lee's suitability for probation, and (2) "the unacceptability of the disparity I have in the sentencing scheme."
As to probation, the court stated "the import of Lewis" is that Lee is not presumptively ineligible for probation under section 1203, subdivision (e)(3) and, thus, the court would "have to find a reason to in fact deny probation." The court concluded, "I don't think probation is appropriate." The court was "moved most by the fact of the delay in getting her, Willow, medical care and the conversation back and forth between [Lee] and [Jessica], which shows an awareness of what transpired and a decision to delay." Based on that decision to delay, the court also found that sentencing Lee to prison would have "some deterrent value" to others considering delaying seeking treatment.
On the disparity in sentencing options, the court recognized that the parties agreed the court had "only two choices," but the court responded: "I'm not known necessarily for being pinned down in choices. And I don't believe that's necessarily the case." Recognizing that section "654 comes into play," and "relying on the People's analysis that probation is not punishment" (and, presumably, is therefore not barred by section 654), the court granted Lee summary probation on the child abuse homicide conviction, and sentenced him to the aggravated term of 11 years on the manslaughter conviction. The court selected the aggravated term based on Willow's vulnerability and age, and Lee's violation of a position of trust. Lee's summary probation would expire on his release from prison onto parole, and included only the condition that he "violate no laws other than minor traffic" offenses.
B. Relevant Legal Principles
Section 654, subdivision (a) states in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." When section 654 applies, "the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for the offense with the longest sentence." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338; People v. Duff (2010) 50 Cal.4th 787, 796.) "A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain." (People v. Alford (2010) 180 Cal.App.4th 1463, 1469.)
Child abuse homicide in violation of section 273ab carries a mandatory sentence of 25 years to life in state prison. (§ 273ab, subd. (a).) Voluntary manslaughter is punishable by three, six, or 11 years in state prison. (§§ 192, subd. (a), 193, subd. (a).) Both offenses are felonies. (§ 17; People v. Shields (1990) 222 Cal.App.3d 1, 5, fn. 5 ["voluntary manslaughter is a felony"].)
"Summary or informal probation, or a conditional sentence is only permitted for misdemeanors and infractions; the defendant may not be placed on informal probation for a felony." (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) § 8:14, p. 8-14; see § 1203, subds. (a) & (d); People v. Glee (2000) 82 Cal.App.4th 99, 104 (Glee) ["Summary probation is not authorized in felony cases."]; People v. Willis (2013) 222 Cal.App.4th 141, 145 (Willis) ["the court's imposition of summary probation was a conditional sentence, which is only available in misdemeanor cases"]; People v. Taylor (2007) 157 Cal.App.4th 433, 437 (Taylor) ["A conditional sentence is the grant of informal or summary probation, and such sentences are authorized only in misdemeanor cases."].)
C. Analysis
Lee's sentence was not authorized by law. Both of his convictions were for felony offenses. Therefore, summary probation was not an authorized sentence for either conviction. (See Glee, supra, 82 Cal.App.4th at p. 104; Willis, supra, 222 Cal.App.4th at p. 145; Taylor, supra, 157 Cal.App.4th at p. 437.) Further, because the trial court expressly found that formal probation was not appropriate, it follows that summary probation was also not appropriate.
As noted, we decline to address in the first instance Lee's claim that a sentence of 25 years to life on the child abuse homicide count would constitute cruel and unusual punishment as applied to him. He did not raise the issue below. (See Speight, supra, 227 Cal.App.4th at pp. 1247-1248.) Nor did the trial court base its sentencing decision on such an analysis, implicit or otherwise. Although the trial court cited Lewis at the sentencing hearing, and Lewis does address whether the mandatory sentence imposed by section 273ab constitutes cruel and unusual punishment (Lewis, supra, 120 Cal.App.4th at pp. 854-856), our review of the record makes clear that the trial court was not citing the case for that proposition but, rather, to explain its conclusion that Lee was not presumptively ineligible for probation under section 1203, subdivision (e)(3) (Lewis, at p. 850).
Accordingly, we reverse the judgment with respect to Lee's unauthorized sentence, and remand for resentencing depending on the outcome of the further proceedings contemplated in our disposition.
DISPOSITION
The judgment with respect to conviction and the order denying Lee's new trial motion are conditionally reversed. The judgment with respect to sentence is reversed.
On remand, the trial court is directed to hold a hearing on Lee's motion to disclose as to all jurors. If the trial court thereafter denies the motion to disclose (or, if it grants the motion but Lee does not move within 60 days thereof for a new trial based on new evidence obtained as a result of the granting of the motion to disclose) the trial court shall reinstate the order denying Lee's new trial motion, reinstate the judgment with respect to conviction, and resentence Lee. However, if the court thereafter grants the motion to disclose and Lee timely moves for a new trial based on evidence obtained as a result of the granting of the motion to disclose, the trial court shall proceed accordingly. If the court ultimately denies any potential new trial motion, the court shall then reinstate the judgment with respect to conviction and resentence Lee. We express no opinion on the merits of any potential new trial motion.
HALLER, J. WE CONCUR: BENKE, Acting P. J. NARES, J.