Opinion
A164756
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. W.H., Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 19-CR-002488)
Petrou, J.
A jury convicted defendant W.H. of two counts of committing a lewd act on a child and sustained the substantial sexual conduct enhancement. On appeal, W.H. contends the trial court erroneously allowed victim impact evidence and failed to instruct on attempted lewd act as a lesser included offense. He further contends the trial court erred by denying his motions for a new trial and for an evidentiary hearing and disclosure of juror information. Finally, W.H. asserts the trial court erred by failing to award presentence custody credits. We agree W.H. is entitled to one day of presentence custody credits, but otherwise affirm the judgment.
We use W.H.'s initials to protect the minor's identity.
Factual and Procedural Background
When the minor was approximately four years old, she, her sister, and her mother resided with W.H. and his partner for several months. The minor testified she was sitting on W.H.'s lap when he touched her and put "two fingers inside - inside of my vagina." She stated she could feel him moving his fingers inside her. The minor stated it hurt but did not tell anyone because she was confused and did not understand what was happening.
There were some inconsistencies between the minor's statements to police and her subsequent trial testimony. For example, she informed police the first instance occurred in a bedroom while lying on her stomach. We do not address or identify all the testimonial inconsistencies because it is not relevant to our resolution of the issues on appeal.
The minor testified to a second occasion, in which W.H. engaged in similar conduct while they were together in his backyard hot tub. She again stated it hurt, she felt confused, and she did not tell anyone because she didn't understand what happened and "thought it was pretty normal until I learned what it was."
The minor then testified to two instances that happened a few years later after W.H. and his partner moved out of state. The minor and her sister were visiting during the summer, and she had her bed set up in the office. The minor was on the bed watching TV while W.H. was in the office working. She stated W.H. sat down next to her, pulled her pajama bottoms down, and put two fingers in her vagina and moved them. The minor began to cry, and W.H. informed her" 'This is our secret.'" The minor testified to a final incident that was like the other summertime visit, except she was asleep and woke up to W.H. putting his fingers in her vagina and moving them with a scissoring motion. The minor testified she was crying, and W.H. eventually stopped and said" 'Sorry I have to leave so soon.'" She stated she felt gross, disgusted, and confused, and "tried so hard to justify it because [she] still didn't know what was happening."
When the minor was approximately twelve, she told her online girlfriend about W.H.'s conduct in response to the girlfriend disclosing a similar experience. When her girlfriend encouraged her to report W.H.'s actions, the minor responded" 'I can't. There's no way I can say it....He thought I loved it. He told me - he told me good girl and even when my aunt was near, he'd do it. It hurt me even thinking or talking to you about it. I - I don't like it - I don't like this, but I can't say anything.' "
A few weeks later, the minor disclosed W.H.'s abuse to her mother. The minor started to see a therapist, who reported the abuse to the police.
The Napa County District Attorney charged W.H. by information with three counts of sexual penetration with a child age 10 or younger (Pen. Code, § 288.7, subd. (b); counts 1-3), three counts of committing a lewd act on a child under age 14 (§ 288, subd. (a); counts 4-6), and one count of continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a); count 7). The information also alleged that W.H. had substantial sexual conduct with a child under age 14 during the commission of counts 4 through 7 (§ 1203.066, subd. (a)(8)).
All further undesignated statutory references are to the Penal Code.
At the conclusion of the prosecution's case, W.H. moved for a judgment of acquittal on counts 3 through 7 and the special allegation. The prosecution had no objection to the dismissal of counts 3, 6, and 7. The trial court denied the motion as to counts 4 and 5, and the special allegation as to those counts. The prosecution filed an amended information reflecting the remaining two charges of sexual penetration with a child age 10 or younger (counts 1 and 2) and committing a lewd act on a child under age 14 (renumbered counts 3 and 4) with substantial sexual conduct allegations as to counts 3 and 4.
At trial, the prosecution offered evidence from an expert in child abuse suggestibility and the effects of abuse on children, in addition to testimony by the minor, her sister, and her mother. The defense offered testimony from two experts in the areas of forensic psychology, memory, and false reporting. W.H. testified in his own defense. W.H.'s partner and partner's sister testified regarding their observations of the minor's conduct. The defense also offered testimony from six character witnesses regarding W.H.'s honesty and lack of deviant sexual interest in children.
The jury found W.H. guilty of both counts of committing a lewd act on a child and found the substantial sexual conduct allegations true. The jury deadlocked on both counts of sexual penetration with a child.
W.H. filed a motion for new trial. He also filed a motion for an evidentiary hearing and disclosure of juror information to investigate juror misconduct. The court denied both motions.
Additional information regarding these motions is set forth in Part II.A, post.
W.H. timely appealed, and the court released him on bail pending the appeal.
Discussion
On appeal, W.H. asserts the trial court violated his state and federal rights by admitting testimony by the minor, her sister, and her mother that constituted inadmissible victim impact evidence. W.H. further argues (1) he was entitled to a new trial because the court erroneously ordered the jury, once deadlocked, to continue deliberating, (2) the court erred in denying his motion for an evidentiary hearing and juror information to investigate juror misconduct, (3) the court should have provided a sua sponte instruction on attempted lewd act as a lesser included offense, and (4) the court failed to properly award presentence custody credits. We address each argument in turn.
I. Admission of Victim Impact Evidence
W.H. contends the prosecutor improperly presented victim impact evidence and related argument during the guilt phase of trial, resulting in a violation of his due process and fair trial rights.
A. Relevant Factual Background
During the prosecution's case, the prosecutor asked the minor how she felt after her last summer visit to W.H.'s home. Defense counsel did not object. The minor responded, "Just gross and sad," and stated she still feels that way. When the prosecutor asked how the minor currently felt about W.H.'s conduct, the court sustained defense counsel's objection on relevance grounds.
The prosecutor then asked the minor, "How has this affected your life?" Defense counsel objected, and the court overruled the objection. The minor then answered, "It made me have a difficult time trusting people, being comfortable around males and even adults. I would always have these thoughts, really bad things, and be scared to be alone at night. It was hard to really do anything because I was always self-conscious."
During the mother's testimony, the prosecutor asked what the minor's personality was like as a young child. The mother testified the minor was very outgoing and used to run into the room "singing and dancing." She stated the minor's personality began to change around age four or six and she started "putting more and more clothes on," like "layer upon layer of clothes. She'd have socks and leggings and shorts on with a skirt over top that, with a shirt on top of that, with a sweater on top of that....[I]t would be summertime here in Napa, and she would be wearing the owl hat or something that covered her ears and came down to here (indicating). So she was just completely covered."
The prosecutor also asked the mother "How did you feel when [the minor] was telling you [about the offenses]?" The court sustained a relevance objection, but then allowed the mother to testify about her reaction. The mother stated she told the minor she believed her and loved her and apologized that it took so long for the minor to tell her what happened.
The prosecutor concluded the mother's examination by asking her how she felt about testifying. The mother stated she felt "disgusted" and "angry" and "sad" and "emotional."
The minor's sister also testified regarding the minor's disclosure. After learning about it from their mother, the sister testified that the minor started crying when she asked the minor about the abuse. The sister stated her own demeanor was "[h]urt and sad" during their conversation because "as her bigger sister, I felt like I was supposed to protect her."
During closing arguments, the prosecutor informed the jury that they "got to see, firsthand, the effect that this had on [the minor]. How she was on the stand. How this has affected her life.... Even while she was testifying, she kept covering herself up, holding her sweater, putting it over herself." The prosecutor noted how the minor "can't trust people," and is "scared of older male adults." The prosecutor posed the question of "[w]hy would she make something like this up," and then noted the lack of motive and "the toll this has taken on her, on her mother, taken on her sister."
B. Analysis
W.H. asserts the referenced testimony and argument amounted to "victim impact evidence" which, he contends, is inadmissible during the guilt phase of trial. He relies on People v. Vance (2010) 188 Cal.App.4th 1182 to assert such evidence" 'is allowed only in the penalty phase of a capital trial.' "
The Attorney General asserts W.H. waived his objection to most of the disputed testimony because he failed to raise an objection. In response, W.H. argues an objection would have been futile or, alternatively, the failure to preserve such an objection constitutes ineffective assistance of counsel. We need not address these arguments. Even assuming the objections were preserved, we find no error as discussed below.
Our review of that case and the cases cited therein, such as Payne v. Tennessee (1991) 501 U.S. 808, does not reveal a blanket prohibition against victim impact evidence during the guilt phase of a noncapital trial. Rather, the California Supreme Court has held that a "defendant's claim that . . . testimony constituted impermissible guilt phase victim impact testimony is simply an objection that the testimony was irrelevant or more prejudicial than probative." (People v. Banks (2014) 59 Cal.4th 1113, 1165, abrogated on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; see People v. Redd (2010) 48 Cal.4th 691, 731, fn. 20 (Redd) [no distinction between alleged error in admission of victim impact evidence and admission of any other irrelevant evidence].) Moreover, the California Supreme Court has expressly rejected an assertion that the admission of victim impact evidence during the guilt phase at trial, such as that admitted here, violates a defendant's federal constitutional rights. (Redd, at p. 732, fn. 21.) Thus, as an initial matter, we reject W.H.'s argument that admission of victim impact evidence during the guilt phase of trial violated his rights to due process or fair trial.
As to the admissibility of such evidence, relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see also People v. Kraft (2000) 23 Cal.4th 978, 1034.) The trial court may exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (Evid. Code, § 352.)"' "In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.] . . . The 'prejudice' which section 352 seeks to avoid is that which '" 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" '" (People v. Cage (2015) 62 Cal.4th 256, 275.)
We review the admission and exclusion of evidence under Evidence Code section 352 for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004 [under abuse of discretion standard," 'trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice' "].)
Here, the minor's testimony regarding the ongoing impact of the incidents was relevant to the jury's analysis of her credibility and whether the alleged abuse occurred. (Accord People v. Bledsoe (1984) 36 Cal.3d 236, 251-252 ["in this [rape] case numerous witnesses . . . described the severe emotional distress that [the victim] exhibited both in the house immediately following the attack and in subsequent weeks, and . . . there is no question . . . that such evidence was properly received. Lay jurors are . . . fully competent to consider such evidence in determining whether a rape occurred"]; People v. Coleman (1989) 48 Cal.3d 112, 143 ["Statements . . . describing emotional and psychological trauma suffered by the [victim] following an alleged rape are admissible as circumstantial evidence on the question whether the defendant had a reasonable good faith belief that the [victim] had consented to his act."].) As W.H. argues in his brief, "[a] reasonable doubt could come from believing [W.H.], believing his character witnesses, believing [his expert], or believing that [the minor's] generally happy demeanor in Napa and Oregon was inconsistent with someone spending time with her abuser." Accordingly, testimony regarding changes in the minor's behavior, her demeanor around the time of the incidents, and her demeanor while disclosing the incidents is directly relevant to these issues.
The testimony regarding the mother's and sister's reactions to the minor's disclosure also demonstrates whether they found the minor's claims believable at that time. This testimony was relevant considering the defense witnesses who testified that the minor frequently lied and had a reputation for lying.
Nor do we find the testimony overly prejudicial. The minor's testimony was limited to a single question and answer. The sister's testimony constituted two questions. The mother's testimony, which was the most extensive, primarily focused on the changes she observed in her daughter's behavior immediately following the incident. But even this testimony was relatively brief, consisting of direct answers and comprising no more than two pages of a very lengthy reporter's transcript.
Finally, we conclude the prosecutor's closing argument, which referenced how these events impacted the minor's life and the lack of motivation by the minor and the mother to lie, was a fair comment on the evidence presented at trial. (People v. Hill, supra, 17 Cal.4th at p. 819.) The prosecutor did not ask the jury to imagine the minor's feelings or appeal for sympathy. Rather, her closing merely summarized the testimony of the minor, mother, and sister, and constituted one page of a thirty-page summation.
Based on the foregoing, we cannot conclude the trial court abused its discretion in admitting such testimony and argument.
Because we conclude the trial court did not err in admitting this evidence under either federal or state law, we need not reach the remaining arguments asserted by W.H. regarding prejudice and ineffective assistance of counsel.
II. Post-Trial Motions
W.H. next asserts the trial court erred in denying (1) his motion for new trial, and (2) his motion for an evidentiary hearing and disclosure of juror information to investigate jury misconduct.
A. Relevant Factual Background
Following a seven-day trial, the jury began its deliberations in the morning of the final day after the conclusion of closing arguments. At approximately 4:00 p.m. of the first day of deliberations, the jury informed the court they were deadlocked.
The court discussed the deadlock with the parties before speaking with the jury. The court noted the jury had deliberated "for a total of two hours in the morning, and three hours in the afternoon," so its inclination is to "tell them that they really haven't been deliberating that long," "go home, get a good night's rest, come back tomorrow and continue deliberating, and we can check with them late morning, middle of the day." The court explained its reasoning: "[T]here's a lot of evidence in this case, and a lot to consider. And I'm not sure they have really spent the time on the case that it deserves." The prosecutor agreed with the court's approach, and defense counsel suggested soliciting information about "how firm" they are and whether further deliberations would be useful.
After the jury returned to the courtroom, the court noted the time spent deliberating is "not necessarily a long time by typical standards" and asked the foreperson whether "the jury has had an opportunity to carefully examine the case, discuss it, and work towards a verdict." The foreperson stated they reviewed evidence and testimonies "[a]nd not all of us saw it the same way.... [P]eople are sticking to their guns."
The court then asked: "And are there any of you that think that maybe going home and having a good night's sleep and coming back in the morning and spending a little more time deliberating might enable you to reach a decision?" The foreperson stated that the question had been asked to "some individuals, and . . . they said it wouldn't change their minds if we came back tomorrow." Juror Number 12 then volunteered that, for himself, coming back would not help change his mind.
The court proceeded to instruct the jury as follows:
So, ladies and gentlemen, what I'm about to tell you -- I'm listening to you. But sometimes . . . my experience has been that, number one, this is still relatively early in deliberations for a case of this nature, involving the amount of evidence and testimony that you've heard.
So what I'm going to do is I'm going to excuse you for the day. I'm going to have you come back tomorrow morning at 9:00 o'clock for further deliberations. I want you to make some more efforts, and we'll check in with you mid to late morning tomorrow to see where things are and we'll reassess.
But at this point, in my experience, I've seen this happen a number of times where having that night to sort of reflect and think helps people in the discussion, and the next day they're able to come to a decision.
Ultimately, it's each of your individual decisions. It's -- you have to follow the instructions and you have to make your own decision about how you want to vote in this matter. But . . . I'm not confident and comfortable that enough time has been spent deliberating, given the nature of the case, the nature of the evidence, or the amount of witnesses and other testimony that was presented in the case.
So I'm going to read you the admonition. I'm going to excuse you for the evening to come back tomorrow morning at 9:00 for further deliberations.
The following day, the jury requested additional readback and continued its deliberations before it was excused for the weekend. On Monday afternoon, the jury reached a verdict of guilty on counts 3 and 4 and found true the special allegations as to both counts. The court found the jury hopelessly deadlocked on counts 1 and 2.
Following the jury verdict, defense counsel retained a private investigator to contact members of the jury and discuss their deliberations and verdict. Juror No. 8 spoke with the investigator, but refused to sign a written declaration.
Juror No. 2 also spoke with the investigator and signed a declaration. The declaration stated he was one of three jurors who voted" 'not guilty'" on two of the counts. He stated he did not find the minor believable because she was unable to remember what happened and found it unlikely that each act occurred in the same manner. He stated the jurors who voted for conviction did not believe the memory experts and believed there was a sexual connotation to W.H. calling both his partner and the minor "[g]ood [g]irls." He further stated the jurors who wanted to convict "had the strongest voices," felt W.H. "was a 'perv,'" and believed W.H. would lie about this case in the same manner that he lied about his past cheating and affairs. Juror No. 2 concluded his declaration by stating: "At the end of the deliberations the vote was 11-1 for guilty on the less serious count and I was the last holdout. I finally decided to vote guilty on the less serious count because if the case went this far through the court system it is possible that something did happen."
W.H. filed a motion for new trial, asserting in relevant part that the court erred in ordering the jury to continue deliberating because there was no evidence to suggest further deliberations would result in agreement. W.H. asserted the order to continue deliberating communicated to the jury that it needed to reach a verdict, which resulted in a coerced and invalid verdict.
The motion for new trial, supported by Juror No. 2's declaration, also asserted the jury engaged in misconduct by (1) inferring guilt from being charged and tried for a crime, (2) applying a standard of proof less than beyond a reasonable doubt, (3) voting to convict "through some kind of bargaining process"; and (4) considering punishment during deliberations. He further argued the evidence of misconduct raised a presumption of prejudice.
W.H. subsequently filed a second motion, requesting an evidentiary hearing and disclosure of juror information. The motion argued that disclosing juror information and conducting an evidentiary hearing would allow the parties to investigate the issues of juror misconduct identified in the motion for new trial. In addition to the prior juror declaration, W.H. also attached a declaration from his investigator recounting statements made by Juror No. 8 about the jury deliberations.
The investigator's declaration stated he spoke with Juror No. 8, who believed W.H. was guilty. The declaration recounted that the juror informed the investigator (1) "there was one juror who absolutely wouldn't reconsider his point of view, so the jury decided to be hung on the more serious charges"; (2) "one of the jurors brought up that some of the testimony felt coached and she said she did not believe anyone was coached"; (3) "she felt that some of the jurors were having a tough time sending someone to prison and that contributed to the three votes for not guilty on the more serious count."
The District Attorney opposed both motions. The District Attorney argued the court did not err in instructing the jury to continue deliberating because (1) it was appropriate to conclude the jury had not deliberated for a sufficient period of time, and (2) the court's comments were not coercive and did not pressure the jury to reach a verdict. She further argued W.H. failed to establish a prima facie showing of good cause to support an evidentiary hearing on juror misconduct. The District Attorney asserted W.H.'s theory of misconduct was speculative and based on inadmissible statements reflecting mental processes and subjective considerations.
The court denied both motions. First, the court found the supporting declarations "don't support a reasonable belief that juror misconduct occurred." The court found Juror No. 2's mental processes inadmissible under Evidence Code section 1150, and the admissible sections of his declaration "revealed . . . that other jurors believed the testimony of the victim . . ., and declared that eventually he ended up voting guilty with the other jurors." The court further noted "[t]he other juror's statement . . . [was] that there was disagreement, but the majority of the jurors were in favor of voting guilty, and eventually they voted for guilt on two counts, and hung on the other two." The court thus concluded "[t]here's no showing in the Affidavits that punishment was discussed, that bargaining took place, or a different standard of proof was discussed."
Next, the court rejected W.H.'s argument that it erred in directing the jurors to continue deliberating after they initially indicated a deadlocked.
The court noted the jury had been deliberating for less than a day and merely highlighted that brevity to the jurors. Before ultimately reaching a verdict, the jurors then deliberated for two more days and asked a "number of questions, including request for readback." The court thus found its actions did not do "anything to compel [the jury] to reach a verdict."
B. Motion for New Trial
On appeal, W.H. only challenges the order denying his motion for new trial based on the trial court's instruction to the jury to continue deliberating. He contends the jury was "hopelessly deadlocked" and the court's order to continue deliberating coerced the jurors into reaching a verdict.
Section 1140 provides that "the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."" 'The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." [Citation.]' [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case." (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
Nothing in the record indicates the court's instruction to the jury to continue deliberating was coercive or caused the jury to believe it was required to reach a verdict. At the time the court gave its instruction, the jury had been deliberating for less than one day. (See People v. Sta Ana (2021) 73 Cal.App.5th 44, 63-64 [instruction to continue deliberating appropriate where "the jury had deliberated for less than one full day and each of the two rape counts involved different and discrete elements"].) And this was the jury's first indication of disagreement; the court's instruction to continue deliberations was not in response to repeated reports of impasse. (See People v. Rodriguez (1986) 42 Cal.3d 730, 775.) Moreover, a court is not bound by a jury's statement that it is deadlocked and does not believe it can reach a unanimous verdict. (People v. Sta Ana, supra, 73 Cal.App.5th at p. 64; People v. Valdez (2012) 55 Cal.4th 82, 159 ["a court 'is not bound to take as final the statement of the [jurors] that they cannot agree upon a verdict.' "].) After the court instructed the jury to continue deliberations, they then continued to deliberate for multiple days, requested additional readback of testimony, and posed questions to the court. After these additional days of deliberations, the jury continued to be deadlocked on two of the causes, suggesting they did not believe they were required to reach a verdict. Based on the record, we conclude the trial court did not err in directing the jury to continue deliberations after it announced itself deadlocked.
None of the factors W.H. cites, such as the length of deliberation or the jurors' statements about their inability to reach a verdict-removed the trial court's discretion to require further deliberations. Nor was it unreasonable for the court to conclude that, in light of the factually complicated issues and amount of evidence presented, the jurors should continue their work beyond the initial five hours of deliberations. The record shows no abuse of discretion.
C. Request for Juror Information and Evidentiary Hearing to Investigate Jury Misconduct
W.H. asserts the trial court erroneously denied his request for an evidentiary hearing to investigate juror misconduct because (1) the jurors considered punishment during deliberations, and (2) at least one juror did not properly apply the "beyond a reasonable doubt" standard of proof.
"Under Code of Civil Procedure section 237, in a criminal case, the trial jurors' 'personal juror identifying information'-defined as their names, addresses, and telephone numbers-must be sealed after their verdict is recorded. [Citation.] However, '[a]ny person may petition the court for access to these records. 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.' [Citations.] [¶] 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." (People v. Johnson (2013) 222 Cal.App.4th 486, 492.) "We review an order on a motion for disclosure of jurors' identifying information under the deferential abuse of discretion standard." (Ibid.)
"[T]he first step in the analysis where jury misconduct is asserted is to determine whether the affidavits in support of the motion are admissible" under Evidence Code section 1150. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
Evidence Code section 1150 thus"' "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. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.'" '" (People v. Johnson, supra, 222 Cal.App.4th at p. 494; accord People v. Bryant, supra, 191 Cal.App.4th at p. 1467 [admission of jurors' affidavits within the limits set by [Evidence Code] section 1150 protects the stability of verdicts"].)
W.H. references the following statements to argue the jury engaged in misconduct: (1) Juror No. 2 "decided to vote guilty . . . because if the case went this far through the court system it is possible that something did happen"; and (2) Juror No. 8 believed some jurors "were having a tough time sending someone to prison." Contrary to W.H.'s argument, the declarations do not state that such concerns or beliefs were actually discussed during jury deliberations. Accordingly, these statements are inadmissible under Evidence Code section 1150 because they do not reflect" 'overt acts'" but rather" 'subjective reasoning processes of the individual juror.'" (See People v. Johnson, supra, 222 Cal.App.4th at p. 494.)
While W.H. asserts People v. Flores (2021) 70 Cal.App.5th 100 (Flores) supports his position, we disagree. To the contrary, Flores demonstrates why these statements are inadmissible. In Flores, the court noted "nine other jurors affirmatively declared the jury discussed whether its inability to unanimously agree on the murder count could affect defendant's punishment," including "specifically detailed comments made by [a juror] to the entire panel of jurors." (Id. at p. 109.) The court explained the jurors' declarations as to the statements made during deliberations are admissible, and the trial court abused its discretion in finding the entirety of the declarations inadmissible. (Ibid.) In concluding that these express statements were admissible, the court acknowledged "[m]any statements in the jurors' declarations are inadmissible. Why a juror did or did not change his or her vote, and his or her subjective understanding of the punishment discussions are evidence of internal thought processes and therefore inadmissible." (Id. at p. 108.)
Here, the declarations do not identify express statements made by the jurors during deliberations. Rather, they reflect internal thought processes that numerous courts, including Flores, acknowledge are inadmissible.
W.H. also argues the jury engaged in bargaining over his sentence and improperly speculated over which charges would result in a prison sentence. But, again, the declarations do not state that the jury engaged in such discussions. At most, the declarations state certain jurors insisted on maintaining their "not guilty" vote on the "more serious charges"; and, as a result, the jury decided to be hung on those charges. This statement merely reflects the verdict-a deadlock on counts 1 and 2 because the jurors could not agree. Notably, Juror No. 2, who was the remaining holdout on the "less serious" charges, did not state he changed his vote because the jurors discussed an agreement to deadlock on the "more serious" charges in exchange for him changing his vote. Nor did he identify any explicit statements or other overt acts made by jurors during deliberations that caused him to change his vote. We expect that defense counsel-who interviewed Juror No. 2 and prepared his declaration-would have included any such statements had they existed.
The remaining admissible statements in the declarations do not establish misconduct. These statements provide that Juror No. 2 voted "not guilty" on two of the counts, a juror would not reconsider his perspective resulting in the jury being deadlocked on "the more serious charges," various jurors wanted to convict because they did not believe W.H., and Juror No. 2 ultimately voted guilty on "the less serious count." These statements do not reflect improper deliberations or misconduct.
Finally, W.H. argues many of the statements in the declaration constitute circumstantial evidence of what jurors said, sufficient to raise a prima facie entitlement to an evidentiary hearing under Evidence Code section 237. Not so." 'Prima facie evidence is that which will support a ruling in favor of its proponent if no controverting evidence is presented.'" (People v. Zamora (2022) 73 Cal.App.5th 1084, 1091.) But that evidence must still be admissible under Evidence Code section 1150. (See People v. Johnson, supra, 222 Cal.App.4th at pp. 492, 494-495.) We decline to consider general assertions in a declaration regarding what one juror "felt" other jurors considered, or a juror's declaration labeling charges as "serious" or "less serious," as evidence of issues expressly discussed by the jury during deliberations. If we accepted this argument, then any statement about a juror's internal thought process could qualify as "circumstantial evidence" of potential jury discussions that gave rise to such thoughts. And in doing so, we would render Evidence Code 1150 meaningless.
Compare W.H.'s position with, for example, a juror declaration that identified an express statement by a juror during deliberations that could be interpreted as either appropriate or potential misconduct depending on the context. In that case, such a statement would potentially constitute prima facie evidence supporting an evidentiary hearing to explore the circumstances surrounding such a statement.
Accordingly, we find no abuse of discretion in the trial court's decision not to hold an evidentiary hearing or disclose juror information to investigate juror misconduct.
IV. Failure to Instruct on Lesser Included Offense
W.H. asserts the trial court erred in failing to instruct on attempted lewd conduct under section 288, subdivision (a) (section 288(a)). W.H. contends attempted lewd conduct is a lesser included offense because section 288(a) is a specific intent crime, and a reasonable juror could have concluded he attempted but failed to achieve such conduct.
" '" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.'" '" (People v. Souza (2012) 54 Cal.4th 90, 114 (Souza).) Although a trial judge has a sua sponte duty to instruct the jury on" 'all general principles of law relevant to the issues raised by the evidence'" (id. at p. 115), it is "error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129; see also Souza, at p. 114 [no obligation to instruct on lesser included offense"' "when there is no evidence that the offense was less than that charged."' "].)
Section 288(a) "is violated if there is' "any touching" of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.' [Citation.] Thus, the offense described by section 288(a) has two elements:' "(a) the touching of an underage child's body (b) with a sexual intent." '" (People v. Villagran (2016) 5 Cal.App.5th 880, 890.)" 'To sustain a conviction of attempted violation of section 288(a), the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age.'" (Ibid.)
We need not resolve the question of whether an attempted lewd act in violation of section 288(a) is a lesser included offense to a lewd act. Even assuming it is a lesser included offense, W.H. has failed to identify substantial evidence in the record that he" 'took a direct but ineffectual step toward committing a lewd and lascivious act'" with the minor. (People v. Villagran, supra, 5 Cal.App.5th at p. 890.)"' "Substantial evidence" in this context is" 'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]'" that the lesser offense, but not the greater, was committed.'" (People v. Chenelle (2016) 4 Cal.App.5th 1255, 1261.)
Here, the evidence supporting a conviction on section 288(a) was provided through the minor's testimony. As discussed above, she described incidents that established all the elements of the offense of a lewd act on a child. No evidence was presented that W.H. took a "direct but ineffectual" step toward a lewd act. Rather, the only evidence supporting these counts was physical contact between W.H. and the minor. This is not a case where the accused admitted to engaging in certain acts which fell short of the completed crime or where the accused offered an alternative, innocent explanation for his conduct. W.H. claimed his innocence; his defense was that no physical contact occurred, and the minor had fabricated the claims against him.
On appeal, W.H. argues there is substantial evidence suggesting he did not digitally penetrate the minor. This argument misses the mark. Section 288(a) does not require penetration. Section 288(a) is violated if there is any sexual touching.
The jury could have either believed the minor's version of events, which supported a section 288(a) conviction, or believed W.H.'s claim that no contact occurred and acquitted him. Under these circumstances, there was no evidence from which a reasonable jury could conclude a lesser offense of attempted lewd act, but not the greater offense, was committed. Accordingly, the trial court did not err by failing to sua sponte instruct the jury on the lesser included offense of attempted lewd act on a child.
Because we conclude the court did not err in excluding the instruction, we need not address W.H.'s argument regarding prejudice.
V. Presentence Custody Credits
The parties agree the trial court failed to calculate W.H.'s pre-sentence credit under section 2900.5, subdivision (a).
In all felony convictions, when a defendant has been in custody, all days of custody must be credited upon the defendant's term of imprisonment. (§ 2900.5, subd. (a).) A defendant is entitled to custody credit beginning on the day of arrest and continuing through the day of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) A partial day is treated as a whole day. (Ibid.)
The parties agree W.H. was entitled to one day of presentencing credit at the time of his sentencing on March 7, 2021. While W.H. asserts he is entitled to a second day of presentence credit related to subsequent proceedings on March 11, 2021, he offers no explanation for why he should receive presentencing credit for postsentencing procedures. Accordingly, we will modify the judgment to award W.H. one day of presentence credit, and we will affirm the judgment as modified.
Because W.H. only served one day in presentence custody, he is not entitled to any presentence conduct credit. (See § 4019, subd. (f); People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358 ["[a] defendant who serves an odd number of days is not entitled to an additional single day of conduct credit"].)
Disposition
The judgment is modified to award W.H. one day of presentence custody credit under section 2900.5. The judgment is affirmed as modified.The trial court is directed to amend and correct the abstract of judgment to reflect the judgment as modified. The trial court shall forward a copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
In conjunction with this appeal, W.H. filed a petition for writ of habeas corpus, In re W.H., A168060. We have denied the petition by separate order filed this date.
WE CONCUR: Tucher, P.J. Fujisaki, J.