Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Mariposa County. Ct. No. 5919, Harry Nicholas Papadakis, Judge. (Retired judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
OPINION
On August 3, 2007, a jury convicted appellant, Curtis Wayne Wyrick, of four counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of lewd and lascivious conduct on a child 14 or 15 years of age (§ 288, subd. (c)(1)). In a separate proceeding, Wyrick admitted two prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On August 14, 2007, defense counsel filed a motion for a new trial alleging juror misconduct during voir dire.
On August 21, 2007, the court denied the motion.
On November 19, 2007, the court sentenced Wyrick to an aggregate term of 40 years eight months consisting of an aggregate determinate term of 10 years eight months and a consecutive, aggregate, indeterminate term of 30 years to life. On appeal, Wyrick contends the court abused its discretion when it denied his motion for a new trial. We will affirm.
The facts of the underlying offenses are omitted because they are not relevant to the issue raised by Wyrick.
During voir dire the court asked the prospective jurors, “Anyone here closely related to anyone in law enforcement?” When Juror No. 60074 was called to the jury box, she acknowledged hearing the questions the court had previously asked. When the court asked, “Any of those questions you feel you should respond to?” (sic), she replied “No.” In response to further questioning, Juror No. 60074 provided personal information including that she was currently engaged.
On August 7, 2007, four days after the jury convicted Wyrick in this matter, the prosecutor wrote a letter to defense counsel advising him that she had learned Juror No. 60074 married Nick Gilbert in May 2004 and that they briefly lived together as a married couple for three months. The letter also stated that Gilbert was the son of Betty Halencak and the stepson of Tom Halencak. Betty Halencak was the secretary of Mariposa County District Attorney Robert Brown. Tom Halencak had been a Mariposa County Sheriff’s Deputy from 1990 to May of 2003 and a district attorney investigator from May 2003 through February 2007. In a statement to a district attorney investigator, Juror No. 60074 stated that the above relationships did not affect her performance as a juror, she answered truthfully when asked during voir dire whether she had a close relationship with someone in law enforcement, and that she was never really close to her ex-husband’s family.
On August 14, 2007, Wyrick filed his motion for a new trial alleging that Juror No. 60074 willfully hid her relationship to the Halencaks in order to be seated on the jury. The motion had the prosecutor’s letter attached to it.
On August 17, 2007, the prosecutor filed a response which stated that Betty Halencak separated from Tom Halencak in December 2005 and initiated divorce proceedings on May 24, 2006. The response also stated that while obtaining the dissolution records for Juror No. 60074, the prosecutor was informed that the juror’s current fiancée, Eric Paige, was the nephew of Fred Paige who formerly worked as a Mariposa County Sheriff’s deputy for many years and was currently employed part-time with the Mariposa Superior Court in court security. Eric Paige also had an aunt who was a court reporter for the Mariposa Superior Court and was married to Jim Allen, the current Mariposa County Sheriff and Paige’s deceased grandfather was the Mariposa County Sheriff from 1975 to 1983.
The prosecution’s response also contained a statement from Tom Halencak stating that he was not close to Juror No. 60074 and had not talked to her since her divorce from his stepson.
On August 21, 2007, at a hearing on Wyrick’s motion Juror No. 60074 testified that during voir dire, when the court asked the prospective jurors whether any of them was closely related to anyone in law enforcement, she interpreted the question as asking about a spouse or a blood relative like a father or brother. She did not think the court was asking about her former relationship with her former in-laws.
Juror No. 60074 further testified that she married Nick Gilbert in May 2004 and lived with him for three months after that. She was never close to Tom Halencak and never spoke to him about his work or Wyrick and she did not know anything about the case before it started. She never talked to Betty Halencak about her employment and was unaware she worked as a secretary for the Mariposa County District Attorney. Juror No. 60074 believed her fiancée, Eric Paige, had two uncles, Jim Allen and Fred Paige, who were involved in law enforcement. Allen is married to Fred’s sister LeeAnn Allen who is a court reporter. She did not view a court reporter as part of law enforcement and did not think about her relationship with the Halencaks or the Paiges when the court asked if she was closely related to anyone in law enforcement. None of these relationships influenced her decision in Wyrick’s case.
During voir dire Juror No. 60074 was present when a nephew of Tom Halencak was questioned and heard the court ask the prosecutor whether Tom Halencak had worked on Wyrick’s case. This, however, did not prompt her to disclose her former relationship to Halencak because she did not consider her relationship to him to be close.
After hearing counsels’ arguments, the court denied the motion finding that Juror No. 60074 did not deliberately fail to disclose any material information during voir dire, that she was credible and unbiased, and that there was no clear showing of prejudice to Wyrick and no juror misconduct. The court also found that Juror No. 60074 did not have a close relationship with Tom Halencak.
DISCUSSION
Wyrick contends that the following circumstances indicate that Juror No. 60074 intentionally withheld material information on bias when she answered the court’s question whether she was closely related to anyone in law enforcement: 1) Juror No. 60074 did not disclose her relationship to Tom Halencak when one of his nephews who was also a member of the venire, disclosed that he was related to Halencak; 2) other jurors interpreted some of the voir dire questions more broadly and provided more tangential answers on the issue of bias than did Juror No. 60074; and 3) Juror No. 60074 did not disclose that the court reporter who recorded the new trial motion hearing was the aunt of her fiancée. Thus, according to Wyrick, the court abused its discretion when it concluded that Juror No. 60074 did not engage in misconduct and denied his motion for a new trial. We will reject these contentions.
“We begin with the basic proposition that one accused of a crime has a constitutional right to have the charges against him or her determined by a fair and impartial jury. [Citations.] A prospective juror’s ability to be fair and impartial is explored during the process of voir dire. The significance of this process has been explained by our Supreme Court as follows:
“‘“Voir dire examination serves to protect [a criminal defendant’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.” [Citation.]
“‘A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]’ [Citations.]
“Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.] Declarations of jurors may be used to show that a juror concealed bias or other reason for disqualification by providing false answers during voir dire. [Citations.] When considering these declarations, the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150. As pertinent, this section 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.’ [Citation.] This statute has thus been found to allow consideration of evidence of ‘“overt acts’-that is, such statements, conduct, conditions, or events as are “open to sight, hearing, and the other senses and thus subject to corroboration” ....’ [Citation.] As a result, Evidence Code section 1150 may be violated ‘not only by the admission of jurors’ testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.” [Citation.] [¶] … [¶]
“Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. [Citation.] 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. [Citation.]
“The trial court’s determination on a motion for new trial ‘“‘rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’”’ [Citation.]” (People v. Duran (1996) 50 Cal.App.4th 103, 111-113.)
Here, pursuant to Evidence Code section 1150 Juror No. 60074’s statements and testimony that her decision in this case was unaffected by her relationships with her ex-husband’s family and fiancée’s family were not admissible. Nevertheless, the record contains other substantial evidence that supports the court’s finding that Juror No. 60074 did not intentionally withhold information during voir dire. The court asked the prospective jurors if anyone was “closely related” to anyone in law enforcement but neither the court nor either counsel defined “closely related.” At the hearing on Wyrick’s motion, Juror No. 60074 testified she interpreted this phrase to mean someone related by blood or a spouse. In view of the above circumstances, her interpretation of this phrase was reasonable. Further, there was no evidence presented that she was aware of the employment status of her fiancée’s uncles and aunts at the time. Nevertheless, assuming she was, her interpretation of the phrase “closely related” provides a reasonable explanation for her failure to tell the court during voir dire that two of her fiancée’s uncles were employed in law enforcement. This is particularly true because she did not have a legal relationship to her fiancée’s close or extended family when she was selected as a juror and no evidence was presented at the hearing on Wyrick’s motion disclosing the extent of her relationship to them. Her failure to disclose that her fiancée’s aunt was a court reporter was reasonable for the additional reason that the aunt’s employment as a court reporter did not make her a part of law enforcement.
Juror No. 60074’s interpretation of the court’s question also explains why she did not disclose that her former husband’s stepfather worked in law enforcement. As to her former mother-in-law, Juror No. 60074’s testimony that she never spoke to her about her employment and was unaware that she was the secretary to the Mariposa County District Attorney is uncontradicted in the record. Additionally, the court’s question was phrased in the present tense whereas her relationship with her former husband and in-laws ended approximately three years earlier. Thus, with respect to her former in-laws, her response was not only reasonable, it also was clearly accurate.
Juror No. 60074’s failure to disclose her prior relationship to the Halencak’s when their nephew disclosed his relationship to Tom Halencak does not alter this conclusion. Juror No. 60074’s legal relationship with the Halencak’s was not encompassed within her interpretation of a “close relation,” which we have determined was reasonable.
Wyrick cites several juror’s responses to voir dire questions to contend that other jurors did not interpret the questions as narrowly as Juror No. 60074 and provided “more tangential indicia of potential bias.” According to Wyrick, this indicates Juror No. 60074 intentionally failed to disclose material information. Wyrick is wrong.
Not all jurors responded to every question asked during voir dire and there is no way to know whether any juror’s failure to respond to a particular question resulted from a narrow interpretation of the question. Thus, even assuming some juror’s interpreted the voir dire questions more broadly than Juror No. 60074 interpreted the question whether she was “closely related” to anyone in law enforcement, it does not follow from this that she was untruthful in her response to this question. In any event, a review of the examples of juror answers cited by Wyrick to support this contention discloses that most of these answers were responsive to the questions asked and did not involve a broad interpretation of the court’s questions.
We also reject Wyrick’s contention that Juror No. 60074’s failure to tell the court that the court reporter at the hearing on his motion was his fiancée’s aunt shows that Juror No. 60074 intentionally withheld material information. The main issue at this hearing was whether Juror No. 60074 withheld information during voir dire regarding any close relationships she had with people involved in law enforcement, not whether anyone at the hearing on Wyrick’s motion had any relationship to her. And, as noted earlier, a court reporter is not part of law enforcement. Further, although the court reporter was her fiancée’s aunt, Juror No. 60074 did not yet have a legal relationship with her and there is no evidence that Juror No. 60074 was familiar with the appearance of her fiancée’s aunt or recognized her as the court reporter reporting the proceedings. Additionally, Juror No. 60074’s role as a witness was to answer questions and she was not asked whether she was related to the court reporter prior to the prosecutor disclosing this information. Given these circumstances, Juror No. 60074’s failure to tell the court that the court reporter was her fiancée’s aunt is not surprising and of no import. Accordingly, we reject Wyrick’s contention that the court abused its discretion when it denied his motion for a new trial.
DISPOSITION
The judgment is affirmed.