Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LA044097, Barry A. Taylor, Judge.
Steve Cooley, District Attorney, Phyllis Asayama and Cassandra Hart-Franklin, Deputy District Attorneys, for Plaintiff and Appellant.
Michael P. Judge, Public Defender, Albert J. Menaster and Monnica Thelen, Deputy Public Defenders, for Defendant and Respondent.
DOI TODD, J.
The People of the State of California (the People) appeal the trial court’s order granting Andrew Christopher Young (defendant) a new trial after a jury convicted him of attempted murder without premeditation or deliberation (Pen. Code, §§ 664/187) (count 1); aggravated mayhem (§ 205) (count 2); torture (§ 206) (count 3); second degree robbery (§ 211) (count 4); carjacking (§ 215, subd. (a)) (count 5); kidnapping for carjacking (§ 209.5, subd. (a)) (count 6); kidnapping (§ 207, subd. (a)) (count 7); and false imprisonment by violence (§ 236) (count 8).
All further references are to the Penal Code unless stated otherwise.
The People argue in their opening brief that the trial court’s order must be reversed for the following reasons: (1) the fact that a co-perpetrator is to be retried cannot serve as a basis for granting a new trial; (2) the granting of a new trial without a finding of prejudicial error is an abuse of discretion; (3) a juror’s misconduct in visiting the crime scene was not prejudicial to defendant and a new trial is therefore unwarranted. In their reply brief, the People argue for the first time that the statements attributed to the errant juror constitute inadmissible hearsay.
FACTS
I. Prosecution Evidence
On September 27, 2003, Jorge Pena was employed at Pizza Hut. At approximately 8:00 p.m. he was told to make a pizza delivery to 15215 Victory Boulevard. He parked his car in a red zone and was carrying his car keys, his cell phone, and $40 to $50 in cash when he approached the intercom of the apartment building at that address. Because the intercom did not work for apartment 201, he called the telephone number on the pizza receipt. A person, later identified as defendant, appeared on a balcony carrying a telephone. Defendant directed Pena to an interior staircase and told him to go to the second floor.
On his way to apartment 201, Pena exchanged greetings with a person standing in the hallway. The door to apartment 201 was open, and Pena told defendant the price of the pizza order. Defendant began patting his pockets and walking around the apartment as if looking for money. Pena suddenly felt someone put an arm around his neck, and he saw a dark-skinned male hand. He saw a long knife in the man’s other hand, and the blade was touching Pena’s neck. The man pushed Pena into the apartment, and Pena heard the door close. Pena offered his possessions and asked not to be hurt. Pena felt more pressure around his neck and he passed out.
The next thing Pena remembered was hearing a voice say, “‘We are going to do this to him to see what he does.’” Pena then felt burning pain on his stomach and opened his eyes. He was lying on his back on the carpet, and two people, one of whom was defendant, were next to him. The other was the man he had seen in the hallway. That man was holding an iron. Pena turned his head and saw that his wrist had been cut.
Defendant told Pena not to do anything stupid and not to try to escape because he had a gun. He could kill Pena or go to the store and shoot all the people who were there. Defendant said, “‘I used to like Mexicans until after they did to me what I am doing to you.’” The other man placed the iron close to Pena’s face and warned him not to try to do anything. One of the men wrote things on Pena’s face with a marker.
Defendant asked Pena what kind of car he had and Pena told him it was a red car with its blinkers on. Defendant left and then returned and asked the other person if he could drive a stick shift. The other person said he could “drive some” and left while defendant stayed in the apartment.
Pena never heard the other person give orders to defendant. He did not hear defendant tell the other person not to do something or to stop. While defendant was alone with Pena he told Pena not to do anything and asked him if he had a family. Defendant told Pena that he had a baby. Defendant did not offer any aid to Pena.
One or both of the men then picked up Pena, and one of them put a towel around his neck. They then left the apartment. At that time, Pena noticed that his neck had been cut and that the towel was stained with blood. Defendant led the way and the other person held Pena by the arm and put a knife in Pena’s ribcage. Pena’s car had been moved to a spot outside the door he had entered. Defendant looked around while Pena and the other man waited inside, and then Pena was told to get in the trunk of his car.
Pena was in the trunk approximately 20 minutes while the car was being driven, and he heard the men listening to music and laughing. The car stopped and Pena heard the doors close and the sound of keys hitting the ground. After about five minutes he heard another car approach and the voice of a man who said, “‘He is in the trunk of the car.’” A woman replied, “Oh yeah.” He heard the other car move away.
Pena waited a few minutes and then opened the trunk. He was able to do so because he had damaged the trunk lid in a car accident a month earlier. He walked to a nearby hotel and asked for help. He was eventually taken to a hospital where staples were put in his neck and wrist. The iron burns on his stomach were also treated. Pena identified defendant and defendant’s co-perpetrator from a photographic display.
Detective Maria Perez of the Los Angeles Police Department spoke with Pena at the hospital and showed him the photographs. Pena said that one of the suspects had long hair and one had short hair. It was later determined that Eugene Harris (Harris) was the suspect with long hair and defendant was the one with short hair. Pena said during the interview that the man with the long hair opened the trunk and asked him how to turn off the hazard lights. Pena told him how to do it, and the man closed the trunk.
Defendant and his co-perpetrator were arrested on September 28, 2003, at a Metrolink station. A set of keys found on defendant were identified as Pena’s at trial.
II. Defense Evidence
The defense called Detective Paul Fournier of the Los Angeles Sheriff’s Department to testify about his first meeting with defendant during a homicide investigation when defendant was 12 years old. The victim was defendant’s two-year-old sister, Wilma. Wilma died from blunt force trauma to the head caused by a hammer. Defendant confessed to the killing, but his account of the crime did not match the physical evidence. Detective Fournier finally determined that defendant’s father, the true perpetrator, had told defendant to confess to the crime.
Defendant testified that he was 16 years old at the time of the current offenses. He was living in his brother’s apartment. He knew Harris from his old South Central neighborhood and invited him to stay at his brother’s because Harris was homeless.
Although defendant was present when Harris attacked Pena, he did not know in advance what Harris was going to do. Defendant thought Harris was going to pay for the pizza, but Harris grabbed Pena and put a knife to his throat. Defendant was afraid and shocked that Harris began to choke Pena. Defendant tried to stop the attack by kicking at Harris while he was on the floor with Pena, but defendant accidentally kicked both Harris and Pena. Harris slashed Pena’s neck twice.
Defendant believed that the incident that was occurring with Harris and Pena was similar to what happened with his father and sister. He witnessed his father killing his sister with a hammer and saw a lot of blood on the child and on the floor. He did not try to stop his father because he was afraid he would be next. He did not try to get help because he felt like a hostage.
When defendant saw the blood coming from Pena’s neck he panicked and ran to his brother’s room. He waited a short time and then went and put a towel on Pena’s neck to help him. Defendant denied being with Harris when Harris burned Pena. When defendant came out of the bedroom, Pena was alone and defendant did not know where Harris was at that point. Defendant spoke with Pena but did not threaten him or talk about Mexicans. Defendant did not tell Pena he had a baby. Defendant had no baby, but Harris had a baby who was a year old or less at the time.
Harris returned to the apartment and said, “Come on.” This reminded defendant of his father because those were the exact words his father used when he told defendant to leave with him after he killed defendant’s sister. Defendant was afraid Harris would stab him, so he followed Harris to the door after Harris grabbed Pena and led Pena by force. Harris directed defendant to walk down the stairs. When they came to the exit door, defendant saw the trunk of Pena’s car as soon as they walked out. The car was facing out of the driveway and was approximately six to eight feet from the exit. When they stepped outside, Harris told Pena to get in the trunk, and Pena did so. Defendant was standing behind the car. He put his hand on the car when they first stepped out because he was first in line. Harris closed the trunk and told defendant to “come on.” Defendant got in the car because he was scared.
Harris and defendant eventually drove off, and Harris asked how to get to Los Angeles. Harris turned on the radio, and the men did not speak. There was no laughing. Harris eventually stopped the car, and they took a bus and a train to Los Angeles. Because he was afraid, defendant did not inquire about Pena’s welfare or refuse to go with Harris. They went to Harris’s uncle’s house where defendant felt like a hostage.
After defendant was arrested he lied to the interviewing detectives about what happened. He was afraid Harris would come after him if he said the wrong thing. Defendant denied that he was carrying Pena’s keys when arrested.
When asked on cross-examination why he touched the center of the trunk if he was not participating, defendant replied that when he walked out the door, that was the closest thing to him. He touched it as he was backing up.
PROCEDURAL BACKGROUND
On the afternoon of March 14, 2006, after approximately three and one-half days of deliberation, the jurors reached guilty verdicts in defendant’s case. On March 20, 2006, defense counsel filed a petition for access to juror identification information to explore two grounds for a possible new trial motion. On April 17, 2006, defense counsel noted she had received a letter written by a juror to the trial court and faxed to her by the trial court.
On October 2, 2006, the new trial motion was heard. In her motion, defense counsel asserted that the motion was made pursuant to section 1181, subdivisions (2) and (3) on the ground that the jury received prejudicial extra-judicial evidence, and on the ground of jury misconduct. Counsel relied on People v. Sutter (1982) 134 Cal.App.3d 806 (Sutter) for the proposition that a juror’s unauthorized visit to the scene of the crime generally constitutes misconduct.
Section 1181 provides in pertinent part: “When a verdict has been rendered or a finding made . . . against defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; [¶] 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; . . .”
Counsel stated that the trial court had received a letter from a juror, M., in which M. stated, “One juror in particular by the name of [E.], informed us that she went to the site, where the crime took place. She also stated that she lived near the building and the bushes were so close to the side door, that the defendant could have actually touched the pizza delivery man’s car.” After the trial court granted the defense motion for release of juror information, a defense investigator contacted M., who provided a written declaration. According to the declaration, a juror named E. had told the jurors that she had gone to the crime scene. She made this statement “in connection with a discussion about the victim being taken from the apartment to the car, and some bushes that were at the location.” E. said she had been there and that “that’s not possible.” According to M., E.’s statement “was in a negative context to the defendant with respect to the issue that was being deliberated, because it contradicted what Andrew Young had testified about, concerning how they had left the apartment building, how the victim was placed into the trunk, and how they left the scene.” After E. divulged this information, all the jurors became quiet. The foreman reprimanded E., saying that the jurors were not “supposed to go to that level.”
Defense counsel asserted that the juror misconduct was prejudicial because it not only adversely affected the jury’s impartiality but also contradicted the asserted defense set out in defendant’s testimony. The jury’s impartiality was affected because E. took a position adverse to defendant’s testimony based on her unlawful investigation of the crime scene, and she vouched for her own credibility over defendant’s. The defense was contradicted because the prosecutor claimed that Pena was led out of the side door by defendant for the purposes of committing counts 5 through 8 (carjacking, kidnapping for carjacking, kidnapping, and false imprisonment by violence), and the asserted defense to each of these counts was that defendant did not have an active role in removing Pena from the building or placing him in the trunk. E. contradicted this testimony by saying, “I have been there. It’s not possible.” Finally, counsel argued that the motion should be granted based on another incident that had occurred in the courthouse cafeteria when some jurors may have heard someone comment that defendant’s co-perpetrator had been convicted.
The People’s motion in opposition argued that the extraneous evidence relating to the crime scene did not contradict the evidence at trial. As for the overheard extraneous evidence about the co-perpetrator, the matter had already been addressed, and the jury had been properly admonished. Also relying on Sutter, the People stated that jury misconduct is not per se reversible, and the juror’s view of the crime scene did not contradict evidence presented at trial, where pictures of the apartment building were shown. Furthermore, there was nothing inconsistent in the descriptions of the apartment building given by the victim and defendant. There was no testimony regarding bushes at the crime scene by any witness. E. did not take a position adverse to defendant, as shown by the transcripts, and the crime scene had nothing to do with defendant’s role in the crimes. M.’s thoughts about what she believed to be contradictions cannot be considered because courts are prohibited from considering a juror’s reasoning process. The defense presented no evidence that the crime scene made defendant’s participation less likely. Lack of prejudice was also shown because the foreman reprimanded the juror. Finally, E. did not make an egregious statement, such as that defendant was lying, and M. did not indicate she had changed her mind as a result of the misconduct. Therefore, there was no evidence E.’s conduct affected other jurors.
Defense counsel agreed there was no testimony about any bushes but she asserted that bushes could be seen in the photographs. She reiterated that E. had contradicted defendant’s testimony. Therefore, according to defense counsel, prejudice was presumed under Sutter. And, unlike Sutter, what occurred outside in the instant case was very important. Defense counsel countered the People’s assertion that the foreman’s statement showed there was no prejudice by stating that E.’s remarks were already “out there,” and their effect on the other jurors was unknown.
The People reasserted that the actual physical appearance of the location was not an issue in this case. Pena testified that he could not remember who told him to get in the trunk; therefore, there was no contradiction.
The court stated, “Okay. I think this is a close case. I think there was juror misconduct. I think the question is whether it was prejudicial or not. I’m also mindful of the fact that the codefendant is going to have to be retried. And I think the People indicated at some point they’re going to get around the Miranda issue, if there is a retrial, by doing one trial rather than two. Under all of those circumstances, I think there is more to lose by not granting the motion than there is to gain by granting the motion. I would hate to have to try Mr. Young for the third time, having a third trial somewhere down the line, whether it’s me that tries it or someone else that tries it. I think in a case like this where there is juror misconduct, perhaps conceded, the motion should be granted. And I will grant it.”
Given that defendant committed his crimes with an accomplice, the trial court was most likely referring to an Aranda issue. (See People v. Aranda (1965) 63 Cal.2d 518 [addressing the propriety of admitting the confession of one defendant that implicates a non-confessing codefendant], partially abrogated by Prop. 8 as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465.)
DISCUSSION
I. The People’s Argument
The People contend that a court may grant a new trial only on certain grounds, and the trial court’s ruling indicates it was not based on one of these specified grounds.
II. Relevant Authority
Every criminal has a right to a trial by an unbiased, impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) A criminal defendant may move for a new trial on specified grounds, including juror misconduct. (§ 1181, subds. 3 & 4; People v. Ault (2004) 33 Cal.4th 1250, 1260 (Ault).) When a party seeks a new trial based on jury misconduct, the court undertakes a three-step inquiry. First, the court must determine whether the declarations offered in support of the motion are admissible under Evidence Code section 1150. If they are, the court must next consider whether the facts establish misconduct. Finally, assuming misconduct is found, the court must determine whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112–113; People v. Hord (1993) 15 Cal.App.4th 711, 724.) Juror misconduct raises a rebuttable presumption of prejudice, subject to proof no prejudice actually resulted. (People v. Pinholster (1992) 1 Cal.4th 865, 925.)
The California Supreme Court has held that “when a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it is constituted an abuse of discretion.” (Ault, supra, 33 Cal.4th at pp. 1255, 1272.)
III. Trial Court’s Order Must Be Affirmed
Given that the juror in question made an unauthorized visit to the scene of the crime and shared her observations with the rest of the jury panel, it is clear that misconduct occurred. As the trial court recognized, the issue of whether the new trial motion was properly granted hinges on whether defendant was prejudiced by this juror misconduct.
It is true that the trial court did not state its views on how defendant had been prejudiced and did not specifically state that defendant suffered prejudice. But the record shows that the trial court was aware that this was the key issue, and we can rely on the well-established principle “that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.” (People v. Mack (1986) 178 Cal.App.3d 1026, 1032; Evid. Code, § 664; see also Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Therefore, we decline to reverse the trial court’s order based solely on the trial court’s failure to state the manner in which the unauthorized crime-scene visit prejudiced defendant.
As noted previously, Ault held that the trial court’s determination that prejudice arose from juror misconduct and that a new trial is warranted is granted broad deference. (Ault, supra, 33 Cal.4th at p. 1265.) “[T]he trial court’s order granting a new trial will not be disturbed if fairly debatable, even if the reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. [Citations.] In particular, the traditional rule is that the reviewing court will not substitute its judgment for the trial court’s determination that error was prejudicial, and thus warrants a new trial. [Citations.]” (Id. at p. 1263.) The reason for the deference is based on the importance of the legal rights at stake and the consequences of an erroneous determination in the particular case. (Id. at pp. 1265–1266.)
After examination of the record, we conclude that the trial court’s order must be upheld. At a minimum, the record shows that the wayward juror placed defendant’s credibility at issue and asserted that her own credibility was more reliable than defendant’s, indirectly indicating that defendant was not telling the truth.
As noted, the People argue for the first time in their reply brief that E.’s statements constitute inadmissible hearsay and cannot be the basis for challenging the validity of a jury verdict and for granting a new trial. It is a disfavored practice to raise issues for the first time in a reply brief. (See, e.g., People v. Harris (1985) 165 Cal.App.3d 1246, 1257; People v. King (1991) 1 Cal.App.4th 288, 297, fn. 12.) In any event, neither the trial court’s ruling nor our conclusion that there was no abuse of discretion depends on the truth of juror E.’s statements.
Ault noted with approval the two-prong test for assessing prejudice that was set forth in People v. Nesler (1997) 16 Cal.4th 561 (Nesler). Whether there is a substantial likelihood of juror bias as a result of juror misconduct involving extraneous information depends on whether (1) the extraneous material is so prejudicial that it is inherently and substantially likely to have influenced a juror, or (2) if, from the nature of the misconduct and surrounding circumstances, the trial court determines that it is substantially likely a juror was actually biased against the defendant. (Id. at pp. 578–579.) The extraneous information in this case was the result of a juror’s unlawful investigation of a crime scene that led her to subsequently pit her beliefs against defendant’s testimony. This demonstrated at a minimum that this juror was less than impartial. (See Nesler, supra, at p. 583 [juror’s repeated reference to out-of-court information she had obtained established substantial likelihood that she herself rendered a verdict not based solely on evidence presented in court].)
We note that in both Sutter and People v. Martinez (1978) 82 Cal.App.3d 1, relied upon by the People, the trial court denied the defendant’s new trial motion. (Sutter, supra, 134 Cal.App.3d at p. 809; People v. Martinez, supra, at pp. 20–21.) The appellate courts in those cases conducted an independent review of the evidence to reach the conclusion that the trial courts were correct in their determinations that the defendants were not prejudiced by the juror misconduct. (Sutter, supra, at pp. 819–821; People v. Martinez, supra, at pp. 22–25.) In the instant case, our role is not to conduct a de novo review of the evidence but to assess the trial court’s decision employing a liberal abuse-of-discretion standard. (Ault, supra, 33 Cal.4th at p. 1265.) In such a case as this, where a juror’s misconduct affected the defendant’s rights of confrontation and cross-examination, we decline to find an abuse of discretion. (See Nesler, supra, 16 Cal.4th at p. 578.)
As stated previously, although the trial court did not make a detailed analysis of the prejudice caused, it was clearly aware that prejudice had to be shown. Its acknowledgement that the issue was a close one showed that it had considered the degree of prejudice suffered by defendant and decided to err on the side of caution, which was within its discretion. The fact that the trial court was aware of other factors, such as the fact that Harris was to be retried, reveals only that the trial court was also cognizant of the “constitutional policy against unnecessary and wasteful retrials.” (Ault, supra, 33 Cal.4th at p. 1271.) As stated in Ault, affirmance of an order granting a new trial simply endorses the trial court’s effort to fulfill its responsibility to protect the right to an impartial jury. (Id. at p. 1266.)
DISPOSITION
The order appealed from is affirmed.
We concur: BOREN, P. J. ASHMANN-GERST, J.