Opinion
A164035
07-19-2023
THE PEOPLE, Plaintiff and Respondent, v. CARLOS CANTU, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Francisco City &County Super. Ct. Nos. CT19003371, SCN230990)
BURNS, J.
Carlos Cantu appeals after a jury convicted him of committing lewd acts on a child under age 14 (Pen. Code, § 288, subds. (a), (b)(1)). Cantu asserts that the trial court abused its discretion and violated his constitutional rights by excluding certain impeachment evidence and by denying his motion for new trial based on purported juror misconduct. We conclude there was no prejudicial error and affirm.
Undesignated statutory references are to the Penal Code.
Background
A.
In October 2018, A.M., C.C., and their adopted 10-year-old daughter, N.C., lived together in an apartment, on the upper floor, of a four-story building. Cantu lived in a neighboring apartment. The prosecution's witnesses testified that the two families were acquainted but that N.C. had never spoken to Cantu before October 2018.
On October 28, 2018, N.C. and C.C. went grocery shopping and returned home around 9:00 that morning. N.C. began a load of laundry in the communal laundry room, on the first floor of the building, while C.C. took their groceries upstairs. The laundry room is connected to the garage, where the garbage bins are kept. While C.C. walked upstairs, she passed Cantu walking downstairs with two garbage bags.
N.C. testified that, after she put clothes and detergent into the washing machine, Cantu entered the laundry room. He was holding two bags of garbage. She moved closer to the washing machine-to allow him to pass behind her to the garage. He touched her hair, and she pushed him away. When Cantu returned to the laundry room (after throwing away his garbage), Cantu asked N.C. ," '[w]here's your mom?'" N.C. was scared and did not reply.
N.C. again moved out of the way, but she felt something behind her, turned, and saw that Cantu was standing "too close" right behind her. Feeling scared and uncomfortable, N.C. pushed him away. However, Cantu persisted in trying to get closer to N.C. He also touched her hair, her back, and her cheeks.
Cantu again put his hands on N.C. 's back and then around her waist. She felt his stomach pushed up against her back. He touched her cheeks again, tried to kiss her, and then swiped his hand across her chest-touching her clothes. She pushed him away again. When Cantu received a call on his cell phone, he turned to go. N.C. ran upstairs.
N.C. woke up A.M. and told him," '[y]our friend Carlos tried to touch me, to grab me.'" She was crying and trembling and said that she was scared. N.C. also said Carlos tried to hug her, and that she tried to defend herself by pushing him away. She did not mention Cantu trying to kiss her.
Next, N.C. told C.C. that Cantu tried to touch her," 'get really close to [her],'" and" 'grab [her].'" N.C. said," 'I was trying to defend myself.'" C.C. described N.C. similarly-as trembling, crying, and having a hard time talking.
C.C. and N.C. went to the building manager's apartment and learned of a surveillance camera in the laundry room. Once the video was located, C.C. recorded it on her phone. She then called the police. The video lacks sound, but otherwise corroborates N.C. 's testimony of what occurred in the laundry room. It was admitted and played for the jury.
The video differs (minimally) from N.C. 's testimony with respect to sequencing. Although N.C. did not testify about it, the video also shows Cantu walking to the entrance of the laundry room and looking down the hallway outside before his touching of N.C. escalated.
A.M. testified that he saw Cantu, about 45 minutes after the incident. A.M. asked Cantu if he touched or tried to grab N.C. Cantu seemed nervous, said that he" 'just touched [ N.C. 's] hair,'" and asked A.M. not to call the police. C.C. also testified that Cantu knocked on the family's door around 12:30 p.m. He asked C.C. not to call the police.
B.
Police officers responded to a dispatched report of an attempted kidnapping. N.C. told the officers that Cantu tried to hug her and answered affirmatively when asked if Cantu tried to kiss her. She had difficulty answering the officers' additional questions because she was still scared. Relying on her view of the surveillance video, C.C. helped explain the incident.
After watching the video from the laundry room, the officers believed Cantu committed a sexual battery and stopped their questioning. One of the officers explained that when children report alleged sexual assaults, responding officers take basic information, but leave an in-depth interview for later. The officers went to Cantu's apartment, but he was not there or at the restaurant where Cantu's family said he worked. Cantu was arrested in Oregon several months later.
N.C. was interviewed (on October 30, 2018) by a registered nurse, who was trained to conduct forensic interviews of children reporting abuse or other trauma. During the recorded forensic interview, which was played for the jury, N.C. described events that were generally consistent with what was captured on the surveillance video. However, N.C. demonstrated that Cantu swiped high on her chest (near her collarbone), rather than indicating that he touched her clothes over her breasts (as is shown on the surveillance video).
C.
Cantu testified, in his own defense, that he grew up in Mexico. He moved to San Francisco as a teenager. In October 2018, he was 29 years old and lived in an apartment with his extended family. His friend A.M. lived next door, with C.C. and N.C. Cantu said the two men listened to music, drank beer, and talked frequently. When he went to A.M.'s apartment, Cantu always greeted N.C.
He admitted touching N.C. on October 28, in the laundry room, after taking his garbage out, but denied touching her with any sexual intent. He was not sexually aroused, or intending to arouse or gratify himself, when he touched her.
Cantu woke up that day around 9:00 a.m. and was scheduled to work at 10:00 a.m. As he walked downstairs with his trash, he passed C.C., who was going up the stairs carrying bags. They exchanged greetings. When Cantu discovered N.C. in the laundry room, he greeted her and patted her hair-even though he admitted never having had a conversation with her before. N.C. did not respond. After throwing away his trash, Cantu returned to the laundry room, and found N.C. still there, putting clothes into a washing machine. Because N.C. looked sad and had not initially responded to his greeting, he asked her," 'what's wrong with you?'" She still did not respond.
Cantu admitted walking by N.C., toward the doorway, but said that he did not look out to see if anyone was coming. He simply returned to N.C. out of concern and because he was friends with her father. He touched her shoulder and asked what was wrong, but N.C. continued to ignore him. He then grabbed her shoulder and her chin "so she would look at [him] in the eyes." He denied wanting to or trying to kiss N.C. He also denied touching N.C. 's chest near her breasts. If he did, it was an accident.
Cantu explained that, in his culture, it is disrespectful for a child not to respond when an older person greets them. He only touched N.C. out of concern. Cantu denied that N.C. pushed, elbowed, or swatted his hand away. He also denied talking with either C.C. or A.M. later that day. Cantu testified that, after seeing N.C., he returned to his own apartment and went to work.
Later that same day, Cantu's cousin called and said that "agents" were looking for Cantu. Cantu thought they were immigration agents because he had been previously deported to Mexico. He decided to go to a friend's house in Richmond and then to Oregon, where he believed it would be harder for immigration agents to find him. He later learned that a warrant had been issued for his arrest based on the incident with N.C. in the laundry room. Despite believing that he had done nothing wrong, he did not return to San Francisco or turn himself in.
The defense also called Cantu's three sisters and his 13-year-old niece, who testified that A.M. and Cantu were good friends and that they had never seen Cantu act inappropriately with children.
D.
The only disputed issues at trial were (a) whether Cantu touched N.C. with the intent of arousing, appealing to, or gratifying his or N.C. 's sexual desires; and (b) whether Cantu used force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 288, subds. (a), (b)(1).)
The jury convicted Cantu of committing one lewd act on a child under 14 (§ 288, subd. (a)) and two forcible lewd acts on a child under 14 (id., subd. (b)(1)). Cantu was sentenced to an aggregate prison term of 10 years.
Discussion
A.
Cantu argues that the trial court abused its discretion (and violated his constitutional rights to confrontation and to present a defense) by excluding evidence about C.C.'s application for a U visa. We disagree.
1.
Before trial, Cantu's counsel asked to cross-examine C.C., and admit expert testimony, about her application for a U visa, which allows a noncitizen victim of certain crimes (and some family members) to temporarily remain in the United States (and later seek lawful permanent residence) if they are assisting law enforcement. (See 8 U.S.C. §§ 1101(a)(15)(U), 1255(m)(1); 8 C.F.R. § 214.14 (2023); People v. Villa (2020) 55 Cal.App.5th 1042, 1051, 1053 (Villa).) The People also moved to exclude any evidence about a U visa.
At the time the trial court heard the competing motions, it was undisputed that C.C. had filed such an application (no later than January 2019), and that her application remained pending. Defense counsel argued the evidence should be admitted because it was highly probative of C.C.'s motivation to lie. The prosecutor argued that the evidence was irrelevant (or only weakly probative). The prosecutor also raised an Evidence Code section 352 objection-arguing that, if relevant to C.C.'s credibility, admission of the evidence would consume an undue amount of time, confuse the issues, and lead to undue prejudice.
The trial judge granted the People's motion and denied Cantu's. The court acknowledged the evidence was relevant to C.C.'s credibility but explained that it nonetheless had limited probative value-given that C.C. did not witness the events in the laundry room and that the existence of the surveillance video significantly weakened any inference that C.C. was motivated to fabricate. Accordingly, the trial court concluded that the probative value of the U visa evidence was substantially outweighed by the evidence's undue consumption of time and its potential to confuse the issues.
2.
Generally, a defendant is entitled to cross-examine a witness regarding their motive or bias. (Evid. Code, § 780, subd. (f); Villa, supra, 55 Cal.App.5th at p. 1051.) Such cross-examination may include exploration of whether a witness has been offered (or expects) any benefits for their testimony. (People v. Brown (2003) 31 Cal.4th 518, 544 (Brown).) "However, the right to cross-examine a witness on potential bias, prejudice, or ulterior motive isn't absolute." (Villa, supra, at p. 1051.) Evidence Code section 352 grants a trial court broad discretion to exclude evidence to" 'prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.'" (People v. Ayala (2000) 23 Cal.4th 225, 301.) We review evidentiary rulings for abuse of discretion. (People v. Wall (2017) 3 Cal.5th 1048, 1069.)
The federal Constitution also guarantees criminal defendants a meaningful opportunity to present a complete defense (Nevada v. Jackson (2013) 569 U.S. 505, 509; California v. Trombetta (1984) 467 U.S. 479, 485), and the constitutional right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) However, trial judges retain wide latitude to impose reasonable limits on cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; accord, Brown, supra, 31 Cal.4th at p. 545.)
3.
The trial court did not abuse its discretion or infringe Cantu's constitutional rights.
Evidence showing C.C. applied for a U visa was relevant- because it tended to show her bias or personal motive for testifying. (Evid. Code, §§ 210, 780, subd. (f); Villa, supra, 55 Cal.App.5th at pp. 1050-1052.) However, the trial court reasonably concluded that the probative value of such evidence was substantially outweighed by the probability that introducing evidence (including competing expert testimony) about federal immigration law would confuse the jury and consume an undue amount of time. (See Evid. Code, § 352; Villa, supra, at p. 1052.)
In Villa, supra, 55 Cal.App.5th 1042, the Fourth District affirmed a trial court's decision to exclude evidence of a domestic violence victim's pending application for a U visa. (Id. at pp. 1047-1048.) At an Evidence Code section 402 hearing, the victim stated that she learned about the U visa program after she testified at the preliminary hearing. (Villa, at p. 1048.) The trial court recognized that the victim's application for a U visa was relevant, but also noted that it had limited probative value because the victim's testimony was corroborated by physical evidence and because the victim's trial testimony was essentially the same as the testimony received at the preliminary hearing- when she was unaware of the visa program. (Id. at pp. 10521053.) In these circumstances, the trial court reasonably balanced the limited probative value of the visa evidence against the" 'massive inquiry'" necessary to properly evaluate the victim's motivation, which would require an undue consumption of time and could prejudice the jury against a victim who was also undocumented. (Id. at pp. 1048, 1053.)
Cantu makes no explicit attempt to distinguish Villa, supra, 55 Cal.App.5th 1042, or even to grapple with the countervailing interests the trial court balanced in his case. However, he does insist that C.C.'s motive to lie or exaggerate was key-because she had the opportunity to influence N.C. and because C.C.'s own testimony conflicted with Cantu's in some respects.
The People concede that C.C. testified (in conflict with the defense case) that (a) the two families were not close and that (b) Cantu pleaded with her not to call police shortly after the laundry room incident. Nonetheless, we do not agree with Cantu that the excluded impeachment evidence has significant probative value because it supports his claim that he did not act with the requisite intent.
Any connection between C.C.'s motive to assist the prosecution and Cantu's theory that he touched N.C. with innocent intent is tenuous at best. Cantu's actions in the laundry room demonstrate his intent. And C.C. was not a witness to the events in the laundry room. N.C. 's testimony about what occurred there was corroborated, not just by the statements she made to C.C. minutes later, but (most importantly) by the surveillance video. On this record, we agree with the trial court that the proffered evidence regarding C.C.'s U visa application was not especially probative. The video evidence made it very unlikely that C.C. fabricated a story about Cantu to obtain a visa. (See Villa, supra, 55 Cal.App.5th at pp. 1052-1053 ["physical corroboration of [domestic violence victim's] testimony substantially reduced the likelihood that she had made up her story to obtain a visa"].)
And the trial court was reasonably concerned about the court time that would be needed to admit the U visa evidence, as well as its potential to confuse the jury. Defense counsel did not propose to simply ask C.C., on cross-examination, if she had applied for a U visa and thereby agreed to help with the prosecution of this case. Defense counsel also sought to admit expert testimony about the U visa program. Had the evidence come in, the People would also reasonably have sought to put on rebuttal witnesses-including their own expert to testify about the visa program, the status of C.C.'s application, and the requirements for eligibility. (See Villa, supra, 55 Cal.App.5th at p. 1053.)
The trial court did not abuse its discretion by excluding minimally probative evidence that would have created such a substantial risk for undue delay and confusion. (Villa, supra, 55 Cal.App.5th at p. 1053 [trial court's concerns about similar evidentiary complexities were well founded because the U visa detour "would 'take a huge chunk of time'" and would "bog[] the jury down in collateral issues"].)
In any event, even if we assume error, Cantu has not demonstrated prejudice. Defense counsel impeached C.C. in other ways. For instance, defense counsel highlighted the inconsistency between her trial testimony-that she spoke to Cantu on October 28, when he asked her not to call police-and the responding officers' testimony that they did not recall C.C. disclosing any such conversation. The defense also presented other evidence suggesting that C.C. might stand to benefit from her testimony.
A.M. admitted that he did not tell anyone about his October 28 conversation with Cantu until trial.
Most importantly, C.C.'s credibility was not critical in this case. And the key credibility contest-between N.C. and Cantu- was not close. The surveillance video not only corroborates N.C. 's account of what occurred in the laundry room but also plainly contradicts Cantu's testimony in several respects. It directly refutes his testimony that he only touched N.C. 's shoulder, hair, and cheek and did not try to kiss or grope her. The video also contradicts Cantu's testimony that N.C. did not try to defend herself by pushing him away several times. Furthermore, Cantu himself admitted having never previously had a conversation with N.C., as well as some evidence indicating his consciousness of guilt-in particular his abrupt decision to flee the state. On this record, it is not reasonably probable that a more favorable result would have been reached if the U visa evidence had been admitted. (See Villa, supra, 55 Cal.App.5th at p. 1054; People v. Watson (1956) 46 Cal.2d 818, 836.)
Nor has Cantu demonstrated a violation of his constitutional rights. A trial court's limitation on cross-examination does not violate the confrontation clause unless a reasonable jury would have obtained a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Quartermain, supra, 16 Cal.4th at pp. 623-624.) Given defense counsel's impeachment of C.C. in other ways (described above), a reasonable jury would not have formed a significantly different impression of C.C.'s credibility had she been further cross-examined regarding her U visa application.
B.
Cantu also argues that the trial court abused its discretion (and violated his constitutional rights to confrontation and to present a defense) by excluding evidence that C.C. and N.C. purportedly made prior "false" allegations about N.C. being molested. He is wrong.
1.
Evidence that a sexual assault victim has made a prior report of molestation or rape is relevant to the victim's credibility, but only if the prior allegation is "proven to be false." (People v. Miranda (2011) 199 Cal.App.4th 1403, 1424 (Miranda); accord, People v. Bittaker (1989) 48 Cal.3d 1046, 1097, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919.) Furthermore, the trial court retains discretion, under Evidence Code section 352, to exclude such evidence "if proof of the falsity of the prior complaint 'would consume considerable time, and divert the attention of the jury from the case at hand.'" (Miranda, supra, at p. 1424.)
2.
The prosecution moved to exclude evidence, pursuant to Evidence Code section 352, that N.C. stated (when she was four years old) she had been molested by her maternal grandmother's boyfriend, Cesar G. Defense counsel also moved to admit evidence of N.C. 's prior allegation along with testimony from both Cesar G. (that the accusation was false) and the maternal grandmother (that she had not observed Cesar G. acting inappropriately).
N.C. 's prior allegation was apparently never investigated by police but may have been investigated by child protective services. The allegation was also raised by C.C. during guardianship proceedings involving N.C. 's maternal grandmother. C.C. was ultimately granted sole legal and physical custody of N.C. in those guardianship proceedings.
The trial court excluded the evidence under Evidence Code section 352. It explained that the remote accusation was of minimal probative value (even if false) because of the video evidence corroborating N.C. 's account of what occurred in the laundry room and because Cantu did not deny that touching occurred-he merely disputed having acted with the requisite intent. The trial court also noted that opening this area of inquiry-whether a false accusation was made by then four-year-old N.C. almost 10 years ago-would require a trial within a trial, which would consume undue amounts of time and distract jurors.
3.
The trial court did not abuse its discretion.
First, Cesar G.'s denial is not conclusive or independent evidence proving that the prior allegation was false. Nor would the proposed testimony from the maternal grandmother be particularly helpful. It appears that the judge handling the guardianship proceedings did not believe the allegation was clearly false because the court's order required N.C. 's maternal grandmother to always remain present with N.C. during visitation. Absent a clear showing of falsity, evidence about the prior allegation would have little relevance to N.C. 's or C.C.'s credibility. (See Miranda, supra, 199 Cal.App.4th at p. 1425 [not an abuse of discretion for trial court to exclude social worker's conclusion that prior claim of sexual abuse was unfounded because "evidence showing a prior false complaint [was] uncertain"]; People v. Tidwell (2008) 163 Cal.App.4th 1447, 1458 ["[t]he value of the evidence as impeachment depends upon proof that the prior charges were false"].)
Second, any marginal relevance was further reduced by the existence of the video capturing Cantu's actions in the laundry room. Thus, the proffered "false allegation" evidence had limited to no probative value in this case.
On the other hand, admitting the prior allegation evidence would consume an undue amount of time and introduce jury confusion. Cantu insists that the evidentiary detour would be brief-that it would involve merely a few questions to Cesar G. and the maternal grandmother. However, he fails to acknowledge that the prosecutor would also counter Cantu's assertion that the earlier allegation was false by cross-examining the two defense witnesses and offering additional testimony from C.C. and N.C. (and perhaps any involved social worker). The potential for jury confusion was exacerbated by the fact that the prior molestation allegations came to light, almost 10 years earlier when N.C. was four years old, during a custody dispute bearing no relation to the instant charges. (Miranda, supra, 199 Cal.App.4th at p. 1426.)
The trial court reasonably concluded that the probative value of the earlier allegation evidence was minimal and substantially outweighed by its consumption of undue time and confusion of the issues. (See People v. Bittaker, supra, 48 Cal.3d at p. 1097; Miranda, supra, 199 Cal.App.4th at pp. 1425-1426; People v. Tidwell, supra, 163 Cal.App.4th at pp. 1456-1457.)
Because the trial court did not abuse its discretion under Evidence Code section 352, Cantu's constitutional claim also fails. (Brown, supra, 31 Cal.4th at p. 545 ["reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination"]; Miranda, supra, 199 Cal.App.4th at p. 1426.)
C.
Cantu contends the trial court erred-and thereby violated his constitutional right to trial by an impartial jury-by denying his new trial motion based on purported juror misconduct. We disagree.
1.
A criminal defendant has a fundamental constitutional right to a fair trial by an impartial jury. (See U.S. Const., 6th &14th Amends.; Cal. Const., art. I, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149; In re Hamilton (1999) 20 Cal.4th 273, 293.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is' "capable and willing to decide the case solely on the evidence before it." '" (Hamilton, supra, at p. 294.) "When even one juror lacks impartiality, the defendant has not received a fair trial." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1111.)
"[T]he pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law. But the voir dire process works only if jurors answer questions truthfully." (People v. Wilson (2008) 44 Cal.4th 758, 822.) Although a juror's intentional concealment of relevant facts during voir dire constitutes misconduct and raises a rebuttable presumption of prejudice (In re Manriquez (2018) 5 Cal.5th 785, 798 (Manriquez)), not every failure to disclose background information is treated similarly. (People v. Tuggles (2009) 179 Cal.App.4th 339, 371.) An unintentional mistake during voir dire cannot disturb a judgment unless there is evidence that the juror's false or incomplete answer hid their actual bias. (Manriquez, supra, at pp. 797-798; In re Hamilton, supra, 20 Cal.4th at pp. 295-296.) A" 'juror's good faith when answering voir dire questions is the most significant indicator that there was no bias.'" (Manriquez, supra, at p. 798.)
"Courts evaluate a motion for a new trial based on jury misconduct in three steps: (1) determine what evidence is admissible; (2) if there is admissible evidence, decide if it establishes misconduct; and (3) if there is misconduct, determine whether it was prejudicial." (People v. Flores (2021) 70 Cal.App.5th 100, 107.) A trial court exercises broad discretion at each step, and its rulings will not be disturbed absent a clear abuse of discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1260.) "We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination." (People v. Nesler (1997) 16 Cal.4th 561, 582; accord, People v. Leonard (2007) 40 Cal.4th 1370, 1425.)
2.
After the verdicts were entered, Cantu filed a motion for new trial, based on alleged juror misconduct (§ 1181, subd. 3). In support of his motion, Cantu provided a declaration from another juror (Juror No. 12), which states that Juror No. 7 openly discussed (for about five minutes during jury deliberations) "her personal experiences with sexual harassment." Specifically, Juror No. 7 said she was "touched" and "bumped into" by men, "in ways that were beyond her comfort level," while she worked in retail.
The trial court denied Cantu's motion for new trial. The court first explained that it was not convinced that Juror No. 12's declaration was admissible under Evidence Code section 1150. Assuming that the declaration was admissible, the trial court found that it did not demonstrate misconduct or indicate bias.
3.
Even if we assume (for the sake of argument) Cantu is correct that Juror No. 12's declaration was admissible under Evidence Code section 1150, we cannot agree with the second part of his argument-that Juror No. 7 committed misconduct either by concealing relevant information during voir dire or by sharing extraneous information (outside the evidence) during deliberations.
To demonstrate concealment, a defendant moving for new trial "bears the initial burden of showing that a juror did not disclose requested material information." (Manriquez, supra, 5 Cal.5th at p. 798, italics added.) The voir dire questioning must be "sufficiently specific to elicit the information which is not disclosed." (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.)
Here, the trial court's finding that Juror No. 7 did not conceal anything responsive to the voir dire questions is supported by substantial evidence. The jury venire was asked, in question 25 of the prospective juror questionnaire, "Have you, a family member, or a close friend been the victim of, or a witness to, a sexual crime committed against a child or an adult, or any violent crime whether or not the crime was reported to police?" (Italics added.) Crime is a loaded term, but it is defined nowhere in our record. Juror No. 7 never stated that she had been the victim of a sexual crime at work. Juror No. 12 indicated only that Juror No. 7 referenced "sexual harassment" and being "bumped" or "touched."
Juror No. 7 could have reasonably assumed that the question about sexual crimes did not seek the sort of offensive behavior she encountered in her retail job. And the record does not indicate that the jurors were asked about their personal experiences with sexual harassment. Substantial evidence supports the trial court's finding that Juror No. 7 did not conceal requested material information during voir dire. Thus, Cantu failed to meet his initial burden. (Manriquez, supra, 5 Cal.5th at p. 798.)
Moreover, there is no evidence of actual bias in the record. (See Manriquez, supra, 5 Cal.5th at p. 798.) In response to question no. 25 of the prospective juror questionnaire, Juror No. 7 stated that her mother had been sexually abused as a child and that a close friend had been assaulted-indicating Juror No. 7 answered the question in good faith. Juror No. 7 also repeatedly said she could be fair and decide the case on the evidence. Juror No. 12's declaration does not demonstrate that Juror No. 7 did otherwise.
Cantu is simply wrong in asserting that Juror No. 7 improperly exposed the other jurors to extraneous information outside the evidence. Juror 7 did not share extra-record information about the case. (See In re Lucas (2004) 33 Cal.4th 682, 696.) She shared her own personal life experiences, which is permissible. (See People v. Linton (2013) 56 Cal.4th 1146, 1195.)
4.
We also reject Cantu's alternative argument that the trial court abused its discretion by resolving his new trial motion without an evidentiary hearing.
A trial court has discretion to decide whether an evidentiary hearing is needed to determine the truth of jury misconduct allegations. (People v. Avila (2006) 38 Cal.4th 491, 604.) "Defendant is not, however, entitled to an evidentiary hearing as a matter of right....'The hearing 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 upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.'" (Ibid.)
Because no material factual dispute was presented, the trial court did not abuse its discretion in declining to hold an evidentiary hearing. We need not address Cantu's additional argument-that the cumulative effect of the trial court's errors requires reversal.
Disposition
The judgment is affirmed.
We concur: SIMONS, ACTING P.J., CHOU, J.