Opinion
B191050
4-25-2008
BLANCHARD E. TUAL, as ADMINISTATOR, etc., Plaintiff and Respondent, v. ROBERT BLAKE, Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Schacter, Judge. Conditionally modified and affirmed as so modified.
Law Offices of M. Gerald Schwartzbach and M. Gerald Schwartzbach for Defendant and Appellant.
Law Offices of Eric J. Dubin and Eric J. Dubin for Plaintiff and Respondent.
Robert Blake appeals a judgment awarding the administrator of the estate of his deceased wife, Bonny Lee Bakley, $30 million for her wrongful death. Blake challenges the admission of evidence, the failure to instruct the jury not to award punitive damages, the denial of his new trial motion on the ground of jury misconduct, and the amount of the damages award. We conclude that he has shown no prejudicial error in the admission of evidence, no instructional error, and no error in the denial of the new trial motion. We conclude further, however, that the award of $30 million in noneconomic damages is excessive and that a reduction to $15 million is appropriate, if the plaintiff consents to the remittitur. If the plaintiff does not consent, the judgment will be reversed for a new trial on the limited issue of the amount of damages.
FACTUAL AND PROCECURAL BACKGROUND
1. Factual Background
Blake is a actor who began acting as a child and performed in movies and on television for many years. He was single when he met Bakley in 1999, and they began a sexual relationship. Bakley lived in Little Rock, Arkansas at the time. She ran a mail-order business selling nude and seminude photographs of herself to older men and promising to meet them. She had three children and resided with Paul Gawron, whom she had married and divorced, but continued to live with. She was on probation and confined to the State of Arkansas.
Bakley visited Blake in Los Angeles for sexual liaisons. She also carried on a relationship with Christian Brando in the State of Washington during the same time period. She had a previous relationship with Jerry Lee Lewis and had named a daughter Jeri Lee Lewis after him.
Jeri Lee Lewis later changed her name to Debra Gawron.
Bakley once told Blake that she thought she was pregnant. Blake became upset and refused to speak with her. She later told him that she was not pregnant, and they reconciled. She assured him then that she was taking birth control and would not get pregnant. In fact, she was taking a drug to enhance her fertility, monitoring her fertility, and intended to conceive a child with Blake.
Bakley informed Blake at a later date that she was pregnant. Blake encouraged her to abort the pregnancy and offered to pay her $250,000 to do so, but she refused. Blake and Bakley visited a doctor together when she was three months pregnant. Bakley refused amniocentesis testing at that time. Blake then discontinued all contact with her and changed his phone numbers. He testified at trial that he was convinced at the time that Brando was the father.
Bakley gave birth to a baby girl in June 2000 and named the child Christian Shannon Brando. Bakley told her daughter Holly Gawron, with whom Bakley was living at the time in Little Rock, that she selected that name to make Blake jealous. She later changed the name to Rosie Lenore Sophia Blake. Blake saw the baby shortly after she was born, during Bakleys visit to Los Angeles, and his attitude changed. A DNA test performed in September 2000 confirmed that Blake was the father.
Blake sought to obtain custody of the child. William Jordan, a private investigator hired by Blake, suggested that Blake encourage Bakley to leave the baby with Blake for a few days and that Blake not return the child. Accordingly, during Bakleys visit in September 2000, Blake suggested leaving Rosie at his house in Studio City with an associate who was posing as a nurse while he and Bakley went out to eat. Earle Caldwell, described as Blakes handyman and bodyguard, hid under the steps to be present in case things went wrong. After Blake and Bakley left the house, Blake called the "nurse" and told her to take the baby to her own home. She complied. Blake later met with her, recovered the baby, and took the baby to his adult daughters home.
Jordan reported Bakleys probation violation to her probation officer. Her probation officer called Bakley at her hotel and told her to return to Arkansas, which she did, leaving the baby behind. Bakley later returned to California, with permission from her probation officer, in an attempt to recover the baby. She filed a police report against Blake. In October 2000, Blake and Bakley agreed to get married. Blake informed Bakleys probation officer that he and Bakley were negotiating a prenuptial agreement, that the baby would stay in Los Angeles, and that Bakley would return to Arkansas to complete her probation period, which ended in late January 2001. Meanwhile, Blake contacted other people with law enforcement connections in an effort to prevent Bakley from recovering custody of the baby.
Blake and Bakley married in November 2000. She continued to live with Holly Gawron in Little Rock until January 2001. When she left Little Rock, she drove first to Memphis, Tennessee and other places before arriving in California in approximately April 2001. She and Blake then went on a driving trip, accompanied by Caldwell. After the trip, Bakley moved into the back house behind the front house in which Blake resided.
Blake and Bakley ate dinner together at Vitellos Restaurant in Studio City on May 4, 2001, within one week after they returned from the trip. They drove there in Blakes small coupe from his house nearby and parked on the street approximately 10 to 12 feet behind a trash dumpster. They entered the restaurant and sat in a booth. Blake was carrying a gun and put it on the seat beside him under a sweatshirt. The dinner itself was uneventful. They left the restaurant together at approximately 9:30 p.m. The events occurring afterwards are explained in further detail post.
Bakley was found in the passenger seat of Blakes car with gunshot entry wounds to her right cheek and right shoulder. She was 44 years old at the time of her death. The murder weapon, a German Walther P38 pistol, was found in a landfill the next day after the contents of the dumpster were emptied there. Blake was arrested and prosecuted for murder and solicitation of murder. He was acquitted of the murder count and one solicitation count, and the other solicitation counts were dismissed.
2. Trial Court Proceedings
Blanchard E. Tual, as administrator of the Bakley estate, filed a complaint against Blake and Caldwell in April 2002, alleging a single count for wrongful death. The first amended complaint filed in May 2002 alleges that the defendants conspired to kill Bakley and shot her to death on May 4, 2001.
Blake filed motions in limine to exclude evidence of statements made by Bakley regarding her fear of Blake and audio recordings of her phone conversations with Blake. He argued that Bakleys statements were inadmissible hearsay and that the recordings were illegally obtained, inadmissible under Penal Code section 632, and could not be authenticated. The court stated in a written tentative ruling that evidence of Bakleys statements was admissible to show that she made the recordings because she feared that Blake would commit a violent crime against her, pursuant to Penal Code section 633.5, and that the evidence fell under the exception stated in Evidence Code section 1251 relating to the declarants state of mind. The tentative ruling stated further that any recordings must be authenticated before their introduction in evidence and that the recordings by Bakley were admissible if the plaintiff satisfied the foundational requirements of Penal Code section 633.5. The court apparently denied the motions in limine, although no written order or oral statement adopting the tentative ruling as the order of the court appears in the appellate record.
The jury trial began in September 2005. Blake testified as follows: He and Bakley returned to the car after dinner and rolled down the windows. He quickly realized that he had left his gun in the restaurant, threw his keys on the floor of the car, and ran back to the restaurant. He entered by the front door, told the busboys at the counter that he had forgotten something, found the gun on the floor under the dinner table, put it in his pocket, and left by the front door. He returned to his car, opened the door and retrieved his keys from the floor, and then noticed that Bakley was slumped on the center console and appeared to be sleeping. He spoke to her, and shook her when she did not respond. Then he noticed blood, closed the car door, and ran for help.
Blake testified further that he knocked on the door of a house across the street, but no one answered. He knocked on the door of a second house, and a man, Sean Stanek, came to the door. Blake said, "Call 911. My wife has been hurt." Stanek called 911. Blake returned to the restaurant and asked for a doctor. A restaurant worker offered him a glass of water, and he sat down. A nurse appeared from inside the restaurant and went out to the car. Blake followed. Paramedics arrived soon afterwards. Blake moved away from the car and towards the dumpster, where he vomited.
Witnesses observed Blake upon his return to the restaurant after the 911 call and back at the car, and testified as to his demeanor. Some witnesses testified that he appeared genuinely shocked, while others, including police witnesses who observed Blake at the scene or later at the police station, stated that he appeared insincere and noted that he cried without tears.
Frank Minucci
Frank Minuccis testimony from Blakes criminal trial was read to the jury. He testified as follows: Minucci is a former "street guy" who "ran numbers, after hours joints, loan sharking" and "a lot of bad guy stuff," until he met his wife, found God, and became a minister. A book was written about him, and he became an actor and performed the role of a mafia boss in Carlitos Way (Universal Pictures 1993). He had spoken with people about writing a screenplay based on the book about him. His agent told him that Blake wanted to speak with him, and he agreed to give Blake his phone number. They spoke by phone from his home in New York to Blakes home in California at least once a month and sometimes more often, beginning in late 1998 or early 1999, for about a year and a half. They discussed their childhoods, war stories, and their problems and concerns, and prayed together by phone, sometimes for over an hour.
Minucci testified that Blake once sent him $500 cash in an envelope and then another $500 and said that he had something for Minucci to do. Blake complained about a woman in New York who Blake would break up with and then get back together with again, said that she was a "`fing bitch" who was "`doing filthy things," and said that he wanted her phone number changed, that Minucci should scare her, and that he did not care how Minucci did it. Minucci and Cockeyed Ralphie, a friend of his "from the old days," called the woman from a public phone and threatened her with sexual violence, but she foiled them by talking dirty and inviting them over. When Minucci reported this to Blake, Blake hung up on him, but later told Minucci to leave her alone.
Minucci testified further that Blake called back several weeks later. Minucci testified:
"He said that he had a house in the back of his house. He had something really heavy for me to do. He said that he would give me a blank check signed, all right, and he was screaming about some broad that got him by the balls. Shes saying the kid is his. . . . And I said to him, `Bobby, what are you talking about? You want me to whack somebody.
"`I dont want to talk about it on the phone. He says he dont want to talk about it on the phone.
"And I said, `If youre talking about whacking somebody, you got the wrong guy. I dont do these things anymore.
"He says, `I want the guy in Carlitos Way. I know you. Thats the guy I want. He says, `I will pay you good money. You will never get money like that."
Minucci testified that when he suggested marrying the woman, Blake responded, that he would annihilate her, and "`Fucking marry her? I will kill her and the kid. That aint my kid. "Blake never referred to the woman by name. Sometime later, Blake told him that he had to "marry the bitch" and invited Minucci and his wife to California. Minucci never made the trip. He testified that Blake told him, "`She is a pig. I dont know why I get involved with whores and pigs, he says, `Theyre all the same."
Blake denied asking Minucci to intimidate a woman in New York, sending him $500, telling him that he had "something really heavy for him to do," telling him that "some broad" had him "by the balls," or discussing Bakley with him at all. Blake also denied other statements made by Minucci and stated that their conversations were very few and brief. A telephone company investigator testified that from the period July 1998 through July 2000, only eight calls were made from Minuccis phone number to Blakes phone numbers and that two of the calls were billed for three minutes and six for one minute each. He testified that the first call was made on April 3, 1999, and the last was made in April 2000. He testified that only three calls were made from Blakes phone numbers to Minuccis phone number, the first on April 3, 1999, billed for one minute, the second on April 19, 1999, billed for one minute, and the third also on April 19, 1999, billed for 17 minutes.
Gary McLarty
Gary McLarty is a former stuntman who worked with Blake in the 1970s. McLarty testified as follows: McLarty once killed a man in self-defense at his ranch in the mountains by shooting him "[f]ive or six times." Another stuntman who worked as a gopher for Blake contacted McLarty and stated that Blake needed some assistance regarding someone who was bothering his family. McLarty and Blake then met at Du-pars restaurant. After brief small talk, Blake asked about the shooting in the mountains. Blake then stated that he was having a problem with a woman, and the two drove together to Blakes house in Studio City.
McLarty testified that Blake stated that the woman had a baby and was "milking" him for money, showed him a nude picture of a woman, and referred to her mail-order business. Blake showed him a small gun in a zippered pouch and asked if McLarty could get a silencer. Blake showed McLarty where he said the woman slept in the back, explained how to gain entry, and stated that the door would be left unlocked and that someone could "go in there and pop her," or words to that effect. Blake also said that it could happen in Laughlin down by the water where someone could hide as he and the woman walked by, by the side of a highway where Blake could stop to urinate, or in a car after he and the woman returned from a restaurant. After Blake and McLarty returned to the restaurant where they had met, McLarty asked how much money Blake was talking about, and Blake stated $10,000. When Blake called McLarty a few days later, McLarty declined to do the job. McLarty reported his meeting with Blake to the police 10 days after the murder.
On cross-examination, Blakes counsel read McLartys testimony from the criminal trial admitting that he was hospitalized for heavy cocaine use only weeks before his meeting with Blake, that he used marijuana and cocaine regularly at the time, and that while under the influence of cocaine he once believed that people were tunneling under his house. He testified in the criminal trial that while under the influence of drugs he believed that he could read peoples minds, that satellites flying over his ranch were observing him, and that his car, home, and cellular phone were bugged. McLarty also acknowledged that while under the influence of cocaine in recent years he believed that people were after him, and that he once crawled on his belly part of the way from his house to a neighbors to avoid detection by people who he thought were after him.
Ronald Hambleton
Ronald Hambleton is a former stuntman who worked with Blake in the 1970s. His testimony from the criminal trial was read to the jury. He testified as follows: Hambleton met with Blake at Du-pars restaurant on March 12, 2001. The meeting was arranged by Snuffy Harrison. A friend accompanied Hambleton to the meeting. Hambleton believed that the meeting concerned a script that he had written. At the restaurant, Blake asked to meet privately with Hambleton. The two left in Blakes car leaving Hambletons friend at the restaurant. Blake and Hambleton drove to another restaurant. Blake spoke of problems with his wife, said that she had a bad background, and said that she was the mother of his child. Blake rebuffed Hambletons attempts to discuss the script and spoke of getting rid of his wife.
Hambleton testified that they left the restaurant together and drove by Blakes house. Blake stated that the act could take place while he and Bakley walked home from Vitellos, or when they arrived or left the restaurant in a car. They drove around the neighborhood for 30 to 45 minutes. Hambleton tried to dissuade Blake and suggested talking with Bakley and offering her money, which agitated Blake. Blake said that he would contact Hambleton but did not wish to call from his own phone. Hambleton suggested that Blake purchase a calling card because a call using the card could not be traced. Blake stopped at a convenience store and purchased a calling card.
Hambleton testified further that they visited Blakes house and Blake showed him a small gun in a zippered case and offered it to him, saying that is was untraceable. Hambleton declined. Blake stated that Hambleton could enter the back house and wait for his wife to return, or that Blake could call to make sure that she was there, and Hambleton could go upstairs and find her there. Blake said that he could leave the iron gate open, suggested an escape route, and later pointed it out from the car. At the end of their meeting, Hambleton told Blake that he had a pending criminal case and could not get involved in a crime.
Hambleton testified that he and Blake met a second time at the end of March 2001 in Pearblossom, a town midway between Los Angeles and Hambletons home. Blake spoke of getting rid of his wife, suggesting locations such as the Grand Canyon, a motel along the route back to Los Angeles, Laughlin, Nevada, or a campsite. They later met in Pearblossom again, at Blakes request. Blake told Hambleton that Bakley was back in Los Angeles, and seemed agitated and eager to get rid of her. Blake stated that Hambleton could hide out in Blakes van while he and Bakley returned from Vitellos, and stated that he had a friend who would already have the holes dug. Hambleton was surprised that Blake was speaking of more than one hole, and stated, "Oh, youre talking about Earle digging the holes?" Blake responded, "`How did you know about Earle?" Hambleton stated that Blake had mentioned the name earlier. Hambleton made it clear at the end of that third meeting that he would not participate in the crime. Blake insisted that he would do it without Hambleton because he could not allow his daughter to grow up in an environment of child pornography.
Hambleton testified that Blake called him on the afternoon of May 4, 2001, and asked whether he was sure that a calling card call could not be traced. Hambleton stated that he had confirmed that that was true of his calling card, but that Blake should call the calling card company to confirm that it was true of Blakes. After the murder, Hambleton was reluctant to tell the police what he knew because he feared for his own safety.
Hambleton testified that he had used methamphetamines but stopped using them after a medical incident in 1999. Another witness who resided on his property on and off between 1990 and July 2000, however, testified that she observed Hambleton using methamphetamines daily throughout that period and that the drug was manufactured in a pool house on his property. She testified that Hambleton became paranoid and very talkative when he was on methamphetamines and believed that the police or the FBI were after him and in the bushes watching him.
After several weeks of testimony and approximately two weeks of deliberations, the jury returned a verdict on November 18, 2005, finding that Blake had intentionally caused Bakleys death and that Caldwell did not conspire with Blake to cause Bakleys death. The jurors vote in favor of Blakes liability was 10 to 2. The jury awarded the plaintiff $30 million in present and future noneconomic damages. The jurors vote in favor of that amount of damages was 9 to 3. Several jurors participated in a press conference outside the courthouse after the trial was concluded.
The court entered a judgment on the jury verdict in February 2006. Blake moved for a new trial based on jury misconduct, erroneous admission of evidence, instructional error, and excessive damages. He filed declarations by three jurors in support of his claim of jury misconduct. The plaintiff opposed the motion and filed declarations by five jurors and two alternates stating, in general, that there was no prejudicial misconduct. The court denied the new trial motion in a minute order without explanation. Blake timely appealed the judgment.
CONTENTIONS
Blake contends (1) the court erred by admitting evidence of Bakleys hearsay statements regarding threats made by Blake, audio recordings of her phone conversations, and lay opinion testimony; (2) the failure to give Blakes proposed instruction not to award punitive damages was error; (3) jurors committed prejudicial misconduct by concealing information during voir dire, discussing the case and forming an opinion before deliberations began, failing to inform the court that a juror could not hear a large part of the testimony due to a hearing impairment, invoking the Bible to support a finding of liability, intimidating and tricking a juror to cause him to vote for liability, and relying on considerations outside the evidence and instructions in determining the amount of damages; and (4) the $30 million award of noneconomic damages is excessive.
DISCUSSION
1. Evidence of Bakleys Statement Regarding Blakes Threat Was Not Hearsay
a. Trial Testimony
Holly Gawron testified on direct examination by plaintiffs counsel that Bakley was afraid that Blake would harm her. Counsel then asked how Bakley indicated that she was afraid, eliciting a hearsay objection by Blakes counsel. The court overruled the objection and referred to the denial of the motion in limine. The witness then testified that Bakley stated while she was pregnant that Blake had told her that he had a bullet with her name on it. Bakleys son, Glenn Gawron, also testified that he and Holly Gawron both were present one day in November 2000 when Bakley got off the phone and stated that Blake had threatened her by saying that he had a bullet with her name on it.
b. Hearsay Rule
Evidence of an out-of-court statement offered to prove the truth of the matter stated is hearsay. (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible unless an exception the to the hearsay rule applies. (Id., subd. (b).) Evidence of Bakleys statement to her children regarding Blakes threat that he had a bullet with her name on it was hearsay only if the evidence was offered to prove that he made the threat. The trial court determined that the evidence of Bakleys statement was admissible for another purpose, to prove Bakleys state of mind in order to establish a foundation for the admission of audio recordings. We review a ruling by the trial court on the admissibility of evidence for abuse of discretion, including the overruling of a hearsay objection based on a determination that the evidence was not hearsay. (People v. Alvarez (1996) 14 Cal.4th 155, 203.)
c. The Evidence Was Properly Admitted for a Nonhearsay Purpose
Penal Code section 632 prohibits the intentional eavesdropping or recording of a confidential communication without the consent of all parties to the communication, and states that no evidence obtained as a result of a violation of the section is admissible in any action other than an action for violation of the section. (Id., subds. (a), (d).) Penal Code section 633.5 states that section 632 and other sections do not prohibit a party to a confidential communication from recording the communication "for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m." Thus, the recording of a confidential communication by a party to the communication who reasonably believes that the recording relates to the commission of any of the referenced crimes and who makes the recording for the purpose of obtaining evidence relating to such a crime does not violate section 632, and such a recording is not made inadmissible by section 632.
The admissibility of a recording of a confidential communication made under the circumstances described in Penal Code section 632 therefore depends on whether the party recording the communication reasonably believed that the recording related to the commission of any of the referenced crimes and made the recording for the purpose of obtaining evidence relating to such a crime. (Id., § 633.5.) These are preliminary facts that must be shown to exist in order to establish the admissibility of the proffered evidence of a recording. (See Evid. Code, §§ 400, 401.) Evidence Code section 402 establishes a procedure to determine the existence of preliminary facts for the purpose of determining the admissibility of evidence. Section 402, subdivision (b) grants the court discretion to hear and determine such preliminary facts out of the presence of the jury. The court here had the discretion to require any evidence relating to the preliminary facts described ante, including evidence of Bakleys statement made to her children, to be presented out of the jurys hearing.
Evidence Code section 402, subdivision (b) states, "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . ."
Blake did not request that the evidence of Bakleys statement to her children regarding Blakes threat be presented to the court out of the jurys hearing and does not argue on appeal that the evidence should have been so presented. He also does not argue on appeal that the evidence should have been excluded under Evidence Code section 352 because the danger of undue prejudice substantially outweighed any probative value. Instead, he argues only that the evidence of Bakleys statement to her children was inadmissible hearsay.
An out-of-court statement concerning a matter heard or observed by the declarant can be circumstantial evidence of the declarants state of mind. (See 1 Jefferson, Cal. Evidence Benchbook (3d ed. 2007) § 1.30, p. 21.) In particular, a statement that another person threatened the declarant tends to support an inference that the declarant was fearful as a result. In these circumstances, such a statement is not offered to prove that the threat was made, but to prove that the declarant was fearful. Bakleys apprehension that she would be the victim of a violent crime perpetrated by Blake was relevant to the admissibility of the recordings, as we have stated. A party is entitled to a limiting instruction upon request if evidence is admissible for one purpose and inadmissible for another purpose. (Evid. Code, § 355.) Blake requested such an instruction at the time the court denied his motion in limine, and the court stated that Blake should submit a proposed instruction. There is no indication in the appellate record, however, that Blake ever presented a proposed instruction on point, and no such limiting instruction was given.
We conclude that the evidence of Bakleys statement to her children was not hearsay because it was offered to prove not that Blake had threatened Bakley, but that Bakley reasonably believed that the recording of her phone conversation with Blake related to the potential commission of a violent crime against her. Because the evidence was not hearsay, the overruling of Blakes hearsay objection was not an abuse of discretion.
Blake argues that the challenged evidence was not admissible under Evidence Code section 1250. Section 1250 establishes an exception to the hearsay rule for evidence of a statement of the declarants then-existing state of mind, provided that the declarants state of mind is an issue in the action or the evidence is offered to explain the declarants conduct. (Id., subd. (a).) We need not decide whether the evidence of Bakleys statement regarding the threat made by Blake fell within the hearsay exception established by section 1250 because we conclude that the evidence was not hearsay, as we have explained.
Evidence Code section 1250, subdivision (a) states: "Subject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant."
2. Blake Has Shown No Error in the Admission of the Audio Recording
Plaintiffs counsel played an audio recording of a phone conversation between Bakley and Blake twice during the trial. The recording was admitted in evidence, but was not included in the appellants appendix and has not been provided to this court in response to our requests to counsel. No written transcript of the recording is included in the appellate record. Blake contends the recording depicts his anger with Bakley for becoming pregnant and his request that she terminate the pregnancy.
Blake argues on appeal that the recording was inadmissible because the evidence of Bakleys statement regarding Blakes threat that he had a bullet with her name on it was hearsay and therefore could not establish the foundation necessary to satisfy Penal Code section 633.5. We reject the argument that the evidence of Bakleys statement was hearsay, as stated ante. Blake argues further, "The court also cited no justification for the suggestion that Ms. Bakleys tape recording in 1999 would somehow be relevant to events in May 2001, even though it contained no threat by appellant to commit an act of violence toward her." We conclude that the recording admitted in evidence was relevant because Blakes anger with Bakley tends to show that he had a motive to intentionally cause Bakleys death.
Blake also argues against the trial courts tentative ruling that there is no expectation of privacy regarding a conversation by cellular or cordless phone and that any recording of such a conversation therefore was admissible. The court tentatively denied Blakes motion in limine based in part on Blakes failure to show that the recorded calls were not made by cellular or cordless phone. To support a claim of error in the admission of evidence, Blake must show that he timely asserted a specific objection and that the evidence should have been excluded on the ground stated. (Evid. Code, § 353.) Because he has not shown that the recording should have been excluded on a ground stated in the motion in limine or at trial, we need not decide whether the recording was admissible based on the alternative ground asserted by the trial court in its tentative ruling.
3. Blake Has Shown No Prejudicial Error in the Admission of Lay Opinion Testimony
a. William Welch
William Welch was a private investigator and a former homicide detective with the Los Angeles Police Department. He testified on direct examination by plaintiffs counsel that Blake first hired him to do investigative work in approximately 1988 or 1989. Welch testified that Blake called him sometime after October 1999, that they met and took a walk together, and that the following conversation occurred: Blake told him that he had met a woman, had a one-night stand with her, and that she later told him that she was pregnant. Welch suggested that Blake pay her some money to "go away." Blake stated that he had offered her money. Welch stated that he Blake should offer her more money, and suggested $100,000. Blake stated that he had tried that, that it did not work, and that he had another plan.
Welch testified that Blake then stated "that he wanted to abort her, and if that didnt work, he wanted to whack her." When asked what he understood that statement to mean, Welch answered: "Well, I asked Robert and I said, `You mean to tell me that were going to kidnap this girl, were going to abort her, and if that doesnt work were going to kill her?" Welch testified that Blake responded, "`Yes, I thought about it, and thats what were going to do." Welch testified that he responded, "`Robert, are you out of your fucking mind?" Welch testified that Blake stated that Blake had made up his mind to proceed, and that Welch insisted that Welch would not be involved and encouraged Blake not to go through with it. Welch testified that Blake called him the next morning and stated that he had changed his mind and was not going to do what he had said.
Blake testified at trial that he did not make such a statement to Welch.
Welch testified that he met with Blake again in June 2000, and that Blake showed him photographs of a nude woman and told him that Bakley was in the mail order pornography business. He testified that Blake also showed him a birth certificate bearing the name Christian Shannon Brando, and that Blake stated that he had seen the baby and knew that the baby was his. Welch testified that Blake stated that he wanted to raise the child, and that Welch suggested that they should investigate Bakley. Welch testified that he learned through a private investigator in Arkansas that Bakley was on federal probation and was restricted to the State of Arkansas. He testified that Blake stated that Bakley was in California at the time. Welch testified that he suggested contacting Bakleys probation officer to report a probation violation, which could result in her imprisonment, but that Blake stated that it would not succeed because Bakley was having intercourse with her probation officer.
Welch testified that he met with Blake again in approximately September 2000 and that Blake suggested planting cocaine in Bakleys hotel room and then having her arrested. Welch testified that he rejected the idea. Welch testified that in a subsequent meeting in late September or early October 2000, Blake suggested that Blake would plant cocaine on Bakleys person and then signal Welch to call in the police to have her arrested. Welch testified that he rejected that idea too. He testified that Blake asked him to turn over his file to Blakes civil attorneys in November 2000, and that he did so. He testified that Blake contacted him for the last time when Blake called on a Sunday morning in February 2001 asking for the home phone number of attorney Robert Shapiro. Welch testified that he suggested waiting until Monday, but that Blake insisted, and that Welch obtained the phone number and provided it to Blake a couple of hours later.
Welch testified that he became fearful for his own personal safety and that of his family after learning of Bakleys murder. Specifically, he testified that he feared Blake.
Blakes counsel asked Welch on cross-examination whether he believed at the time he was working for Blake that Blake "had the capacity to go out and kill someone." Welch answered that he did not believe that at the time. He stated further: "I didnt know. I had seen a lot of homicides committed by people who you didnt think could commit a homicide." Blakes counsel also asked: "In the period of time you worked for Mr. Blake, you never considered him to be a potential killer, did you, sir?" Welch answered: "Boy, thats a tough one. I probably dont, did not believe it at the time, and Im not sure I do right now."
On redirect examination, plaintiffs counsel asked: "At the time that you were working for him, you did not know he was a potential killer. As we sit here today and you know everything you know now, do you believe Robert Blake killed Bonny Lee Bakley?" Blakes counsel objected on the ground of relevance. The court overruled the objection, stating, "He opened up the door." The plaintiffs counsel asked again: "Do you have any opinions whether Robert Blake was involved in the murders of Bonny Lee Bakley or pulled the trigger or hired someone to do it for him?" Blakes counsel objected again on the ground of relevance. The court stated: "You asked if he could be the potential killer. So it opened up the door." Welch then answered: "I think, I think Robert could be a potential killer, and I think he probably could have hired it done also."
A lay witness may express an opinion that is rationally based on his or her personal observation, but only if the opinion is helpful to a clear understanding of the witnesss testimony. (Evid. Code, § 800; People v. Hinton (2006) 37 Cal.4th 839, 889.) Lay opinion testimony is helpful to a clear understanding of the witnesss testimony "`where the concrete observations on which the opinion is based cannot otherwise be conveyed." (Hinton, supra, at p. 889.) Error in the admission of evidence is reversible only if there was a timely and specific objection to the evidence, the objection should have been sustained and the evidence excluded, and the error resulted in a miscarriage of justice. (Evid. Code, § 353.)
"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800.)
Bakleys death and the Blake murder trial received a considerable amount of media attention. The question by plaintiffs counsel on redirect examination as to Welchs opinion based on his knowledge at the time of trial was not limited to his knowledge based on personal observation, and was likely to elicit an answer based in part on unreliable information and punditry. Moreover, in our view, Welchs opinion as to whether Blake was responsible for Bakleys death did not help to explain his other testimony and was not helpful to a clear understanding of his testimony, as required by Evidence Code section 800. In any event, Welchs opinion that Blake might have been responsible for Bakleys murder added little to his testimony regarding Blakes stated plan to kill Bakley and his testimony that he feared for his own safety and that of his family after learning of the murder. We therefore conclude that no miscarriage of justice resulted from the admission of his opinion. (Evid. Code, § 353, subd. (b).)
b. Lisa Johnson
Lisa Johnson was Caldwells girlfriend. She testified on direct examination by plaintiffs counsel that Caldwell worked for Blake full time for many months before the murder and that Caldwell told her that he sought to discover Bakleys vulnerabilities so as to get her out of Blakes life. She testified that Caldwell was secretive and "constantly troubled" and that he told her that Bakley was "scum" and "a bitch." She testified that Caldwell told her in October 2000 that he was going to Arkansas to plant drugs on Bakley so as to cause her arrest on a parole violation, and that he informed her later that the trip was unsuccessful because someone in Arkansas failed to cooperate.
Caldwell denied making this statement.
Johnson testified that Caldwell called her on May 1, 2001, and stated that he had to leave town, that he was going up north to visit his mother, and that he did not know when he would return. She testified that when she asked why, he stated that he needed her to be a friend and not ask questions. She testified that the next time she spoke with Caldwell was when he called her on May 5, 2001, the day after Bakley was murdered. She testified that he asked her to remove from his apartment his computer, every piece of paper that she could find, every phone number on the bulletin board, every compact disc, a box of sweatshirts made for Blake bearing the slogan "Says Who," an Altoids tin in the refrigerator, and a brown glass bottle on the window sill. She testified that he asked her to dispose of the tin and the bottle and their contents, that she did so, and that the tin contained a "brown, clear, white, rocky substance." She testified that she found a card from Caldwells wife dated a month earlier stating, "I miss you and I love you," concluded that he had been lying about his estrangement from his wife, and ultimately broke up with him. Johnson testified that when Caldwell returned, he emptied a box of materials that she had collected onto the bed in her apartment and told her to leave the room.
Johnson acknowledged on cross-examination that when Caldwell called her on May 5, 2001, he told her that he was completely surprised by the murder, and that she believed him. On redirect examination, plaintiffs counsel asked, "Do you believe Earle Caldwell planned with Robert Blake to kill Bonny Lee Bakley?" Blakes counsel objected that her opinion at the time of trial was irrelevant. The court overruled the objection. Plaintiffs counsel then asked again, "Putting aside who actually pulled the trigger, do you believe Earle Caldwell planned with Robert Blake to cause the wrongful death of Bonny Lee Bakley?" Blakes counsel objected, "The preamble is argumentative." The court overruled the objection. Johnson answered, "Yes."
The question whether Johnson believed that Caldwell and Blake planned to kill Bakley called for her opinion without regard to whether that opinion was based on her personal observation or on other information that she gleaned through the media or other sources. Moreover, in our view, Johnsons opinion as to whether Caldwell and Blake planned to kill Bakley did not help to explain her other testimony and was not helpful to a clear understanding of her testimony, as required by Evidence Code section 800. In any event, in light of the evidence of Blakes and Caldwells behavior toward and feelings about Bakley, the admission of Johnsons opinion that they planned to kill Bakley was not so significant as to result in a miscarriage of justice. (Evid. Code, § 353, subd. (b).)
4. Blake Has Shown No Instructional Error
Blake requested an instruction pursuant to BAJI No. 3924, stating that any damages award must be compensatory only and must not include punitive damages. The court instructed the jury on the measure of damages for wrongful death, but did not expressly instruct the jury not to award punitive damages. The reason for the courts failure to instruct on BAJI No. 3924 does not appear in the appellate record. The conference on jury instructions was not reported, and no final set of written instructions showing the instructions given and refused appears in the record. There is no indication on Blakes proposed instruction or elsewhere in the record that the court refused the instruction. Moreover, Blake does not argue that the court refused the instruction, but only that the court "failed . . . to give" the instruction.
Punitive damages are not recoverable in a wrongful death action (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 829) unless the defendant has been convicted of a felony homicide in the decedents death (Civ. Code, § 3294, subd. (d)).
An appellant has the burden to provide a record sufficient to support its claim of error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Absent an indication in the record that an error occurred, we must presume that there was no error. (Walling v. Kimball (1941) 17 Cal.2d 364, 373-374; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the courts rulings on proposed instructions. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846 847; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 312.) If the record does not show which party requested an erroneous instruction, the reviewing court must presume that the appellant requested the instruction and therefore cannot complain of error. (Lynch, supra, at pp. 846-848.) Similarly, if the record does not show whether an instruction was refused or "withdrawn, abandoned, or lost in the shuffle," the reviewing court must presume that the appellant withdrew the instruction. (Huber, Hunt & Nichols, supra, at p. 312.) "[I]t is incumbent upon . . . appellant . . . to make certain that the trial court has ruled [on a requested instruction] and that the record on appeal discloses that ruling before the alleged ruling may be assigned as error. [Citations.]" (Ibid.)
We conclude that the record is insufficient to show that the court refused the requested instruction. We presume that Blake either withdrew the instruction or stipulated that another instruction be given in its place. Accordingly, Blake has shown no instructional error.
5. The Denial of the New Trial Motion on the Ground of Jury Misconduct Was Proper
a. Legal Framework
A verdict may be vacated, in whole or in part, on a new trial motion because of juror misconduct that materially affected the substantial rights of a party. (Code Civ. Proc., § 657, subd. (2).) A party moving for a new trial on the ground of juror misconduct must establish both that misconduct occurred and that the misconduct was prejudicial. (Ibid.; People v. Duran (1996) 50 Cal.App.4th 103, 113.)
"`[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance . . . which suggests a likelihood that one or more members of the jury were influenced by improper bias. [Citation.] A juror who `consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors commits misconduct. [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).) Other examples of misconduct include a jurors concealment of relevant facts or giving of false answers during a voir dire examination (In re Hamilton (1999) 20 Cal.4th 273, 295), discussing the case with other jurors before deliberations (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 429; see Code Civ. Proc., § 611), and forming or expressing an opinion on any subject of the trial before deliberations (Deward v. Clough (1966) 245 Cal.App.2d 439, 444; see Code Civ. Proc., § 611).
Misconduct was prejudicial if there is a substantial likelihood that a juror was influenced by improper bias and that the misconduct affected the verdict. (In re Hamilton, supra, 20 Cal.4th at pp. 294, 296; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 415 (Hasson).) Juror misconduct creates a rebuttable presumption of prejudice. (Hamilton, supra, at p. 295.) The presumption of prejudice is rebutted if the entire record, including the nature of the misconduct and the surrounding circumstances, indicates that there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the party moving for a new trial. (Id. at p. 296; Hasson, supra, at p. 417.)
"`The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test. [Citation.] In general, when the evidence of guilt is overwhelming, the risk that exposure to extraneous information will prejudicially influence a juror is minimized. [Citation.] An admonition by the trial court may also dispel the presumption of prejudice arising from any misconduct. [Citation.]" (Tafoya, supra, 42 Cal.4th at pp. 192-193.)
Evidence Code section 1150, subdivision (a) states that evidence of "statements made, or conduct, conditions, or events occurring" that are "likely to have influenced the verdict improperly" are admissible, but that "[n]o 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." This means that evidence of "overt acts, objectively ascertainable" is admissible, but evidence of "the subjective reasoning process of the individual juror, which can be neither corroborated nor disproved," is inadmissible. (People v. Hutchinson (1969) 71 Cal.2d 342, 349.) The court must determine whether the conduct was prejudicial and cannot consider direct evidence of the effect of the conduct on the jurors. Evidence presented in a declaration on a new trial motion must be based on the declarants personal knowledge; a verdict cannot be impeached by hearsay. (People v. Cox (1991) 53 Cal.3d 618, 697; Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 105 (Weathers).)
A trial court has broad discretion in ruling on a new trial motion, and the courts exercise of discretion is accorded great deference on appeal. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) In determining whether juror misconduct occurred, we defer to the trial courts findings of historical fact and credibility determinations if they are supported by substantial evidence. (People v. Schmeck (2005) 37 Cal.4th 240, 294; People v. Majors (1998) 18 Cal.4th 385, 417; Weathers, supra, 5 Cal.3d at p. 108.) In reviewing an order denying a new trial motion on the ground of juror misconduct, as distinguished from an order granting the motion, we independently determine whether prejudice resulted from any misconduct based on our review of the entire record. (Tafoya, supra, 42 Cal.4th at p. 192; City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 872.)
b. The Court Correctly Determined that the Evidence Does Not Establish Prejudicial Juror Misconduct
Blake filed three juror declarations in support of his new trial motion by jurors Valdivia, Lucero, and Elias, all of whom voted against Blakes liability. Plaintiff filed five juror declarations in opposition to the motion, including a second declaration by juror Valdivia qualifying and clarifying her prior declaration.
Blake contends evidence of the following alleged misconduct is uncontroverted and requires a new trial: (1) juror Severson concealed a material fact during voir dire by failing to disclose her daughters murder conviction and incarceration; (2) jurors discussed the case and formed an opinion before deliberations began; (3) juror Elias admitted that he could not hear a large part of the testimony due to his hearing impairment; (4) juror Mendoza invoked the Bible during deliberations to support a finding of liability; (5) jurors intimidated and tricked juror Elias to cause him to vote for liability; and (6) jurors relied on considerations outside the evidence and instructions in determining the amount of damages, including a desire to "send a message," their beliefs that O.J. Simpson had gotten away with murder and that Michael Jackson had gotten away with molestation, the possibility of hidden or protected assets, and a desire to enable Bakleys heirs to obtain custody of Rosie.
(1) Concealment During Jury Voir Dire
A jurors concealment of relevant facts or giving of false answers during voir dire is misconduct, as we have stated. (In re Hamilton, supra, 20 Cal.4th at p. 295.) Whether a juror failed to disclose relevant information or answered falsely is a question of fact for the trial court to decide. (Weathers, supra, 5 Cal.3d at p. 110 & fn. 5; cf. In re Hitchings (1993) 6 Cal.4th 97, 115-116.)
Evidence filed in support of the new trial motion showed that juror Seversons daughter had been convicted of second degree murder and was incarcerated at the time of trial. During voir dire, counsel asked, "Who has, in fact, had problems with the law," and, "is there any of you who have or were in trouble either civilly, like in this case, or criminally." Severson did not raise her hand. When counsel asked whether any of the jurors had never consulted an attorney, Severson raised her hand, indicating that she had consulted an attorney. She was not asked to explain why she had consulted an attorney. Counsel later asked, "Has anyone had any experience with the legal system that left them with a bad taste in your mouth, and that would include small claims?" Severson did not indicate that she had.
In our view, the record supports the trial courts conclusion that juror Seversons failure to disclose her daughters conviction and incarceration in response to these questions was not misconduct. The questions regarding "problems with the law" and legal "troubles" related to those of the jurors themselves, rather than those of the jurors family members. There is no evidence that Severson was implicated in her daughters crime or that she suffered any threat of civil liability or criminal prosecution. The question regarding any "experience with the legal system" might include a jurors experience as the mother of a criminal defendant, but there is no evidence that Severson regarded her daughters prosecution as unfair or that the experience undermined her confidence in the legal system or otherwise "left . . . a bad taste in [her] mouth."
(2) Discussions and Forming an Opinion Before Deliberations
Some of the statements in the declarations supporting the new trial motion concerning comments by jurors before deliberations began were directly controverted by the opposing declarations. The statements in the first Valdivia declaration that Aldana and others discussed the evidence before deliberations began and that it was common for jurors to discuss the case before deliberations, and similar statements in the declarations by juror Lucero and Elias, were directly controverted by the Aldana, Hernandez, Horn, and Mendoza declarations stating that they did not participate in and were not aware of any jurors discussions or deliberations on the case before they were instructed to begin deliberations. Moreover, the statements in the first Valdivia declaration were qualified by the statements in the second Valdivia declaration that the jurors "never in any way began deliberating" before they were instructed to begin deliberations and that she and other jurors did not "get into the details of the case or witnesses" at that time.
The statements in the first Valdivia declaration and the Lucero declaration that other jurors made favorable comments about the credibility of police witnesses before deliberations began were directly controverted by the Aldana, Hernandez, Horn, and Mendoza declarations stating that those jurors neither made nor heard any comments to that effect. Similarly, the statements in the first Valdivia declaration and the Lucero declaration that jurors Aldana and Hall commented before deliberations began that they did not like Blake from the beginning were directly controverted by the Aldana declaration stating that he never made that comment and did not hear Hall make any such comment.
The first Valdivia declaration and the Lucero declaration both stated that juror Hall told them before deliberations began that he would vote for Blakes liability because Blake had left Bakley alone in the car. Although the declarations opposing the new trial motion did not specifically mention Halls purported statements, the statements in the second Valdivia declaration that the jurors "never in any way began deliberating" before they were instructed to begin deliberations and that she and other jurors did not "get into the details of the case or witnesses," and the declarations by jurors Aldana, Hernandez, Horn, and Mendoza stating that they were not aware of any jurors discussions or deliberations on the case before they were instructed to begin deliberations, tend to controvert juror Valdivias prior statement and the statement by juror Lucero regarding Halls comments. We conclude that the court weighed the credibility of the conflicting declarations and determined that the jurors did not discuss the case or form an opinion in the manners alleged by Blake. Substantial evidence supports the courts decision in this regard.
(3) Difficulty Hearing the Testimony
A jurors inattentiveness is a form of misconduct that may justify a new trial. Hasson, supra, 32 Cal.3d at page 411, stated: "We agree with the basic premise that a jurys failure to pay attention to the evidence presented at trial is a form of misconduct which will justify the granting of a new trial if shown to be prejudicial to the losing party. (See Code Civ. Proc., § 657, subd. 2.) The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a jurors obligations. Each juror should attempt to follow the trial proceedings and to evaluate the strengths and weaknesses of the evidence and arguments adduced by each side so that the jurys ultimate determinations of the factual issues presented to it may be based on the strongest foundation possible. Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration of the merits of their cases to which they are constitutionally entitled. (U.S. Const., 6th & 7th Amends.; Cal. Const., art. I, § 16.)"
Hasson held that the denial of a new trial motion was proper despite uncontroverted evidence that one juror was reading a book during the trial and that other jurors were doing crossword puzzles. (Hasson, supra, 32 Cal.3d at pp. 410, 412.) Hasson concluded that the jurors committed misconduct, but that the misconduct was not prejudicial. (Id. at pp. 415, 417-418.) Citing cases in which jurors allegedly were asleep during trial, Hasson stated that courts have declined to grant a new trial absent "convincing proof that the jurors were actually asleep during material portions of the trial." (Id. at p. 411.) Hasson concluded that there was no prejudice because the misconduct occurred "at unspecified times during the presentation of evidence" and because the proof of the defendants liability was "overwhelming." (Id. at p. 417.)
Juror Eliass difficulty hearing the testimony was akin to a jurors inattentiveness in that it resulted in his missing some portions of the trial. As in Hasson, supra, 32 Cal.3d at pages 411-418, we conclude that any misconduct in this regard was prejudicial only if it resulted in his missing material portions of the trial. Juror Eliass declaration that he "told other jurors that [he] was having difficulty hearing some of the testimony" at unspecified times during the trial did not establish that he missed important testimony, as opposed to testimony of little or no practical importance, and therefore establishes no substantial likelihood of prejudice and does not justify a new trial.
(4) Invoking the Bible
Jurors may consider their religious beliefs during deliberations, and an expression of those beliefs to other jurors is not misconduct. (People v. Lewis (2001) 26 Cal.4th 334, 390.) There is no evidence that Mendoza read passages from the Bible in the jury room, and no evidence that he supplanted the instructions with his own religious beliefs. (See People v. Danks (2004) 32 Cal.4th 269, 308; Lewis, supra, at p. 390.) We conclude that the evidence supports the courts conclusion that Mendozas expressions of his religious beliefs were not misconduct.
(5) Intimidation and Trickery
Juror Elias declared that unnamed jurors in the majority stated that if he did not change his vote on Blakes liability, "there would be a hung jury and a mistrial." Elias declared that those jurors asked "if there was something they could do to get me to change my vote" and that they told him "that, if I voted for the plaintiff on liability, they may not award any money damages." To the extent that the statements described in the Elias declaration might be characterized as intimidation or an offer of a compromise verdict, the Elias declaration was directly controverted by the Aldana, Hernandez, Horn, and Mendoza declarations stating that they never "pressure[d]" Elias or offered him "any promises or compromises" to change his vote. We conclude that the court weighed the credibility of the conflicting declarations and determined that the jurors did not intimidate Elias or offer a compromise verdict. Substantial evidence supports the courts decision in this regard.
(6) Extraneous Considerations Relating to Damages
The juror declarations filed in support of the new trial motion were inadmissible to the extent they purported to show the reasoning process by which the jurors arrived at the damages award. (Evid. Code, § 1150.) Purported juror statements during deliberations to the effect that the award should "send a message to the world that celebrities cant get away with murder," that Blake probably had hidden or protected assets, and that the award should be large enough to allow Bakleys children to obtain custody of Rosie reflected the reasons for the amount of the award and were "simply a verbal reflection of the jurors mental processes." (People v. Hedgecock (1990) 51 Cal.3d 395, 419.) References to O.J. Simpson and Michael Jackson as celebrities who purportedly had gotten away with murder or molestation, supporting the need to "send a message," also reflected the jurors mental processes in that regard. The declarations therefore were inadmissible on those issues. Moreover, those declarations were controverted by the opposing declarations stating unequivocally that there was no misconduct.
6. The Damages Awarded Are Excessive
An appellate court can reverse a compensatory damages award as excessive only if, viewing the evidence in the light most favorable to the judgment, the court concludes that the award is so grossly disproportionate to the harm suffered that it shocks the conscience and suggests that the jury was influenced by passion or prejudice. (Hasson, supra, 32 Cal.3d at p. 419; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 (Seffert).) Although a court reviewing an award of noneconomic damages "may consider amounts awarded in similar cases [citations], in the final analysis the question in each case must be determined from its own peculiar facts and circumstances [citation] and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is ordinarily allowed in such cases." (Daggett v. Atchison, T. & S. F. Ry. Co. (1957) 48 Cal.2d 655, 666; see also Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12; Seffert, supra, 56 Cal.2d at p. 508.)
Noneconomic damages awards are particularly subjective and variable. Reviewing an award of noneconomic damages for pain and suffering, the California Supreme Court in Seffert stated: "There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. [Citation.] The amount to be awarded is `a matter on which there legitimately may be a wide difference of opinion [citation]." (Seffert, supra, 56 Cal.2d at p. 508.) If the award appears excessive as a matter of law, however, the reviewing court has a duty to act in order to correct the injustice. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-309.)
The plaintiff here sought only noneconomic damages for wrongful death and did not seek damages for pecuniary loss. The court instructed the jury that the damages award could include only the value of "the loss of Bonny Lee Bakleys love, companionship, comfort, care, assistance, protection, affection, society, [and] moral support," and could not include any compensation for her heirs "grief, sorrow, or mental anguish" or "pain and suffering." (See Krouse v. Graham (1977) 19 Cal.3d 59, 68-70.) The court informed the jury that the average life expectancy of a 44 year-old woman was another 38.5 years. It instructed that the average life expectancy was not conclusive and that other factors to consider in deciding Bakleys life expectancy included her health, habits, activities, lifestyle, and occupation.
Several factors are relevant to the value of the loss of a parents love, companionship, comfort, care, assistance, protection, affection, society, and moral support to his or her children, perhaps the most important being the quality of the relationship between parent and children and the degree to which the parent was a kind and loving mother or father (e.g., Krouse v. Graham, supra, 19 Cal.3d at p. 68; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 615; DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1240; Allen v. Toledo (1980) 109 Cal.App.3d 415, 424), the amount of time regularly spent together (e.g., Allen, supra, at p. 424), the childrens ages and level of maturity (e.g., Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 453), and the parents age and life expectancy (Allen, supra, 109 Cal.App.3d at p. 424).
Bakley had four children. Their names and approximate ages at the time of her death were Glenn Gawron, 22 years, Holly Gawron, 20 years, Debra Gawron, 8 years, and Rosie Blake, 11 months. The two adult children had lived apart from their mother at times and were of such an age that their mothers companionship and attention would no longer play such a central role in their lives as it had when they were children. Debra had lived with Paul Gawron and apart from her mother since Bakley first became pregnant with Rosie. Neither Debra nor Paul Gawron testified at trial, and there is no evidence that Debra and Bakley maintained a close relationship. Rosie lived with her mother from her birth in June 2000 until September 2000, and then lived with Blakes daughter, apart from her mother. Bakleys absence for most of Rosies young life and the presence of another primary caregiver compel the conclusion that the loss to Rosie is significantly less than it would have been if she and Bakley had established their relationship over a longer period of time.
Holly and Glenn Gawron both testified that Bakley was a kind and loving mother. They described their family life together, their plans to move to California, and Bakleys attention to and affection for her children. Rosie was less than one year old at the time of Bakleys death but she obviously has suffered, and will continue to suffer, a significant loss as a result of her mothers death. There was, however, scant evidence of Bakleys relationship with her daughter Debra Gawron in recent years or of the prospects for a close relationship in the future. Despite the difficulty of determining the value of such a tragic loss to Bakleys children, it is the duty of the jury and the trial judge ruling on a new trial motion to perform that task, and it is our duty to review the award for excessiveness under the standard we have set forth.
We conclude that while the evidence, examined in its entirety, supports a considerable award, $30 million is excessive and compels the conclusion that the jury was influenced by passion or prejudice. A reviewing court concluding that an award of damages is excessive may either (1) order a complete new trial, (2) order a new trial on the issue of damages only, or (3) reduce the amount of the award and condition an affirmance of the judgment as modified on the plaintiffs consent to the reduced award. (Cunningham v. Simpson, supra, 1 Cal.3d at p. 310; Deevy v. Tassi (1942) 21 Cal.2d 109, 120-121.) In our view, a liberal reduction of the award to $15 million would cure any prejudice, and the evidence supports an award in that amount. In the interests of justice and to avoid the necessity of a new trial, we will modify the judgment and affirm the judgment as so modified if the plaintiff timely consents to the remission. If the plaintiff does not timely consent to the remission, the judgment will be reversed for a new trial on the limited issue of the amount of damages. Absent any indication that a new trial on damages alone would cause such uncertainty or confusion as to deny a fair trial, it is appropriate to limit the new trial to the issue of damages. (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801; see Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776.)
DISPOSITION
The judgment is modified to reduce the damages award to $15 million and is affirmed as so modified, on the condition that the plaintiff timely consents in writing to such a reduction in accordance with California Rules of Court, rule 8.264(d). If no consent is filed within the time allowed, the judgment is reversed as to the amount of damages only and is remanded for a new trial to determine the amount of damages, liability having been established. Each party is to bear its own costs on appeal.
We Concur:
KLEIN, P.J.
ALDRICH, J.