Opinion
D073999
06-25-2019
THE PEOPLE, Plaintiff and Respondent, v. HENRY MICHAEL BARNHILL, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael Pulos and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE366539) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Conditionally reversed and remanded with directions. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael Pulos and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Henry Michael Barnhill of six counts of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a), counts 1, 3, 4, 6-8) and two counts of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), counts 2, 5). On count 8, the jury also found that Barnhill personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)). After the verdicts, Barnhill admitted four prison priors (Pen. Code, §§ 667.5, subd. (b), 668). The court imposed an 11-year prison sentence.
Barnhill contends the judgment should be reversed because the trial court (1) erroneously allowed evidence of his prior uncharged acts of domestic violence, and (2) failed to instruct on lesser included offenses. We reject these contentions.
Barnhill also argues that the trial court erroneously denied his motion for new trial brought on jury misconduct grounds. We reject this argument because there was no admissible evidence of juror misconduct.
Alternatively, Barnhill contends the court abused its discretion in not conducting an evidentiary hearing to investigate credible, albeit hearsay reports of jury misconduct. We agree. The court clerk and a district attorney investigator reported that during a break the victim and a juror communicated with each other about the case. We will remand with directions to conduct an evidentiary hearing on the jury misconduct issue.
GENERAL FACTUAL BACKGROUND
A. The People's Case
In June 2016 Michelle C. met Barnhill on a dating website. They spent several months texting and speaking on the telephone before meeting in person. Michelle thought Barnhill was smart, handsome, and charming.
Dates are in 2016 unless otherwise specified.
After meeting in person, Michelle and Barnhill lived together. Soon thereafter, Barnhill insisted that Michelle give him access to her e-mail accounts. He also purchased a new cell phone for Michelle, telling her to use only that phone. Barnhill also installed applications on his computer and Michelle's phone enabling him to monitor her activities. He was able to track Michelle's whereabouts and know everything that was sent to her phone.
Between October and December, Barnhill committed several acts of domestic violence against Michelle. The first (count 1) occurred when Michelle questioned him about looking at another women. Barnhill, who is six feet two inches tall, weighs 210 pounds, and is much bigger and stronger than Michelle, responded by punching Michelle in the face. She suffered a two- or three-inch gash above her eye and a black eye. Michelle was afraid to report this and Barnhill threatened to beat her if she tried to leave.
The second incident (count 2) occurred in October. Michelle moved Barnhill's computer to make room for her to sit down and eat. After saying, "Why the fuck couldn't you sit somewhere else," Barnhill grabbed Michelle's neck, held her against a wall, and choked her. Michelle thought she was going to die and afterwards her throat swelled and hurt.
Michelle stayed with Barnhill because she "loved" him and he threatened further harm if she left him. In November (count 3), Michelle accused Barnhill of being with another woman. Barnhill responded by throwing Michelle onto furniture. Michelle's resulting back injury required medical care. When she cried afterwards, Barnhill angrily said, "Look what you made me do."
Later in November (count 4), Michelle told Barnhill that she wanted to end the relationship. Barnhill responded by strangling Michelle with her purse strap, and he spit on her as she was on the floor, gasping for breath. Michelle's throat hurt, she had difficulty swallowing for several weeks, and the strap left visible marks on her neck. However, she was afraid to seek medical care.
In mid-November (count 8), again intending to end the relationship, Michelle asked a relative to help her change the locks. Barnhill, who was monitoring Michelle's text messages, discovered her intentions and retaliated by hitting Michelle so forcefully that her eardrum ruptured.
The last three incidents (counts 5, 6, 7) all occurred the same day in early December. Michelle again sought to end the relationship. As Michelle was leaving in her car, Barnhill followed in his car and gave chase. However, when Barnhill's car overheated, Michelle stopped to help him. After getting in Michelle's car, Barnhill choked her. Returning home, Barnhill punched her in the head, injuring her chin. He also threw a phone at Michelle's face, hitting her lip, causing it to swell for days. Later, to punish Michelle for trying to leave, he forced her to throw all of her clothes in the trash. Then he made her do squats until she was exhausted and cried.
In late December at her employer's holiday party, Michelle did not answer numerous texts and phone calls from Barnhill because she did not hear any notifications above the party's noise. When Michelle finally answered one of his calls, Barnhill yelled, "I can't fucking see you on the camera. What are you doing?" Sobbing at her desk, Michelle told coworkers that she was afraid to go home because Barnhill was going to beat her. A coworker drove Michelle to the police station.
B. Defense Case
Barnhill, who was self-represented (until posttrial motions), testified that Michelle was the controlling person in the relationship. He testified that Michelle insisted that they exchange social media passwords, and she surreptitiously viewed his cellphone and searched his car.
With respect to count 1, Barnhill testified that when Michelle caught him looking at a woman's photograph, she hit him in the head. Barnhill explained that the cut above Michelle's eye occurred accidentally when her ring struck above her eye as he tried to stop her from hitting him.
Barnhill testified that none of the other incidents alleged in counts 2 through 8 occurred. He claimed that Michelle assaulted him on several occasions and she fabricated the charges against him out of anger, jealousy, and revenge for his threats to get her terminated from her government job.
On cross-examination, Barnhill admitted felony convictions in 2003 for unlawfully taking a vehicle, in 2006 for selling cocaine base, and in 2010 for trafficking prostitutes and profiting from their earnings.
DISCUSSION
I. NO ERROR IN NOT GIVING LESSER INCLUDED OFFENSE INSTRUCTIONS
A. Lesser Included Offense Instructions on Penal Code Section 273 .5 Counts Not Required
Barnhill contends that the trial court erroneously denied his request to instruct the jury with lesser included offenses of Penal Code section 237.5 (simple assault, misdemeanor battery, and misdemeanor spousal battery).
A trial court must instruct on a lesser included offense only if there is substantial evidence that the defendant is guilty only of the lesser. (People v. Prince (2007) 40 Cal.4th 1179, 1265.) The court has no such obligation "when there is no evidence that the offense is less than that charged." (People v. Breverman (1998) 19 Cal.4th 142, 154, superseded on another ground by amendment of § 189.) We independently review the court's failure to give lesser include offense instructions, considering the evidence in the light most favorable to the defendant. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) However, it is the defendant's burden to show that substantial evidence would have supported a verdict on only the lesser offense. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1458.)
A violation of Penal Code section 273.5 occurs when a person "willfully inflicts corporal injury resulting in a traumatic condition" upon the offender's "cohabitant or former cohabitant." (Pen. Code, § 273.5, subds. (a), (b)(2).) The statute is intended to allow law enforcement to expeditiously intervene in domestic disputes. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 950.) The statute defines "traumatic condition" broadly as "a condition of the body, such as a wound, or external or internal injury . . . whether of a minor or serious nature, caused by a physical force." (Pen. Code, § 273.5, subd. (d), italics added.) A defendant who inflicts only minor injury, such as a bruise, may violate Penal Code section 273.5. (People v. Silva (1994) 27 Cal.App.4th 1160, 1166; Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1095.) However, one who inflicts only "de minimis harm" does not. (Gutierrez, at p. 952.)
Penal Code section 273.5 is a general intent crime that includes both simple assault and misdemeanor battery. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1055, fn. 3.) "It is injury resulting in a traumatic condition that differentiates [Penal Code section 273.5] from [the] lesser offenses." (People v. Gutierrez, supra, 171 Cal.App.3d at p. 952, italics omitted.)
The trial court had no obligation to instruct on lesser included offenses of Penal Code section 237.5 because the evidence established that if Barnhill was guilty at all, it was for corporal injury to a cohabitant and not a lesser crime. On count 1, Barnhill conceded that Michelle's injuries occurred during their altercation, but claimed that the injuries were accidental. In closing argument, Barnhill stated, "This was her ring on her finger that hit her in the eye or scratched her eye or however it happened. [¶] . . . [¶] . . . I know it is not my fault. I didn't punch her. I didn't even—I didn't even swing out at her. I was trying to grab. . . . I was trying to stop her from hurting me . . . ." Accordingly, if the jury believed Barnhill's testimony, it could not have convicted him of any crime because if the physical contact was accidental, he did not have the requisite criminal intent. (See People v. Anderson (2011) 51 Cal.4th 989, 998 [the concept of accident "'amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime'"].)
On the other Penal Code section 273.5 counts (3, 4, 6, 7 & 8), Barnhill's defense was that none of those incidents ever happened. Barnhill contends that "the fact [he] denied" committing these acts is "irrelevant to the court's decision whether to give the lesser instructions." We disagree. "Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) Barnhill provides no reason why we should ignore this rule here.
Barnhill also argues that lesser included offense instructions should have been given because the jury could have concluded that Michelle was lying about her injuries. However, the evidence does not support a reasonable inference that Michelle sustained only de minimis or no injuries. On count 1, Michelle testified that Barnhill's punch gave her a black eye lasting two weeks and a gash above her eye. On count 2, Michelle testified that her swollen throat hurt for a week and she had difficulty swallowing after Barnhill choked her. On count 3, Michelle testified that Barnhill "almost broke my back" and the pain lasted "a couple of weeks." On count 4, Michelle testified that the strangulation caused significant pain and left marks on her neck. On counts 5, 6, and 7, Michelle testified that she had a "knot" on her head and chin and a swollen lip. On count 8, Michelle testified that Barnhill ruptured her eardrum.
The injuries Barnhill inflicted were at least minor, if not serious. There was no contrary evidence. On this record, the jury could conceivably come to one of only two possible justifiable conclusions: (1) believe Michelle's testimony regarding her injuries and find Barnhill guilty of violating Penal Code section 273.5, or (2) disbelieve her and acquit him. To consider the lesser offenses of assault or battery would have required the jury to accept part of Michelle's testimony—that Barnhill brutally hit her—but reject the remainder of it—that the blows caused traumatic injury. There is no basis for jurors to do so here and such disbelief of part of the prosecution's case is not substantial evidence of lesser included offenses. (People v. Kraft (2000) 23 Cal.4th 978, 1063.) Because there was insufficient evidence to support a finding by a reasonable jury that Barnhill committed an assault or battery on Michelle but did not inflict a corporal injury resulting in a traumatic condition, the trial court correctly refused to give lesser included offense instructions on the Penal Code section 273.5 counts.
Barnhill contends there was evidence that Michelle's ruptured eardrum was caused by an infection, not his fist. However, the record shows otherwise. Michelle testified that the physician did not attribute the ruptured eardrum to an ear infection. Moreover, the court sustained hearsay objections when Barnhill attempted to testify that an ear infection caused the ruptured eardrum, and the court instructed the jury to "disregard" all of Barnhill's testimony on that subject and later granted the prosecutor's motion to strike such testimony. The court also excluded medical records pertaining to ear infections in general, and the court admonished Barnhill to not discuss that subject in closing argument because there was no evidentiary support. When in closing argument Barnhill nevertheless argued that the perforated eardrum was caused by an infection, the court sustained the prosecutor's objection, stating, "This is not proper argument."
B. Lesser Included Offense Instructions on Penal Code Section 245 Counts Not Required
In counts 2 and 5, the People charged Barnhill with violating Penal Code section 245, subdivision (a)(4), assault by means likely to produce great bodily injury. As to count 2, Michelle testified that Barnhill picked her up by her neck with both hands and choked her against a wall for a minute or longer. She thought she was going to die. On count 5, Michelle testified that while she was driving, Barnhill choked her with both hands for about one minute. She could not breathe and thought she was going to crash the car.
A simple assault is an attempt to commit a battery with the present ability to do so. (Pen. Code, § 240; People v. Yeats (1977) 66 Cal.App.3d 874, 878.) Penal Code section 245, subdivision (a)(4) contains the additional element of aggravated force. (Yeats, at p. 878.) Barnhill contends that the court should have instructed on simple assault as a lesser included offense because "the choking was brief and it is not at all clear that it was necessarily only of the type likely to produce great bodily injury."
Barnhill's argument fails. His defense was that he did not choke Michelle. He claimed that it never happened. On these counts Barnhill was either guilty of aggravated assault or of nothing. Therefore, the court correctly declined to give lesser included offense instructions on these counts. (People v. Gutierrez, supra, 112 Cal.App.4th at p. 709.)
II. THE COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING
EVIDENCE OF UNCHARGED DOMESTIC VIOLENCE
A. Additional Procedural Background
The prosecutor filed a pretrial motion seeking to admit evidence of uncharged acts of domestic violence committed by Barnhill against four women other than Michelle, one of whom was Katherine F. At the first hearing on the motion, the prosecutor stated that Barnhill and Katherine were in a "lengthy relationship that was your standard domestic violence of hitting her, giving her black eyes, choking her . . . and then eventually turning her and forcing her into prostitution for him . . . ." In response to the court's inquiry whether Barnhill inflicted "great bodily injury" on Katherine, the prosecutor stated that Barnhill "forced pepper spray down her mouth, forced her to swallow it, and she was vomiting blood . . . ." The prosecutor informed the court that in 2010, Barnhill was convicted of this offense. The prosecutor stated that the other women suffered "[m]ore of the choking, the punching . . . ."
The court deferred ruling until the next day, explaining to Barnhill that he should be prepared to address whether this evidence was probative, highly prejudicial, consume too much time, or was too remote. The next day, the court expressed concern that the uncharged acts may have occurred when these women worked for Barnhill as prostitutes, and thus were not "domestic" violence incidents. The prosecutor replied that "without a doubt" Katherine "started out and always was more of a relationship than a working relationship . . . ." "[T]o ensure there is a fair trial," the court limited the prosecutor to "a maximum of three events" involving Katherine. Then, weighing factors under Evidence Code section 352, the court stated:
Undesignated statutory references are to the Evidence Code.
"In terms of each of these witnesses, I thought a lot about this in terms of the issues of fairness that you're bringing up. It is a real issue. I have considered the remoteness. The most recent goes back six, seven years or eight years. . . . I've done very careful weighing under [section] 352 of our Evidence Code. There is prejudice, but it does appear . . . that over this course of time from 2003 and even earlier up until 2016 there was only a limited period of time where [Barnhill] [was] out on the street. And taking that into consideration, these acts, if they are established, are not remote. They would still, I believe, reflect a continuing course of conduct that reflects a propensity to engage in domestic violence and abuse."
The court also considered whether this evidence would unduly consume time. The prosecutor stated that Katherine's direct examination would take "less than an hour." After considering additional time that Barnhill would likely require for cross-examination, the court determined the time "would be manageable." Next, the court determined that jurors would not be misled "regarding what the actual charges are" and would not "feel they have to punish [Barnhill] for these prior events." The court concluded, "Weighing all of that and with the limitations I placed, I find the probative value of past domestic violence outweighs the prejudicial impact."
The next day, outside the jury's presence and before opening statements, the court revisited these issues, telling the prosecutor and Barnhill, "I just want to ensure that both of you recognize that I've done my best to weigh the [section] 1109 issues." The court stated that he "looked carefully" at "remoteness" and "[m]y rationale is you can't simply look at the number of years which has passed, which is 13 or 14" because "since 2003 Mr. Barnhill has been incarcerated for . . . well over 50 percent of the time." Further, the court stated that there was a "continuing course of conduct," which is "much more probative than a single isolated event." The court stated that although "some or all of the [section] 1109 witnesses" were working as prostitutes for Barnhill at some point, the People's offer of proof showed an adequate foundation "for a relationship, which satisfies our code sections regarding domestic violence." The court also stated that he had "carefully" weighed "the prejudice against the probative value."
The court also told Barnhill that his objections were preserved and he need not object in front of the jury.
B. Katherine's Testimony
Katherine testified that she met Barnhill in 2003. She had an on-and-off dating relationship with him until 2010. Initially, Barnhill treated her well and she found him charming. However, about a week or two into the relationship, Barnhill repeatedly hit her in the head.
In 2004 or 2005, during one of their separations, Barnhill saw Katherine outside a man's apartment. He grabbed her hair, dragged her across the street, and tried to force her into his car. In December 2009 during an argument, Barnhill took Katherine's pepper spray and told her to open her mouth. When she refused, he hit her in the face and again demanded that she open her mouth. When she complied, Barnhill sprayed it in her mouth. Katherine's eyes burned and she vomited blood.
After both Katherine and Michelle testified, the court precluded any additional section 1109 evidence as being unduly prejudicial.
C. Analysis
Barnhill contends that the trial court abused its discretion in allowing Katherine's testimony because this evidence had "negligible probative value" that was "outweighed by its improper prejudicial impact."
Evidence of a person's character or predisposition to act in a certain way is generally inadmissible to prove conduct in conformance with that character trait on a given occasion. (§ 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, section 1109 is an exception to this general rule, providing that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a)(1).) Domestic violence within the meaning of this statute includes abuse committed against an adult cohabitant. (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).)
Section 352 provides that the trial "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Discretion is abused under section 352 where the trial court acts "'in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
"'[T]he legislative history of [section 1109] recognizes the special nature of domestic violence crime, as follows: "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all." (Assem. Com.[ ] on Public Safety[, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996,] pp. 3-4.)'" (People v. Brown (2011) 192 Cal.App.4th 1222, 1235-1236, italics omitted.)
The trial court did not abuse its discretion in allowing Katherine's testimony under section 1109. After eliciting an offer of proof about Katherine's anticipated testimony, the court explained to Barnhill the relevant section 352 factors. Moreover, the court deferred ruling to provide Barnhill extra time to prepare focused opposition. The following day, to protect Barnhill against undue prejudice, the court limited the People to a maximum of three prior acts. The record shows that in so doing, the trial court thoughtfully considered the relevant section 352 factors. After reflecting further on his ruling, the court explained that he had "carefully" weighed probative value against undue prejudice.
Evidence has probative value when it is relevant to the issues—that is, when it has any tendency in reason to prove or disprove a disputed fact in issue. (§ 210.) Barnhill argues that Katherine's testimony lacked probative value because "it was not contemporaneous" and because Michelle "had no problem taking the stand and detailing her allegations against [Barnhill]." To the contrary, Katherine's testimony is probative because "it is the frequency, regularity, and severity with which [a defendant commits past domestic violence] that infuses this propensity evidence with probative strength." (People v. Kerley (2018) 23 Cal.App.5th 513, 536.) Moreover, "'"'[t]he principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.'"'" (Ibid.) Katherine and Michelle explained that Barnhill had two sides to his personality, soft-spoken and kind at times, and yet at other times controlling and violent. Both described how Barnhill inflicted serious injuries with his bare hands. Both women also described how Barnhill escalated his abuse with his victim's own possessions—spraying pepper spray in Katherine's mouth and using Michelle's purse strap to choke her.
The court did not abuse its discretion in balancing probative value against undue consumption of time and the possibility of misleading the jury. Katherine's direct and cross-examination consumes about 3 percent of the trial transcript. Further, the evidence was not likely to mislead the jury, especially since the court instructed with CALCRIM No. 852A as follows: "If you conclude that [Barnhill] committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence" and "is not sufficient by itself to prove the defendant guilty . . . . The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
The court also did not abuse its discretion in balancing probative value against undue prejudice. The test is whether the challenged evidence tended "'to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues'" (People v. Karis (1988) 46 Cal.3d 612, 638), not the prejudice "that naturally flows from relevant, highly probative evidence." (Ibid.) Relevant factors include whether (1) the uncharged acts were more inflammatory than the charged act; (2) the jury might confuse the prior acts with the charged act, such as by seeking to punish defendant for the prior acts; and (3) the uncharged acts were too remote. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.)
Barnhill contends that the court abused its discretion in assessing prejudice because Katherine's testimony was "far more compelling and the nature of the acts was far more inflammatory" than that described in Michelle's testimony. In a related argument, Barnhill asserts that Katherine's testimony was "far more detailed and vivid than the evidence of abuse [Michelle]." We reject these assertions. Forcing pepper spray in Katherine's mouth is abhorrent and vivid, but so is strangling Michelle, spitting on her while she is gasping for breath, and hitting her head so hard as to rupture her eardrum.
Barnhill also asserts that Katherine's testimony was unduly prejudicial, especially in light of the trial court's finding that domestic violence Barnhill inflicted on Katherine was "substantially graver" than that inflicted on Michelle. However, the court made no such finding. In the portion of the transcript Barnhill cites, the court was not referring to Katherine's testimony, but rather the anticipated testimony of the other three women, who were expected to testify that Barnhill strangled, whipped, and sexually assaulted one of them.
III. THE COURT ABUSED ITS DISCRETION IN NOT QUESTIONING JURORS
ABOUT ALLEGED MISCONDUCT
A. Additional Background
1. Jurors' report to the clerk and the prosecutor
"'"Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.'"' (People v. Harris (2008) 43 Cal.4th 1269, 1303 (Harris).) Jurors commit misconduct when they consciously receive outside information, discuss the case with nonjurors, or share improper information with other jurors. (In re Hamilton (1999) 20 Cal.4th 273, 294.)
The day after the jury returned its verdicts, the court notified the parties that after he discharged the jury, two jurors contacted his clerk. They reported that while waiting to enter the courtroom after reaching their verdicts, another juror told them that Michelle told that juror, "You better make the right decision," when both of them were in the restroom during a break in Michelle's testimony. The prosecutor also disclosed that one of the jurors who reported the incident to the clerk told him that this did not influence any juror because it was not divulged until after the jury reached its verdicts. On Barnhill's request, the court appointed an attorney to prepare posttrial motions.
2. Application to disclose jurors' identifying information
Under Code of Civil Procedure section 206, jurors in a criminal case have a right to not discuss their verdict or deliberations with the parties. (People v. Tuggles (2009) 179 Cal.App.4th 339, 380-381 (Tuggles).) Moreover, to protect juror privacy, upon the recording of the verdict in a criminal proceeding, the court's record of juror identifying information is sealed. (Code Civ. Proc., § 237, subd. (a)(2).)
For good cause, a person may petition the court for access to the jurors' identifying information. (Code Civ. Proc., § 237, subd. (b).) If a prima facie showing of good cause is made, the court sets a hearing, notifies each affected former juror, and any affected former juror may appear in person, in writing, by telephone, or by counsel to protest granting the petition. (Code Civ. Proc., § 237, subds. (b), (c).) After the hearing, the records shall be made available as requested in the petition, unless the court sustains a former juror's protest. The court "shall" sustain such a protest if, among other reasons, "the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subd. (d).)
Barnhill's attorney filed such a petition on the grounds that during trial and outside of court, Michelle urged a juror to find Barnhill guilty. The prosecutor conceded there was good cause to set a hearing to determine if juror contact information should be released. The court notified the former jurors of the hearing date and their right to oppose disclosure. The notice stated, "If you do not contact the court or appear at the hearing, the court will assume you have no objection to disclosure."
Eleven of the 12 jurors objected to disclosure of their personal identifying information. The court released to counsel contact information for the one juror (Juror No. 3) who did not respond.
3. Motion for new trial
Subsequently, defense counsel filed a motion for new trial on the grounds of jury misconduct. Counsel supported the motion with a declaration from her investigator, who stated that Juror No. 3 refused to be interviewed by the defense because she had already given a statement to the district attorney's investigator. Defense counsel also submitted a copy of the district attorney investigator's summary of his recorded interview with Juror No. 3. According to that report, during a break and while Juror No. 3 was in a courthouse elevator with other jurors from the trial, one juror said she had contact with someone in the bathroom who was connected with the case. Juror No. 3 said that this communication did not influence her and she knew nothing more about it.
In the new trial motion, Barnhill's attorney asserted that the clerk's disclosure and Juror No. 3's interview established reasonable grounds to believe jury misconduct occurred. Defense counsel argued that if the court precluded defense counsel from obtaining contact information for the other jurors, the only remedy was a new trial. Alternatively, citing Tuggles, supra, 179 Cal.App.4th 339, defense counsel asked the court to order the former jurors to appear in court to answer questions under oath regarding the apparent misconduct.
In his opposition, the prosecutor attached a district attorney investigator's summary of his interview with Michelle. According to that report, Michelle told the investigator that she believed the jury "hated" her and thought she was a "liar." During a break in her afternoon testimony, Michelle went to a restroom. Exiting the restroom, Michelle saw "an elderly woman" enter who she "immediately recognized as one of the jurors." After making "eye contact" with Michelle, the juror "blurted out, 'Honey, I'm so sorry.'" Michelle "reached out and hugged her" and said, 'He's going to kill somebody.'" Michelle told the investigator that the juror "sought her out and initiated the contact." Michelle explained that she hugged the juror because she felt the jury disliked her and she wanted to be comforted.
The trial court denied the new trial motion for lack of admissible evidence of misconduct. Moreover, the court stated that there was no indication that the juror who communicated with Michelle was improperly influenced because Michelle's testimony clearly expressed her desire for a conviction and, therefore, telling the juror "[y]ou have to do the right thing" did not change anything. The court also stated that he would presume that jurors followed his instruction to disregard "absolutely anything they saw or heard that occurred outside the courtroom." The court determined there could be no prejudice because "it is a brief comment to a juror who later told people that this occurred after they had reached a decision . . . ."
The court also denied defense counsel's request to order the former jurors to return to answer questions under oath. The court stated, "As to the due process issue, I'm very sympathetic. . . . [B]ut the statute, C[ode] of C[ivil] P[rocedure section] 237, to me is not subject to a lot of interpretation. It seems if the jurors do not want to have contact, that's the end of the story." Stating, "I don't believe for a moment Mr. Barnhill did not receive a fair trial" and "I don't believe for a moment this spontaneous conduct of [Michelle] going into the bathroom in any way was prejudicial to his rights," the court concluded, "I'm not about to start an investigation based on what was reported to the clerk."
B. Barnhill's Contentions
Barnhill contends that the court erroneously denied his new trial motion. Alternatively, he contends the court abused its discretion and violated his due process rights by refusing to conduct an evidentiary hearing to investigate potential juror misconduct. On this second point, Barnhill contends the matter should be remanded for further proceedings where Michelle and the former jurors are subpoenaed to testify regarding the alleged misconduct.
C. The Court Correctly Denied the Motion for New Trial
A defendant may move for a new trial on grounds of juror misconduct. (Pen. Code, § 1181, subds. 2, 3 & 4.) "'When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion.'" (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467 (Bryant).)
The court correctly denied Barnhill's new trial motion because there was no admissible evidence of juror misconduct. The evidence supporting the new trial motion consisted of: (1) a reporter's transcript of the court's disclosure of two jurors' postverdict conversation with the clerk, and (2) the district attorney investigator's report of his interview with Juror No. 3. The People's opposition attached the district attorney investigator's report of Michelle's interview. Thus, all the evidence was inadmissible hearsay and, therefore, the trial court properly denied the motion. (Bryant, supra, 191 Cal.App.4th at p. 1468 ["a trial court does not abuse its discretion in denying a motion for new trial based upon juror misconduct when the evidence in support constitutes unsworn hearsay"].)
Barnhill concedes that the evidence of misconduct "was not submitted under oath or through sworn statements." Nevertheless, he contends the hearsay should be treated as if given under oath because "there is no reason to doubt the credibility of any of the statements" because the court clerk and the district attorney's investigator "had no reason to lie or fabricate the incidents." Established law, which we follow, rejects this argument. (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1043 ["Unsworn statements cannot be used to establish juror misconduct."]; Bryant, supra, 191 Cal.App.4th at pp. 1470-1471 [a trial court may not decide new trial motion on the merits by assuming the inadmissible evidence is true].)
D. The Court Abused Its Discretion in Not Investigating the Reported Juror Misconduct
Jurors must not converse among themselves or with anyone else on any subject connected with the trial, nor may they form or express any opinion thereon until the cause is finally submitted to them. (Pen. Code, § 1122, subds (a)(1), (b).) "Thus, it is misconduct for a juror to discuss a case with a nonjuror during the course of a trial." (People v. Linton (2013) 56 Cal.4th 1146, 1194.)
Although the parties have not cited and we have not found any published California authority directly on point, two out-of-state cases shed some light. In State v. Far West Water & Sewer Inc. (Ariz.Ct.App. 2010) 228 P.3d 909, the trial court properly excused a juror during trial when, in a restroom after a witness testified, that juror hugged the witness and said, "I'm sorry"—events remarkably similar to events described in the district attorney's investigator's report of Michelle's interview. In Fuller v. State (Ga.Ct.App. 2012) 722 S.E.2d 453, a juror approached the testifying victim before the close of evidence and said, "[H]oney . . . keep your head up" and "I'm proud of you." (Id. at pp. 454, 456.) The appellate court reversed an order denying the defendant's motion for a mistrial because the juror's communication (1) was intentional, (2) established a personal relationship with that witness, and (3) expressed a judgment concerning the merits of the case. (Id. at p. 456.)
Here, the district attorney investigator's report of his interview with Michelle is troubling in some of the same ways. Assuming for the sake of argument that the investigator's report is true, although the restroom encounter was coincidental, once there the juror initiated contact far beyond innocuous social pleasantry (such as a "hello") by blurting out, "Honey, I'm so sorry." That statement is ambiguous because without more context it cannot definitely be determined what the juror is sorry about. But it is no stretch from the subsequent hug to interpret it as reflecting the juror's sympathy or compassion for Michelle's plight. And if sympathy, then that juror must have already determined that Michelle's testimony was credible, which is the tipping point in this case—before Barnhill even put on his defense. If a juror has formed a fixed opinion on a defendant's guilt before the defendant has cross-examined, much less put on his own case in chief, the juror may stand by that opinion even if contradicted by subsequent evidence. A juror's premature conclusions are also problematic because they are without the benefit of instructions on the law, closing arguments, and deliberations.
"'Once a court determines a juror has engaged in misconduct, a defendant is presumed to have suffered prejudice. [Citation.] It is for the prosecutor to rebut the presumption by establishing there is"no substantial likelihood that one or more jurors were actually biased against the defendant."'" (In re Manriquez (2018) 5 Cal.5th 785, 797.)
"Ultimately, the test for determining whether juror misconduct likely resulted in actual bias is 'different from, and indeed less tolerant than,' normal harmless error analysis. [Citations.] If the record shows a substantial likelihood that even one juror 'was impermissibly influenced to the defendant's detriment,' reversal is required regardless of whether the court is convinced an unbiased jury would have reached the same result." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1117 (Cissna).)
Barnhill contends that even if the hearsay reports of juror misconduct were insufficient to support a new trial motion, they at least required the trial court to compel the former jurors who objected to release of their contact information to attend an evidentiary hearing to determine whether misconduct occurred. This procedure, Barnhill asserts, properly balances the competing interests in protecting the former jurors' privacy (because their contact information remains sealed, contact is by the court, not the parties or their agents) while at the same time affording him the opportunity to develop admissible evidence of jury misconduct to support a new trial motion.
Barnhill's argument has merit. "[W]here the trial court is presented with a credible prima facie showing that serious misconduct has occurred, the trial court may order jurors to appear at a hearing and to answer questions about whether misconduct occurred." (Tuggles, supra, 179 Cal.App.4th at pp. 385-386.) "The trial court has discretion to subpoena even reluctant jurors when necessary to determine whether the factfinding process went awry." (Id. at p. 387.) "The duty to protect jurors from overzealous attorneys and investigators does not require an abdication of the court's obligation to ensure that the jury trial process is free from [prejudicial] misconduct." (Ibid.)
This obligation to conduct a hearing is triggered "only when the defense provides evidence strongly suggestive of prejudicial misconduct." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 517 (Mora and Rangel).) Hearsay is "ordinarily 'not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct.'" (Ibid., italics added.) For example, "[a] trial court does not abuse its discretion in declining to hold an evidentiary hearing . . . when the only basis to grant such a hearing or trial is . . . a defense attorney's hearsay assertions" of what jurors purportedly said. (Id. at p. 518; see also People v. Hayes (1999) 21 Cal.4th 1211, 1255-1256 (Hayes).) Similarly, a trial court does not abuse its discretion in refusing to conduct an evidentiary hearing where a former juror gives an informal statement to a defense investigator, but is unwilling to state the same under oath. (People v. Carter (2003) 30 Cal.4th 1166, 1217.) These restrictions are necessary because allowing routine postverdict juror examinations would deter persons from serving on a jury, ultimately damaging the jury process and the administration of justice. (People v. Manibusan (2013) 58 Cal.4th 40, 55 (Manibusan).)
Although hearsay is ordinarily insufficient to trigger an evidentiary hearing on potential juror misconduct, a "persuasive" reason may justify a deviation from this general rule. (Manibusan, supra, 58 Cal.4th at p. 55; People v. Dykes (2009) 46 Cal.4th 731, 811.) Barnhill asserts the persuasive reason is that those reporting Michelle's encounter with the juror (the court, the clerk, and the district attorney investigator) are objectively credible reporters. Barnhill distinguishes the cases cited above because those cases involve (1) hearsay reports of presumptively biased declarants, such as defense lawyers and defense investigators seeking evidence to show misconduct; or (2) circumstances casting substantial doubt on credibility, such as when a juror describes misconduct in an informal defense-conducted interview but refuses to sign a declaration with the same content.
The record does not indicate whether the district attorney investigators asked Juror No. 3 and Michelle to sign a declaration. The report of Juror No. 3's interview states that interview was recorded, but the report of Michelle's interview does not.
Although hearsay reports of jury misconduct are ordinarily insufficient to trigger a court's obligation to investigate further, this case is the exception. The governing test is not whether the evidence of juror misconduct is hearsay, but rather whether the evidence "strongly suggests" prejudicial juror misconduct, despite its hearsay character. (Mora and Rangel, supra, 5 Cal.5th at p. 517.) On this record, the only reasonable conclusion is that it does. The clerk and the district attorney's investigator have no apparent reason to misrepresent their respective communications with Michelle and the jurors. Moreover, the most troubling account of the restroom encounter is in the district attorney investigator's report of Michelle's interview. Michelle was the prosecution's chief witness who has no apparent motive to overstate or fabricate her communication with the juror.
The trial court properly recognized these issues, stating he was "very sympathetic" to Barnhill's due process argument. However, the court denied Barnhill's request for a hearing because the court believed that under Code of Civil Procedure section 237, "if the jurors do not want to have contact, that's the end of the story." Citing People v. Russell (2017) 9 Cal.App.5th 1050 (Russell), the court believed that a defendant has no posttrial constitutional right to question jurors about their verdict.
The trial court's understanding of Code of Civil Procedure section 237 was incorrect. That statute "does not grant jurors the right to protest the trial court's own setting of a hearing to investigate whether misconduct occurred." (Tuggles, supra, 179 Cal.App.4th at p. 386.) Code of Civil Procedure sections 206 and 237 "do not infringe upon the trial court's inherent power to investigate strong indicia of juror misconduct." (Tuggles, supra, 179 Cal.App.4th 387.) "[T]he trial court in this case erred by concluding that it had no power to order jurors to attend an evidentiary hearing after they declined to discuss the case with counsel." (Ibid.) "The duty to protect jurors from overzealous attorneys and investigators does not require an abdication of the court's obligation to ensure that the jury trial process is free from misconduct." (Ibid.) By erroneously believing it had no discretion to exercise, the court abused its discretion. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 782.)
The court also misapprehended Russell, supra, 9 Cal.App.5th 1050. The issue in Russell was whether a juror's failure to respond to a notice under Code of Civil Procedure section 237 constituted an objection to disclosure. Russell does not hold that a trial court has no authority apart from that statute to subpoena a former juror to inquire about jury misconduct. To the contrary, after addressing the juror's failure to respond to the notice given under Code of Civil Procedure section 237, the trial court in Russell "further found there was not a sufficient basis to subpoena" the juror. (Id. at p. 1057.) This latter ruling would have been unnecessary if the court's sole authority rested in Code of Civil Procedure section 237.
Additionally, the trial court also ignored material evidence. (See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197 [a consideration of the evidence is essential to a proper exercise of discretion].) For example, in determining that the claimed misconduct could not have affected the verdict, the court stated, "[Michelle] walks into the bathroom and says to one of the jurors, 'You have to do the right thing.' Within that context, does that change anything? That juror would be blind if she didn't know [that Michelle] was on the stand trying to get [the defendant]." Later, the court reiterated, "I'm not about [to] start an investigation based on what was reported to the clerk."
However, there was credible evidence of misconduct considerably more troubling than what two jurors reported to the clerk. The district attorney investigator reported that the juror initiated contact with Michelle, called her "Honey," said she was "so sorry," they hugged, and Michelle told the juror that Barnhill is "going to kill somebody." This latter statement—in effect unsworn testimony in a restroom during trial—is particularly troubling because in court the court struck Michelle's similar statement, "And I thought, 'Oh, my God he was going to probably kill me.'"
Additionally, the trial court minimized any potential prejudice to Barnhill by characterizing Michelle's communication with the juror as "a brief comment" that was only disclosed to other jurors after they had reached a decision. However, even if no other jurors were aware of the incident until after the verdicts were in, actual bias of even one juror in a criminal case is impermissible. (Harris, supra, 43 Cal.4th at p. 1303.) Moreover, the investigator's report of his interview with Juror No. 3 states that on a break during trial, a juror said that she had contact with "someone in the bathroom who was connected with the case." Thus, there is an unresolved factual dispute about whether the improper contact was reported to other jurors only after the jury returned verdicts (as the court's clerk related), or instead during trial to more than one juror (as Juror No. 3 related)—or perhaps on both or other occasions as well.
We sympathize with the trial judge who having presided over a difficult trial with a self-represented defendant was understandably reluctant to compel former jurors to return to answer questions about jury misconduct. However, one of the most fundamental rights is the right to trial before an impartial jury. The "guarantee of an impartial jury . . . is vital to the fair administration of justice." (Dietz v. Bouldin (2016) ___ U.S. ___, ___ [136 S.Ct. 1885, 1893].) Private communications about the case between a juror and a witness during trial are absolutely forbidden. A conviction cannot stand if even a single juror has been improperly influenced. (Harris, supra, 43 Cal.4th at p. 1303.)
E. The Attorney General's Arguments Are Unpersuasive
Seeking to uphold the court's refusal to conduct an evidentiary hearing, the Attorney General argues that the court properly refuse to conduct a "'"fishing expedition."'" The Attorney General asserts that such a hearing is required only where "'the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.'"
However, in this case there already was evidence demonstrating a strong possibility of misconduct—primarily the district attorney investigator's report of his interview with Michelle. In light of credible reports of prohibited communications between a key witness and a juror during trial, this was no fishing expedition, but rather a necessary step to preserve Barnhill's right to 12 unbiased jurors. (See People v. Hem (2019) 31 Cal.App.5th 218, 227.)
The Attorney General also argues that the record does not show a substantial likelihood or reasonable probability of any prejudice. The Attorney General concedes that the juror's statement, "I'm so sorry," is itself admissible as an overt act or statement. However, citing section 1150, the Attorney General contends "such evidence cannot be used to delve into the juror's mental process or to support the subjective and unverifiable opinion that the contacted juror had made up her mind before hearing all of the evidence."
This argument is untenable because section 1150 would not make proof of bias from the juror's own statement to Michelle inadmissible. That statute provides in part: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (§ 1150, subd. (a).) Thus, section 1150 prohibits evidence of the effect of a statement, conduct, condition or event on a juror's mental processes—not evidence of a juror's statement to the extent it reflects that same juror's state of mind. For example, if a juror were to announce during trial, "I hate the defendant and I believe the victim's testimony," section 1150 would not prohibit a trial court from relying on that assertion to discharge that juror for bias. Similarly here, the juror's purported statement to Michelle, "I'm so sorry," is not made inadmissible by section 1150 if offered to prove that juror's mental process.
The Attorney General also contends there could be no prejudice because the trial court gave "exhaustive instructions explaining the scope of evidence the jury was allowed to evaluate in reaching its verdict." For example, the court instructed the jury to disregard anything seen or heard when court was not in session "even if it was done or said by one of the . . . witnesses." However, this argument fails because any presumption that the juror who communicated with Michelle would follow such instructions was already dispelled by her own misconduct in violating the court's admonition to not "discuss the case with anyone" until deliberations. (Cissna, supra, 182 Cal.App.4th at pp. 1118-1119.)
The Attorney General also argues that because the contact was "brief and isolated" and between strangers there could be no prejudice. However, the isolated and brief nature of any prohibited communication sheds little light on its content, which is a significantly more relevant factor.
Additionally, cases cited by the Attorney General to support the order denying an evidentiary hearing are materially distinguishable. For example, in People v. Hardy (1992) 2 Cal.4th 86, a juror gave fruit cocktail to one of the investigating police officers who was also a prosecution witness. (Id. at p. 173.) There was no conversation between the juror and this witness, and she gave him the fruit cocktail in open court. (Id. at pp. 173-174.) The appellate court determined this was "de minimis" trivial misconduct. (Id. at p. 175.) In sharp contrast here, there is evidence of personal contact between Michelle and the juror about the case. It is hardly trivial for the prosecution's main witness to privately tell a juror during trial that the defendant "is going to kill somebody."
The Attorney General's reliance on People v. Woods (1950) 35 Cal.2d 504 is also not helpful. There, during a recess a juror approached defense counsel and the prosecutor and asked if a particular witness was still present. (Id. at p. 511.) The juror told the court he wanted to ascertain the meaning of a term the witness had used. After the judge admonished the juror to not speak to the witness, the witness was recalled and testified that the never spoke to the juror. (Ibid.) The trial court concluded there was no evidence that the juror was biased. (Ibid.) Woods is materially distinguishable because there is credible evidence that Michelle spoke to the juror in the restroom about the case.
The Attorney General's reliance on People v. Merriman (2014) 60 Cal.4th 1 is also unavailing. There, a sheriff's deputy assigned to the courtroom reported to the court that a fellow deputy, Kathleen B., had discussed the case with a juror with whom she was acquainted. Reportedly, the juror told Kathleen that she was serving on a murder trial and that "they were gonna fry him." (Id. at p. 88.) The court interviewed the juror, who admitted she had spoken to Kathleen, but denied saying "We're gonna fry him." (Id. at p. 89.) The court excused the juror and appointed an alternate to take her place. The same afternoon, the court conducted a hearing regarding possible misconduct. The juror and Kathleen gave conflicting accounts of their conversation. (Id. at pp. 88-89.) The trial court also questioned each juror and the remaining alternate juror, asking whether he or she had participated in or overheard any discussions with another juror or nonjuror regarding the case. (Id. at p. 92.) The trial court resolved the conflicting evidence in favor of the juror and determined that the misconduct was not prejudicial. (Id. at p. 94.)
The Attorney General cites Merriman, supra, 60 Cal.4th 1 for the proposition that "finding even serious misconduct from unauthorized contact between a juror and sheriff's deputy was not prejudicial, as [the] nature of the exchange did not reveal substantial likelihood of bias." However, the critical distinction between Merriman and the instant case is that in Merriman, the trial court conducted an evidentiary hearing into alleged juror misconduct and then, based on that evidence, exercised its discretion in determining whether the presumption of prejudice was rebutted. In contrast here, the court did not conduct a hearing.
Because of this disposition on state law grounds, it is unnecessary to address Barnhill's alternative contention that an evidentiary hearing is also required on state and federal due process grounds. It is also unnecessary to address his contention that the judgment should be reversed for cumulative error because we have rejected Barnhill's contentions that the trial court erred in allowing propensity evidence and in refusing to instruct on lesser included offenses.
DISPOSITION
Because the trial court's error concerns only a failure to conduct further proceedings relating to juror misconduct, we conditionally vacate the judgment and remand to the superior court with directions to conduct an evidentiary hearing on the subject of juror misconduct. We leave to the trial court's discretion, after receiving input from the parties, the scope of such a hearing, noting that the trial court must do what is "reasonably necessary" to resolve the matter under the circumstances. (Hayes, supra, 21 Cal.4th at p. 1255; Tuggles, supra, 179 Cal.App.4th at p. 387.) The trial court is further directed to permit Barnhill to file a motion for new trial on the grounds of jury misconduct within a reasonable time after the conclusion of the evidentiary hearing, should he so desire. If such motion for new trial is not timely filed or not granted, the trial court shall reinstate the judgment.
Nothing in this decision is intended to be, nor should be construed as an expression of any opinion on whether prejudicial juror misconduct occurred in this case or whether a motion for new trial should be granted.
NARES, J. WE CONCUR: McCONNELL, P. J. IRION, J.