Opinion
H042192
06-02-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVE ARNESS NEWMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1116412)
STATEMENT OF THE CASE
An information charged defendant Dave Arness Newman with the following crimes: making a false or fraudulent material statement for the purpose of obtaining compensation (Ins. Code, § 1871.4, subd. (a)(1); count 1), attempted perjury (Pen. Code, §§ 664/118; count 2), and concealing or failing to disclose an event affecting a right to an insurance benefit (Pen. Code, § 550, subd. (b)(3); count 3). A jury convicted defendant on counts 2 and 3. The jury deadlocked on count 1. The trial court declared a mistrial on count 1, and it dismissed count 1. The trial court suspended imposition of sentence and placed defendant on formal probation for a period of five years.
Defendant now appeals from the judgment of conviction. On appeal, defendant contends that he was denied his right to a unanimous verdict because the trial court failed to instruct the jury to disregard previous deliberations when an alternate juror was substituted for a juror who could not continue serving. As set forth below, we reverse the judgment of conviction.
Statement OF THE Facts
The Prosecution's Evidence
On June 27, 2007, defendant suffered a "crushing injury to the left foot" while working at Amberwood Products (Amberwood). Amberwood filed a workers' compensation claim with Compwest Insurance Company (Compwest). On July 9, 2007, Compwest sent defendant a check and a letter. The letter advised defendant that while he received workers' compensation benefits, he was required to report any money that he "earned from work." Between July 2007 and March 2008, defendant received approximately $33,000 in workers' compensation benefits.
Defendant's friend, John Greene, owned a business that "schedule[d] officials for sporting events." Defendant worked as a referee for Greene. Greene scheduled defendant to work as a referee for basketball games in November 2007 and December 2007, and Greene wrote defendant checks for those games. Greene testified that, although he scheduled defendant to referee at those games, defendant did "[n]ot necessarily" referee at the games. Greene explained that if defendant was "not able" to work as a referee, defendant "might get someone else" to referee in his place. Greene further explained that defendant "does the same kind of business, he schedules too."
A Compwest lawyer, Christina Le, deposed defendant on December 17, 2007. At the beginning of the deposition, Le advised defendant that he had to "tell the truth" and was "answering under penalty of perjury." During the deposition, defendant testified that his injury rendered him unable to work at Amberwood and unable to work as a referee. Defendant did not sign the deposition transcript.
Compwest hired a private investigator, Roberto Rivera, to observe defendant's activities. On February 7 and 8, 2008, Rivera videotaped defendant performing the following activities: refereeing youth basketball games, washing and waxing his car, and lifting two children's bicycles out of his car. Rivera testified that defendant did not show any signs of pain when he performed those activities.
On February 18, 2008, Dr. Ronald Fujimoto evaluated defendant to determine defendant's level of disability for purposes of workers' compensation. During the evaluation, defendant stated that he had constant pain in his left foot and lower back and could not work. Defendant also stated that he had "good days and bad days" in regard to his lower back pain. Dr. Fujimoto later viewed the video surveillance of defendant. After viewing the video surveillance, Dr. Fujimoto concluded that defendant had no impairment in his foot and had reached "maximum medical improvement."
A forensic accountant, Robert Gorini, reviewed defendant's bank records for the time period between November 9, 2007 and December 31, 2008. Gorini testified that, based on those records, defendant appeared to be "running a business called NJB Referee Association." Gorini explained that there were approximately 100 checks "written to individuals for [refereeing] games."
Defense Evidence
Defendant testified on his own behalf. He testified that he was honest when he answered questions at the deposition on December 17, 2007. At the time of the deposition, defendant was not working as a referee. Although Greene scheduled defendant to work as a referee in November 2007 and December 2007, defendant did not actually referee those games, he instead found other referees to "cover" those games, and he paid those referees for their work. Defendant did not referee a game for Greene until April 2008.
Defendant testified that he was truthful when Dr. Fujimoto evaluated him on February 18, 2008. At the time of that evaluation, defendant's foot was "still swollen" and "sore" and his back "hurt."
Defendant testified that he served as a volunteer referee on February 7, 2008 as part of his rehabilitation. Defendant explained that his doctors were "pushing" him to resume his normal activities and rehabilitate himself as much as possible.
Defendant testified that he did volunteer work in which he scheduled referees for a youth basketball organization. He did not believe that volunteer work needed to be reported for workers' compensation purposes.
DISCUSSION
Defendant contends that the judgment must be reversed because the trial court failed to instruct the jury to disregard previous deliberations when an alternate juror was substituted for a juror who could not continue serving. The Attorney General argues that defendant forfeited his claim. As explained below, defendant did not forfeit his claim, and the trial court prejudicially erred when it failed to instruct the reconstituted jury to disregard previous deliberations.
Background
Jury deliberations began on December 19, 2014. On that date, the jury deliberated for 30 minutes before recessing for the day.
The jury resumed deliberating on December 22, 2014. The jury deliberated between 9:07 a.m. and 10:04 a.m., took a break, and continued deliberating from 10:26 a.m. to 12:12 p.m. After a lunch break, the jury deliberated between 1:30 p.m. and 3:03 p.m., took a break, and then deliberated between 3:17 p.m. and 4:25 p.m. Shortly before recessing for the day, the jury sent a note titled "Jury Question No. 1." That note stated: "(1) From defendant's testimony please read back where he speaks about Dr. Kahan regarding he can walk up to one hour and stand up to one hour. [¶] (2) On count #1 must all 4 stipulations be proved or only 1 or two of four. [¶] (3) On cross exam read where defendant talks about stipend (prior to D.A. using phrase 'slush fund.' [sic]"
At 8:27 a.m. on December 23, 2014, juror number 26 phoned and informed the trial court that he was involved in a car accident and could not return for jury service. After discussions with counsel, the trial court substituted alternate juror number 2 for juror number 26. After informing the jurors of the substitution, the trial court instructed: "I remind you jurors that you are to begin your deliberations all over again. So [alternate juror number 2] has the advantage of hearing everyone's opinions." (Italics added.) The trial court then stated: "I will some [sic] answers to the jury's question in with you. I'm not sure if you still want read back, if you do just send a note out confirming that you still need read back."
The bailiff escorted the newly constituted jury into the jury room at 10:12 a.m. on December 23, 2014. At 10:15 a.m., the jury sent a note titled "Jury Question No. 2." That note stated: "Need overhead projector or 12 copies of Mr. Gorini's evidence." In response to the note, the trial court provided the jury with copies of People's Exhibit 43. At 10:25 a.m., the trial court sent the jury the following response to Jury Question No. 1: "By stipulation, are you referring to stipulations or theories of liability or elements of the crime? [¶] Stipulations do not need to be proved. Once the attorneys stipulate to a fact, they agree that the stipulated fact or facts are true. [¶] You must also accept those facts as true. However the weight, if any, to be given those facts is up to you, the jury. [¶] Every crime has parts, called elements. Each of those elements must be proved beyond a reasonable doubt. [¶] Also, please refer to the jury instructions on pages 5 and 23 through 28."
At 10:57 a.m. on December 23, 2014, the jury sent a note titled "Jury Question No. 3." That note requested clarification of the attempted perjury instructions. The trial court responded to the note at 11:35 a.m. The jurors recessed for lunch at 12:00 p.m. The jury resumed deliberations at 1:05 p.m. The jury took a break at 2:30 p.m. and then continued deliberating at 2:50 p.m. At 3:59 p.m., the jury announced that it had reached a verdict. The jury deadlocked on count 1 and found defendant guilty on counts 2 and 3.
Legal Principles
Trial by jury "is an inviolate right and shall be secured to all." (Cal. Const. art. I, § 16.) "Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous." (People v. Collins (1976) 17 Cal.3d 687, 693 (Collins).)
"The requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity." (Collins, supra, 17 Cal.3d at p. 693.)
Notwithstanding the requirement of jury unanimity, Penal Code section 1089 "provides for discharge of a juror unable to perform his or her duties . . . and the substitution of an alternate juror in that juror's place." (People v. Renteria (2001) 93 Cal.App.4th 552, 557 (Renteria).) Although Penal Code section 1089 "does not expressly require an admonition to disregard previous deliberations and to begin anew, it must be construed to impose that requirement in order to pass constitutional muster." (Renteria, supra, 93 Cal.App.4th at p. 558.)
People v. Collins, supra, 17 Cal.3d 687 is the "leading case" on the issue of juror substitution. (Renteria, supra, 93 Cal.App.4th at p. 557.) In Collins, our Supreme Court concluded that "a proper construction of [Penal Code] section 1089 requires that deliberations begin anew when a substitution is made after final submission to the jury. This will insure that each of the 12 jurors reaching the verdict has fully participated in the deliberations, just as each had observed and heard all proceedings in the case." (Collins, supra, 17 Cal.3d at p. 694.)
Collins held that the following instruction is required when an alternate juror is substituted after deliberations have begun: "We accordingly construe [Penal Code] section 1089 to provide that the court instruct the jury to set aside and disregard all past deliberations and begin deliberating anew. The jury should be further advised that one of its members has been discharged and replaced with an alternate juror as provided by law; that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had." (Collins, supra, 17 Cal.3d at p. 694.)
Defendant's Claim is Not Forfeited
The Attorney General contends that defendant "forfeited [his] claim and invited any error by failing to object to the court's instruction to the jury to begin deliberations anew, and by participating without objection to the discussion about how to answer Question No. 1." This argument is meritless.
A defendant may bring a claim of Collins error on appeal, even if "his attorney did not raise the issue when the alternate replaced the discharged juror." (Renteria, supra, 93 Cal.App.4th at p. 560.) The failure to give an adequate Collins instruction affects "the substantial rights of the defendant. For that reason, the failure to request a proper instruction containing the admonition does not bar defendant from asserting the point on appeal." (Ibid.) We thus cannot conclude that defendant invited the error and forfeited his claim. We accordingly address the merits of defendant's claim. (See Pen. Code, § 1259 [an appellate court may review "any instruction given . . . if the substantial rights of the defendant were affected thereby"]; Pen. Code, § 1469 [same]; People v. Guillen (2014) 227 Cal.App.4th 934, 1028-1029 (Guillen) [finding no forfeiture or invited error for a claim of Collins error because a substantial right was implicated].)
The Trial Court Erred
Collins requires a trial court to instruct a reconstituted jury "to set aside and disregard all past deliberations and begin deliberating anew." (Collins, supra, 17 Cal.3d at p. 694.) Here, the trial court failed to give such an instruction. Rather, the trial court instructed the reconstituted jury as follows: "I remind you jurors that you are to begin your deliberations all over again. So [alternate juror number 2] has the advantage of hearing everyone's opinions." Completely absent from this instruction was an admonition to set aside and disregard all past deliberations. This was error. (See People v. Martinez (1984) 159 Cal.App.3d 661, 665 (Martinez) [finding error where the jurors "were not instructed to set aside and disregard all past deliberations"].)
Citing People v. Proctor (1992) 4 Cal.4th 499 (Proctor), the Attorney General contends that "an instruction that expressly states that the jury must begin deliberations anew and implies that the jury must disregard all prior deliberations is sufficient." The Attorney General suggests that the trial court here implied that the jury must disregard all past deliberations. The Attorney General's argument is not persuasive.
In Proctor, "the trial judge advised the jury to resume its deliberations, stating it 'would be helpful and in connection with commencing your deliberations again, that you kind of start, start from scratch, so to speak, so that [the alternate juror] has the benefit of your thinking as well as give him an opportunity for his input also.' " (Proctor, supra, 4 Cal.4th at p. 536.) Proctor held that this instruction comported with Collins, explaining in part: "By instructing the jury to 'kind of start, start from scratch, so to speak,' the court implied that the jury should disregard its previous deliberations." (Id. at p. 537.)
Here, unlike Proctor, the trial court in no way implied that the jury should disregard its previous deliberations. Rather, shortly after the trial court instructed the reconstituted jury to begin deliberations "all over again," the trial court answered a question posed by the original jury. By answering that question, the trial court implied that the jury should not disregard its previous deliberations. By answering the question, the trial court improperly "suggested to the jury it resume deliberations where the original jury left off." (See Guillen, supra, 227 Cal.App.4th at p. 1030.) This was error. This case is not akin to Proctor, and the instruction here did not satisfy the requirements of Collins.
Reversal is Required
The Collins instruction "is imposed as a function of the state Constitution." (Renteria, supra, 93 Cal.App.4th at p. 559.) Thus, Collins error is tested by the prejudice standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). (Renteria, supra, 93 Cal.App.4th at p. 559.) Under the Watson standard, error is prejudicial if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
"In determining whether Collins error was prejudicial, we may consider whether the case is a close one and compare the time the jury spent deliberating before and after the substitution of the alternate juror." (Proctor, supra, 4 Cal.4th at p. 537.) We may also consider whether the issues in the case were simple or complex. (Martinez, supra, 159 Cal.App.3d at p. 665.)
Here, the jury's verdict shows that this was a close case. Defendant was charged with three interrelated crimes: making a false or fraudulent material statement for the purpose of obtaining compensation (count 1), attempted perjury (count 2), and concealing or failing to disclose an event affecting a right to an insurance benefit (count 3). All three of these crimes were related to defendant's alleged misconduct in connection with his workers' compensation benefits. The jury deadlocked on count 1. The circumstance that the jury deadlocked on count 1 strongly demonstrates that this was a close case.
The case was also complex. Sixteen witnesses testified. The prosecution offered 45 exhibits into evidence. Detailed evidence regarding defendant's finances and financial transactions was presented. The prosecutor argued four alternative theories for count 1 and three alternative theories for count 3. It is thus apparent that the issues before the jury were "not simple." (Martinez, supra, 159 Cal.App.3d at p. 665.)
The jury spent more time deliberating before the substitution than it did after the substitution. Before the substitution, the jury deliberated for close to six hours. After the substitution, the jury deliberated for approximately four and a half hours. Given the many hours of deliberation before the substitution, there was "sufficient time to formulate the danger that is likely without the proper [Collins] instruction." (Martinez, supra, 159 Cal.App.3d at p. 666.)
When we consider the foregoing circumstances, we must conclude that it is reasonably probable that defendant would have achieved a more favorable result absent the Collins error. Defendant was prejudiced by the Collins error, and we must reverse the judgment of conviction.
DISPOSITION
The judgment is reversed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.