Opinion
D077635
07-19-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS HERNANDEZ, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, No. FVA1302200 Stanford E. Reichert, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
O'ROURKE, J.
This case comes back to us after we conditionally affirmed the judgment in a prior direct appeal, in which defendant Carlos Hernandez challenged his convictions of sex offenses against a minor, his wife's sister. (People v. Hernandez (May 3, 2018, D073117) [nonpub. opn.].) In that appeal, we concluded Hernandez's counsel had made out a prima facie case for release of juror information, and remanded the matter for the trial court to proceed in accordance with Code of Civil Procedure section 237. The court granted the ensuing defense motion to disclose juror identifying information but ultimately denied Hernandez's new trial motion, which asserted the jurors had engaged in misconduct based on a juror declaration relating concerns expressed by other jurors as to the victim's credibility and whether she was a willing participant in the sex acts. Hernandez contends the trial court erred by denying him a new trial because the juror declaration showed prejudicial jury misconduct, namely that the jury considered extraneous and erroneous law, denying him his constitutional rights to due process and an impartial jury trial. We disagree and affirm the order.
Hernandez was convicted of five counts each of forcible rape of a child over 14 years of age (Pen. Code, § 261, subd. (a)(2)), forcible oral copulation with a minor victim over 14 years of age (Pen. Code, § 288a, subd. (c)(2)(C)), and forcible sexual penetration by a foreign object of a minor victim over 14 years of age (Pen. Code, § 289, subd. (a)(1)(C)). (People v. Hernandez, D073117.)
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying Hernandez's convictions are set out in our prior opinion, of which we have taken judicial notice. Following our remand and the court's granting of Hernandez's motion to disclose juror identifying information, a defense investigator interviewed the juror seated in seat 6 (Juror No. 6) who had participated in deliberations.
Hernandez concedes the underlying facts are not relevant to the issues raised on appeal.
Based on the juror's interview, Hernandez moved for a new trial in part claiming the jury committed misconduct by deciding the case on a misapplication of law. According to Hernandez, Juror No. 6 stated that during deliberations, there “was a lot of discussion about whether the victim was a willing participant” and jurors “were concerned that the victim had not been truthful, and that she had wanted to participate in the sex acts....” Hernandez continued: “[H]owever, as Juror [No.] 6 explained, ‘[the victim] was only fifteen years old,' and that since the victim was a minor ‘it was rape.' Juror [No.] 6 said that they ‘kept coming back to' the fact that the victim was only fifteen, and that intercourse with a minor ‘constituted rape.' Juror [No.] 6 said the jury was unanimous in their decision and every juror was confident in their final decision. Juror [No.] 6 said it was uncomfortable because of the type of crime that had been alleged, but Juror [No.] 6 felt the entire jury put their personal feelings aside and only considered the evidence. Juror [No.] 6 then, again, explained that intercourse with a minor ‘is rape.' ” Hernandez argued the juror's declaration did not relate feelings, impressions or opinions on the weight of statements or evidence during the deliberative process, but addressed what was specifically said during deliberations, and thus it and the summaries of discussions regarding the application or misapplication of the law were relevant and admissible on his motion.
Hernandez pointed out the jury instructions for consent had no age requirement. He argued the Penal Code did not state a person was incapable of formulating consent to sexual activity until they reach the age of eighteen, and pattern jury instructions did not contain age parameters as to when a sexual partner's consent may or may not be an affirmative defense to rape by force or fear. He argued that for his charge of rape by force, the victim's age was not relevant to the determination of consent, and it was the People's burden to prove any consent was not the product of a knowing exercise of free will. According to Hernandez, it was misconduct for the jurors to consider and adopt the misconceived laws pertaining to Penal Code sections 261 and 261.5, and the alleged victim's capacity to consent in determining whether a consent defense applied. He argued the extraneous law created a presumption of prejudice and required a new trial under either the federal Chapman (Chapman v. California (1967) 386 U.S. 18) or the state Watson (People v. Watson (1956) 46 Cal.2d 818) standard of prejudice.
In opposition, the People argued the juror's declaration was inadmissible but even if it was properly considered, it failed to establish misconduct or prejudice. They argued the declaration revealed the jurors merely talked about the victim's age, which was necessary given the elements of the crimes and the fact the victim's “actions and reactions are often at issue....” The People also argued the declaration was “replete with inadmissible assertions” including hearsay about what other jurors said, comments about the jurors' thought processes, and evidence of subjective reasoning as opposed to overt acts. The People argued the declaration was therefore inadmissible under Evidence Code section 1150, but even if not, it failed to establish misconduct because the victim's age was relevant to duress, and no instruction told the jury that age eliminated the victim's ability to consent, or that they could not consider her age. They pointed out Juror No. 6 stated the jury went through all of the evidence and she remained confident in their decision. Finally, the People argued even if there was misconduct Hernandez could not establish prejudice given the overwhelming evidence of his guilt. Further, according to the People, Hernandez did not refute or present defense evidence contesting the acts of the offenses, and consent was not a proffered defense; he merely testified he did not commit the crimes at all, denying any type of sexual relationship with the victim.
After considering the parties' arguments, the trial court denied Hernandez's motion. It found no basis in the evidence for the juror's remark about the victim's age or that the victim “could not consent, and sex with a minor was rape” and that the statement was merely speculation about consent. The court also pointed to the juror's statement that the jury was confident in its unanimous decision: “So in the context of this particular case where the defense was that... the acts didn't happen, and there was no evidence of consent, the speculation about the effect of consent in the court's view is not relevant to the court's consideration of a motion for new trial.” (Some capitalization omitted.) Noting the new trial motion was triggered by Hernandez's claim that jurors stated he was “probably guilty, ” the court found there was no evidence the jurors used the wrong standard of proof.
Hernandez filed this appeal.
DISCUSSION
I. Legal Principles and Standard of Review
“Jury misconduct serious and extensive enough to impair the fairness of the trial or deliberations may warrant granting a new trial motion.” (People v. Flinner (2020) 10 Cal.5th 686, 755; Pen. Code, § 1181.) To determine whether a party has established juror misconduct, “[t]he trial court must first ‘determine whether the affidavits supporting the motion are admissible. [Citation.]' [Citation.] This, like any issue of admissibility, we review for abuse of discretion. [Citation.] [¶] Second, ‘If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.]' [Citation.]... [Citation.] On review from a trial court's ‘determin[ation of] whether misconduct occurred, “[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]”' [Citations.] [¶] ‘ “Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.”' ” (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345, quoting in part from People v. Dorsey (1995) 34 Cal.App.4th 694, 703; see also People v. Flinner, at pp. 755-756; People v. Loot (1998) 63 Cal.App.4th 694, 697.)
“Th[e] presumption of prejudice can be rebutted by a showing no prejudice actually occurred or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.” (People v. Loot, supra, 63 Cal.App.4th at p. 697.) A party moving for a new trial on the ground of juror misconduct bears the burden of establishing misconduct occurred and that misconduct was prejudicial. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)
Courts “only disturb a trial court's decision on a motion for new trial if the ruling constitutes ‘a manifest and unmistakable abuse of... discretion.' ” (People v. Caro (2019) 7 Cal.5th 463, 521; see People v. Fayed (2020) 9 Cal.5th 147, 175; People v. Fuiava (2012) 53 Cal.4th 622, 730 [determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears].) We independently review whether any misconduct resulted in prejudice. (People v. Nesler (1997) 16 Cal.4th 561, 582-583.)
II. Admissibility of Juror Declarations
Admissibility of juror declarations to attack a verdict's validity is governed by Evidence Code section 1150, subdivision (a), which provides: “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.”
“ ‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved....” [Citation.] “This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.”' ” (People v. Gonzales (2012) 54 Cal.4th 1234, 1281; see also People v. Danks (2004) 32 Cal.4th 269, 301-302; People v. Johnson (2013) 222 Cal.App.4th 486, 494.) “[W]hile rendering evidence of the jurors' mental processes inadmissible, [Evidence Code section 1150] expressly permits, in the context of an inquiry into the validity of a verdict, the introduction of evidence of ‘statements made... within... the jury room.' We have warned, however, that such evidence ‘must be admitted with caution,' because ‘[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.' [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when ‘the very making of the statement sought to be admitted would itself constitute misconduct.' ” (People v. Cleveland (2001) 25 Cal.4th 466, 484.)
Thus, “Evidence Code section 1150 may be violated ‘not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.' ” (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) “[E]vidence that violates Evidence Code section 1150 is not merely inadmissible; it is irrelevant-‘of no jural consequence.' ” (People v. Johnson, supra, 222 Cal.App.4th at p. 494, quoting People v. Steele (2002) 27 Cal.4th 1230, 1264.)
III. Analysis
Our analysis begins and ends with the question of Juror No. 6's declaration's admissibility. Hernandez contends the declaration reveals overt acts of misconduct, namely discussions of jurors' “misapprehension of the law that consensual sexual intercourse between a minor and an adult constitutes rape as charged in this case.” He maintains that the jurors thus determined his guilt based on their mistaken understanding of the law. Hernandez further contends Juror No. 6's statements were admissible under the Evidence Code section 1250 state of mind hearsay exception. He compares the circumstances with cases in which juror statements were held admissible in Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778 and People v. Engstrom (2011) 201 Cal.App.4th 174.
Citing, among other cases, Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677 and In re Stankewitz (1985) 40 Cal.3d 391 (Stankewitz), the People counter that Juror No. 6's declaration was inadmissible; that she detailed her subjective, deliberative thought process as well as the jury's subjective collective mental process purporting to show how the verdict was reached, and their confusion or misunderstanding of the law such that it was inadmissible under Evidence Code section 1150.
We agree with the People. We see Juror No. 6's declaration as setting out the jury's collective mental processes akin to the inadmissible juror declarations in Mesecher v. County of San Diego, supra, 9 Cal.App.4th 1677. Mesecher involved an action for damages stemming from a law enforcement officer's alleged battery or violation of the plaintiff's civil rights. (Id. at pp. 1680-1681.) The court instructed the jury that if the sheriff used unreasonable or excessive force, the county could be liable, and the jury found the sheriff engaged in “ ‘intentional, unlawful and harmful contact' ” with the plaintiff. (Id. at pp. 1681-1682.) Some jurors later submitted declarations stating that during deliberations, they and other jurors defined a “battery” as contact that was intentional or unlawful or harmful or offensive, which conflicted with the court's instruction. (Id. at p. 1682.) The declarations showed a majority of the jurors had relied on that definition to conclude the sheriff committed the battery because he intended to have contact with the plaintiff, even though they did not think the contact was harmful, unlawful or offensive. (Id. at p. 1683.)
This court concluded the declarations were inadmissible to impeach the verdict. (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683.) According to the panel, they suggested at most “ ‘deliberative error' in the jury's collective mental process-confusion, misunderstanding, and misinterpretation of the law.” (Ibid., citing Stankewitz, supra, 40 Cal.3d at p. 398.) Like Hernandez does here, the County in Mesecher sought to avoid that conclusion by focusing on the fact the jurors communicated their misunderstandings during deliberations. But, we said, the “ ‘[t]he subjective quality of one juror's reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning.' To hold otherwise would destroy the rule... which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also inhibit and restrict the free exchange of ideas during the jury's deliberations.' ” (Mesecher, at pp. 1683-1684.)
Here, like in Mesecher, Juror No. 6's declaration reflects the collective thinking of the jurors during their deliberations: questioning the victim's willingness in participating in the sex acts but feeling that because she was 15 years old she could not consent, and thus Hernandez committed rape. (Accord, People v. Sanchez (1998) 62 Cal.App.4th 460, 474-476 [juror declarations stating that some of the jurors included “participation” in the definition of an “endless chain” prohibited by Penal Code section 327 and openly discussed during deliberations that participation in the endless chain was sufficient to satisfy the elements of the offense were inadmissible under Evidence Code section 1150 as deliberative error in the jury's collective mental process or misinterpretation of the law].) This is not a situation where “ ‘the very making of the statement sought to be admitted would itself constitute misconduct' ” as in Grobeson v. City of Los Angeles, supra, 190 Cal.App.4th 778, where the statement showed not only the juror's state of mind but also that she had prejudged the case. (Id. at pp. 784, 788 [juror recounted that another juror during trial said she “ ‘made up [her] mind already' ” and was “ ‘not going to listen to the rest of the stupid argument' ”; Court of Appeal explained “there is at least one state of mind that we must take into account and that is where the juror has prejudged the case or was biased”].) Nor is it like the juror declaration found admissible in Stankewitz, a murder/robbery case, in which the juror advised the other jurors “that he had been a police officer for over 20 years; that as a police officer he knew the law; that the law provides a robbery takes place as soon as a person forcibly takes personal property from another person, whether or not he intends to keep it; and that as soon as petitioner took the wallets at gunpoint in this case he committed robbery, whether or not he intended to keep them.” (Stankewitz, supra, 40 Cal.3d at p. 396.) In Stankewitz, not only was the juror “totally wrong, ” but the juror also “vouch[ed] for [his statement's] correctness on the strength of his long service as a police officer” and he “stated it again and again to his fellow jurors.” (Stankewitz, at pp. 399-400.)Here, there is no indication that Juror No. 6 told the jury she had special expertise on the law or vouched for her statement's correctness. Rather, Juror No. 6's declaration contains “evidence about ‘mental processes or reasons for assent or dissent' [citation]” which, even if it reflects a misunderstanding of the law, “is not admissible as a general proposition....” (Grobeson, at p. 788; see Mesecher, supra, 9 Cal.App.4th at pp. 1683-1684.) Grobeson does not compel reversal.
Hernandez is not assisted either by People v. Engstrom, supra, 201 Cal.App.4th 174. In Engstrom, a juror with an engineering background suggested during deliberations that an expert's calculation was incorrect and the jurors should conduct a recalculation. (Id. at p. 181.) In reviewing the trial court's grant of a new trial, the Court of Appeal pointed out that while some of the juror's affidavit was related to the jurors' thought process, it was properly admitted as “nonetheless based on external, verifiable conduct and statements rather than a juror's internal thoughts left unexpressed until a motion for new trial.” (Id. at p. 184.) The Engstrom court ultimately reversed, finding no misconduct becauseno juror brought in outside evidence or reported the results of secret experiments, but rather the juror “applied a common sense interpretation of available evidence to requantify the same factor, and discussed it with fellow jurors.” (Id. at p. 187.) Further, while the juror was an engineer, there was no evidence he relied on specialized knowledge or claimed to be an expert in the field at issue. (Ibid.)
In this case, Juror No. 6's declaration did not show the jurors brought in outside evidence or otherwise purported to have specialized expertise. It is the sort of evidence that opens the jury's deliberations to scrutiny. That is, it shows jurors made statements about their beliefs as to whether intercourse with a 15-year-old was rape, or whether a 15-year-old could consent to sexual activity. This was plainly part of their subjective deliberative process and
“ ‘at most suggest[s] “deliberative error” in the jury's collective mental process-confusion, misunderstanding, and misinterpretation of the law.' ” (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683.) Juror No. 6's declaration is therefore inadmissible under Evidence Code section 1150.
Even if we were to reach a different conclusion and hold the declaration admissible, we would affirm the order denying a new trial. It is true that the introduction of extraneous law, erroneous or not, constitutes misconduct. (People v. Marshall (1990) 50 Cal.3d 907, 950, citing Stankewitz, supra, 40 Cal.3d at pp. 399-400.) “Extraneous law” in this context is “a statement of law not given to the jury in the instructions of the court.” (Stankewitz, at p. 397.) But “[t]he introduction of much of what might strictly be labeled ‘extraneous law' cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. ‘[It] is an impossible standard to require... [the jury] to be a laboratory, completely sterilized and freed from any external factors.' [Citation.] Moreover, under that ‘standard' few verdicts would be proof against challenge.” (Marshall, at p. 950 [but holding juror's comment that
“ ‘juvenile records are automatically sealed at 18 years of age' ” accompanied by vouching based on the strength of his “ ‘background in law enforcement' ” was not a general statement about the law finding its source in everyday life and experience]; see also People v. Danks, supra, 32 Cal.4th at pp. 302-303; People v. Riel (2000) 22 Cal.4th 1153, 1219 [citing Marshall with approval in upholding denial of new trial motion based on juror's statement that if jury gave the defendant the death penalty, “ ‘the judge will just commute it to life in prison anyway' ”; statement was an unavoidable prediction during the give and take of deliberations]; People v. Pride (1992) 3 Cal.4th 195, 267-268 [discussing Marshall with approval and explaining it is incorrect to suggest “misconduct occurs whenever the jury, though instructed to consider only the evidence before it, nonetheless discusses speculative, irrelevant, and/or erroneous facts or opinions”].) Juror No. 6's declaration showed she and other jurors appeared to bring to the jury room their “knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience.” (People v. Marshall, 50 Cal.3d at p. 950.) That does not constitute misconduct.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., DATO, J.