Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge., Super. Ct. No. SCD174204
HUFFMAN, J.
Thad Andrew Jesperson, a former second and third grade school teacher at Toler Elementary School (Toler) in San Diego, appeals his eight child molestation convictions, involving four victims, after three jury trials and a bifurcated court trial. At his first trial, the jury returned a verdict convicting Jesperson of a lewd and lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); count 11, involving Emily A.) and found "that [Jesperson] did not commit an offense of [s]ection 288[, subdivision] (a) against more than one victim within the meaning of [s]ection 667.61[, subdivisions] (b)(c)(e)." The jury deadlocked on 12 counts alleging similar lewd and lascivious acts upon other young female students and each count's respective/attendant one strike law multiple victim allegation (counts 1 & 2 involved J.S.; counts 3, 4 & 5 involved Michelle A.; counts 6 & 7 involved K.H.; count 8 involved D.R.; counts 9 & 10 involved Renne B.; count 12 involved Aimee M.; and count 13 involved Teresa G.). The trial court declared a mistrial on these charges.
All statutory references are to the Penal Code unless otherwise specified.
Both the original information and the amended information identified the victim in counts 9 and 10 as Renne B., while the respective verdict forms from the first two trials identified her as Renee B.
Before the second trial, the court denied Jesperson's motion for new trial and the People amended and renumbered the information to charge Jesperson with 11 counts of lewd and lascivious acts upon all of the originally named victims except for Emily and Teresa. The information also again alleged as to each count that Jesperson had committed the offense against more than one victim under the one strike law (§ 667.61, subds. (b), (c), (e)). Upon retrial, the jury convicted Jesperson on count 1 as to J., acquitted him on four counts involving D., Renne and Aimee (counts 8, 9, 10 & 11), and found the one strike multiple victim allegation not true as to each of those counts. The second jury deadlocked as to counts 2, 3, 4, 5 and 7 involving J., Michelle and K., and the court declared a mistrial on those charges.
Pending sentencing and a possible third trial, the court granted Jesperson's motion for a new trial on the count 1 conviction involving J., based on juror misconduct during deliberations in the second trial. Before retrial, the People filed a second amended information charging Jesperson with seven counts of lewd and lascivious acts upon J. (counts 1 & 2), Michelle (counts 3, 4 & 5), and K. (counts 6 & 7), and again alleged as to each count that Jesperson had committed the offense against more than one victim under the one strike law (§ 667.61, subds. (b), (c), (e)). Jesperson entered a double jeopardy plea, as well as not guilty pleas and denials, to all counts and allegations, and the court granted his motion to bifurcate for separate trial on the one strike allegations.
After the third trial, the jury convicted Jesperson of all seven counts as charged. The trial court subsequently found true the one strike multiple victim allegations and further found that Jesperson had not been "once in jeopardy" for those findings or their underlying convictions. After denying his new trial motion, the court sentenced Jesperson to prison for an indeterminate term of 15 years to life (seven concurrent indeterminate terms of 15 years to life for his convictions arising out of the third trial and a concurrent six-year midterm for the one conviction from the first trial).
On appeal, Jesperson contends that there was prejudicial juror misconduct at the first and third trials which denied him his constitutional right to a fair trial; that double jeopardy barred retrial at the third trial because the first two juries found he had not committed lewd and lascivious acts against multiple victims; that the trial court committed instructional error at the first and third trials which denied him due process and undermined the required jury determination of the intent element; and that the court also committed prejudicial evidentiary errors by admitting videotaped interviews of the four alleged victims into evidence at the third trial, by allowing those videotapes to go into the deliberation room, by excluding expert testimony regarding "suggestibility" at the third trial which was aggravated by prosecutorial misconduct during questioning, by permitting the introduction of voluminous hearsay evidence which repeated the accusations of the alleged victims, and by permitting the prosecution to use large diagrams of nude girls as exhibits at the third trial. Jesperson further claims that any failure of his defense counsel to object, inadequately object, or failure to make the appropriate objections to the introduction of any of the above evidence constituted ineffective assistance of counsel. Finally, Jesperson asserts the cumulative effect of all the errors denied him a fair trial and warrants reversal.
Based on the totality of the record, we vacate the conviction from the first trial for juror misconduct, vacate the convictions from the third trial for the cumulative prejudicial effect caused by juror misconduct and the ineffective assistance of counsel, and determine that double jeopardy principles barred retrial of the one strike allegation accompanying the count 1 conviction involving J. at the second trial. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jesperson does not challenge the sufficiency of the evidence to support his various convictions which basically showed that between November 2002 and May 2003, reports surfaced that he had inappropriately touched at least four of his young female students at Toler in his second and third grade classrooms during the 2001-2002 and 2002-2003 school years. In January 2003, Jesperson was removed from the classrooms at Toler and San Diego Police Detective Kimberly Newbold was assigned to investigate the matter after one of the young girl's mother's (Michelle's) had called the police. Based on the responding officer's report, Newbold scheduled a forensic interview for Michelle at Chadwick's Children's Center (referred to as either Chadwick or Children's Hospital), which she then observed. After that interview, Newbold went to Toler where she talked with the principal and a counselor, and arranged to interview K., a friend of Michelle's, who, although she did not say she had been touched, gave Newbold J.'s name as a girl who had been touched by Jesperson.
Newbold went to Pacific Beach Elementary School (Pacific Beach) where J. was then a student and talked with her. Although J. denied Jesperson had touched her "in a way that made her uncomfortable," Newbold spoke with J.'s mother about the investigation, explaining why J. had been singled out to talk about her former teacher's conduct. After receiving information from J.'s father the next morning, and a voice mail from K.'s mother, Newbold separately recontacted K. and J., each of whom now said Jesperson had touched them. After interviewing K. at Toler, Newbold proceeded to interview all of the female students in Jesperson's 2001-2002 and 2002-2003 classes, including Emily, who made no disclosure at that time. Newbold subsequently arranged for both K. and J. to go to Chadwick for forensic interviews. Near the end of February 2003, Newbold, together with the prosecutor, conducted follow-up interviews with K. and Michelle at Toler, and J. at Pacific Beach. Newbold also interviewed numerous staff members at Toler, including the counselor, guidance aide, and principal.
On April 24, 2003, Jesperson was arrested. Afterwards, Newbold assisted the school principal in wording a letter to go out to the parents of students on how to approach their children and question them about the investigation regarding Jesperson. On May 1, 2003, Newbold was called back to Toler to interview Emily, who had recently told the school's counselor that Jesperson had touched her. Newbold then arranged for and viewed Emily's interview at Chadwick. After talking with Emily's mother, Newbold discovered that she had initially reported to a guidance aide at Toler in November 2002, that Emily had been touched on her leg by Jesperson. Nothing had come of that report because the guidance aide explained that Jesperson was just helping Emily tie her shoes.
Two earlier letters had been sent to the parents by the principal after Jesperson had been removed from the school. Two of the letters were sent to all parents of Toler students, but the other was sent only to the parents of children in Jesperson's classes.
Later in May 2003, Newbold seized Jesperson's school and home computers, disks and tapes, which were then checked for child pornography, but none was found. Another teacher, and friend of Jesperson's, had deleted Jesperson's personal files and emails from the school computer sometime in March 2003.
After a preliminary hearing in August 2003, Jesperson was charged with 13 counts of lewd acts with a child against eight different girls (Emily, J., K., Michelle, D., Aimee, Renne, and Teresa).
The First Trial
The first trial commenced in March 2004. In addition to presenting the above evidence about the reports of touching by Jesperson and the investigation by Newbold, each of the alleged child victims testified in the prosecution case.
Specifically, Emily testified that when she was in Jesperson's third grade math class at Toler, he touched her more than once while she was standing by him as he sat at the back table in the classroom checking her math assignments. The touching was over her underwear, but inside her pants in the back area on her "private parts," as well as on her back, her legs, and possibly her neck. Emily did not recall if Jesperson had touched her in the front area of her "private parts." Nor could she remember if it happened on the same or different days. Emily eventually stated she believed the touching occurred every day when Jesperson checked her math sheets. She first told Newbold that there had been no bad touching, but then learned from others that the touching was "bad." After her mother received a letter from Toler about the molestation allegations, Emily told her mother about the touching.
Emily's mother, who testified through a Spanish interpreter, stated that in November 2002, Emily told her that Jesperson would tell her she was very pretty in math class and then touch her legs and back. Emily also said that Jesperson would tickle her with his fingers on her back under her shirt and that he did that with "all of us." Emily's mother told Emily to tell Jesperson to stop that and also went to the school and told Mrs. Nellie Goodwin, a guidance aide who spoke Spanish, "what was going on." Goodwin told her she would take care of the matter. On May 6, 2003, Emily's mother received a call from the school about the touching and learned about "how he really touched her" after Emily's interview at Chadwick.
Emily's unredacted videotape of her interview at Chadwick was entered into evidence and played for the jury, as were the unredacted videotapes of the interviews of the other seven alleged victims. Several social workers who conducted the forensic interviewing of the alleged victims at Chadwick testified in general about the techniques used for such interviews and also about delayed reporting.
Also in the prosecution case, various relatives of the other alleged victims testified as well as the San Diego police officer who took Michelle's mother's initial report of molest, Toler's principal, its counselor, the guidance aid and other teachers. San Diego Unified School District counselor Heather Medlock testified that when she went around to all the classrooms to do a presentation about "good touch/bad touch" for the children in September 2002, Jesperson told her she need not give the presentation to his students because he had "already done the presentation for them." Special Education Assistant Connie Murphy, who worked in Jesperson's classroom one-on-one with a male student during the 2002-2003 school year, testified that when approached by Goodwin about a reported touching in November 2002, she told Goodwin that Jesperson had only touched Emily on the leg while teaching her how to tie her shoes. Goodwin told Murphy not to mention their conversation to anyone. Murphy never saw Jesperson touch any student in an inappropriate manner.
Jesperson did not testify in his defense at the first trial. He called numerous witnesses, including family members and friends, who testified as to his good character and the fact each had never seen him act inappropriately around children. A number of teachers and other school personnel testified that Jesperson was a good teacher who cared for his students.
The teacher who replaced Jesperson in his classroom, Jane Badger, testified that in April 2003, Aimee, one of the alleged victims, told her that Emily "was telling everyone that [Jesperson] had touched her on the leg." Badger talked with Emily's other third grade teacher and also went to the principal, leaving the principal a message that Emily had been talking to other children on the playground about being touched on the leg by Jesperson. Another day, Aimee approached Badger to tell her that her mother had been crying the day before with Emily's mother about Emily being touched. Several days later, Aimee reported that she had been touched on her shoulder and hip by Jesperson. Badger also testified that K. came in her classroom one day to help with a project after regular hours, and after about 15 minutes asked Badger if she knew why she was there at Toler. A few minutes later, K. said, "Well, he is never coming back and I get to go to Children's Hospital tomorrow and miss school . . . ."
The defense also presented testimony from several experts. A psychologist testified about the variables that can affect a young child's report of sexual abuse, including being interviewed and questioned numerous times as well as talking with friends, and opined there was a need for corroboration for such reports. A forensic psychologist, Dr. Clark Richard Clipson, testified he had evaluated Jesperson by giving him the Minnesota Multiphasic Personality Inventory (MMPI), a general test of personality functioning, and administering a test called the Hare Pyschopathy Checklist (Hare), scoring it based on a review of the available records and an interview with Jesperson, to determine whether he was a psychopath or not. Based solely on the checklist after his examination of Jesperson, Clipson opined Jesperson did not have "a diagnosis of pedophilia or a specific predisposition to molesting young children." In other words, Clipson did not believe Jesperson was a pedophile or that he displayed any signs of sexual deviance or abnormality. Clipson did not use the results of the MMPI in his evaluation, because he considered the results invalid as Jesperson had responded to the test in a defensive manner, which is not uncommon for someone accused of a crime.
On cross-examination, Clipson conceded that the raw data of Jesperson's MMPI had been sent to an institute in Los Angeles for computer scoring and an independent assessment. That assessment found Jesperson "extremely guarded and self-favorable in his approach [to the test, and] that in some cases such extreme guardedness has covered over psychotic disorders that were not previously fully reflected in their profiles." Clipson did not believe that the MMPI results had any bearing on whether Jesperson has a disposition to commit sexual offenses against children.
In closing, defense counsel essentially argued that any touching of the alleged victims, which was not corroborated, had been innocent, without any sexual intent, and that the delayed reporting was a product of suggestions from other classmates, parents, interviewers, school letters, and Newbold who reinforced any suggestion the alleged touching was "bad." As noted earlier, the jury only returned a guilty verdict on count 11 involving Emily, and did not find the multiple victim allegation to that count true.
The Second Trial
After denying Jesperson's new trial motion and ruling on in limine motions, the second trial commenced in May 2004 on charges Jesperson had molested six of his young students (Michelle, D., K., Renne, Aimee and J.). The prosecution case was much the same as at the first trial, with each of the alleged minor victims testifying and their respective interview videotapes being played for the jury. This time Emily testified and her videotape was shown to the jury as propensity evidence of other acts of molest pursuant to Evidence Code section 1108. The prosecution also read excerpts of Michelle's earlier testimony at the preliminary hearing and first trial to the jury.
Jesperson testified in his own defense at the second trial, presented an expert on "suggestibility," and again called numerous witnesses about his good character as a person and teacher. Clipson did not testify at the second trial. After defense counsel read into the record portions of Renne's, K.'s and J.'s earlier preliminary hearing and trial testimony, the prosecution read additional parts of those girl's testimony into the record in rebuttal. During closing argument, defense counsel played portions of Detective Newbold's interview with Emily and J., telling the jurors, "You can watch the videos for yourself," and decide if "Detective Newbold had some influence over these kids."
As noted above, the jury eventually returned a guilty verdict on count 1 involving J., not guilty verdicts on counts involving D., Renne and Aimee, and found the attendant multiple victim enhancement allegation to each count untrue. The court declared a mistrial on the remaining counts involving J., Michelle and K., and subsequently overturned the count 1 conviction when it granted Jesperson's motion for a new trial.
The Third Trial
After Jesperson entered a double jeopardy plea to the seven counts and attendant enhancements in the second amended information charging him with lewd acts against Michelle, J. and K., and the court ruled on in limine motions, testimony began December 7, 2004, in the third trial.
A. Prosecution Case
As in the first and second trials, the prosecution presented the above mentioned evidence concerning the reporting of abuse and the subsequent investigation. In addition to the testimony of Newbold, Toler's principal, several teachers, a computer expert, and the guidance aide Goodwin, the following evidence was presented regarding the three alleged victims.
1. Michelle
Michelle, who was 10 1/2 years old at the time of the third trial, testified that when Jesperson was her second grade teacher he touched her "front private part," moving his hand in a circular motion over her clothing on more than one occasion as she sat at a reading table in class. Using a doll, Michelle pointed between its legs in the vaginal area to show where she had been touched and stated the touching felt "bad." Michelle believed the touching started before Halloween, and although she did not like Jesperson after that, she wrote him a Christmas card that year and signed it "Love," from her and her family. Michelle did not tell her parents during that time because, "I think I was embarrassed."
Michelle believed she was in the third grade when she first told her friend K. about the touching as they sat in the school cafeteria and Jesperson walked by them. Michelle still did not tell her mother about the touching at that time, but did so only after she told another friend Vanessa about the touching, and Vanessa said she should tell her parents.
According to Michelle's mother and father, who each testified, in January 2003, when Michelle was reading something to her mother, she stopped and told them that Jesperson used to touch her "front [private] part" and moved his hand up and down when she was reading to him. Michelle indicated she did not say anything sooner because she liked Jesperson's class and did not want to be moved. When Michelle's father asked her if she were telling the truth, she replied, "That's why I didn't tell you because I didn't think you would believe me." Michelle's mother then reported the touching to Goodwin at Toler, who told her that, "This is not the first time we have had a report about this teacher." When Michelle's mother did not hear back from the school that day, she called the police.
At trial, Michelle's mother further testified she had observed unusual behavior in Michelle in the middle of second grade. She explained that Michelle did not like to read as much as before; she did not want to go to school some days, saying her head or stomach hurt; and she stopped wanting to stay late for after school programs. Michelle's father also noticed Michelle acting differently during second grade, saying at that time she did not want to go to the bathroom unless the door was open and he or his wife was standing outside within hearing distance; she wanted to sleep between them in their bed; and she did not want to go outside by herself. This behavior went away by the end of that school year.
When a police officer spoke with Michelle after receiving her mother's call, Michelle indicated that Jesperson had touched her about "five times" when she was in his second grade class. She explained that the touching occurred when Jesperson would have her come up and sit in a chair next to his desk to read a book for him. While she was reading, he would reach over, rub her in her vaginal area over her clothes, and say she was doing a good job. Michelle did not use the word "vagina," but rather pointed to that area when asked where she was touched. Michelle told the officer she did not tell anyone at the time because she was afraid.
In response to defense counsel's questioning, Michelle's mother on cross-examination explained that after the police officer had talked with Michelle about the allegations of touching, Michelle scribbled out Jesperson's photo on a class picture, saying "if it wasn't for him, I wouldn't have to go to the Children's Hospital for this interview." Also after the allegations surfaced, Michelle's mother had found a knife under Michelle's pillow on several occasions and said that Michelle had come into the living room one time holding the knife and threatening to kill herself. Michelle had also thrown up and had tried to jump out of the car when the family had come to court one time. Michelle's parents sought counseling for Michelle in April 2004 and have also filed a civil lawsuit.
2. J.
J., who attended a different school in the third grade, testified at the third trial that on more than one occasion when she was in second grade at Toler, Jesperson "touched [her] in the wrong places and [it] felt uncomfortable." She explained that during class, while she was standing next to his desk or a reading table at the back of the room, Jesperson, who would be sitting and still teaching class, would pull her underwear down with one hand and touch and rub her skin between her legs in the area where she goes "pee." She thought the touching felt like being brushed with a "feather," and did not know whether it was "good or bad" touching at that time. When the touching was happening, the other children would usually be at their desks. She told Jesperson to stop once, and he did, but it started again. She did not tell an adult about the touching because she did not want to get Jesperson in trouble. When Newbold first talked with J. at her new school, J. told her no bad touching had happened.
J. could not remember when she first told her friend K. about the "bad" touching, but she believed it was when K. was at her house for a sleepover. K. then told J.'s parents because J. was afraid to do so. When her parents first asked her what had happened, J. denied anything happened because she was afraid it was her fault and that she would get in trouble. She eventually told her parents the next day about the touching after her mother kept reassuring her that it would not be her fault if something had happened. When J. was reinterviewed by Newbold, she told her Jesperson had pulled down her "nylons" and had touched her legs. J. used the word "nylons" to mean underwear.
On cross-examination, defense counsel read into the record parts of J.'s preliminary hearing testimony and segments from both the first and second trials regarding her statements that any touching was on her legs and that she never used the word "nylons" to describe her underwear. Counsel also read statements from J.'s second trial testimony into the record where J. stated she sometimes had difficulty telling the difference between dreams and real life. J. conceded that when she went back to Toler for a Halloween carnival in the Fall of 2003, she ran up to Jesperson to greet him.
3. K.
K., who attended school in Temecula at the time of the third trial, testified that when she was in second grade at Toler, Jesperson touched her with his hand "on my leg from my knee up" on more than one occasion. She explained that the touching would happen in the classroom while she was sitting down reading a book next to Jesperson who was sitting at his desk. The touching, with his hand moving up and down, would sometimes be over her clothing, when she was wearing pants, and sometimes on the skin of her thigh, when she was wearing a dress. K. did not tell anyone at first "because [she] didn't really know if it happened to anyone else." At some point in third grade, K. talked to her friend Michelle about the touching. K. could not remember the exact sequence of her reporting, but remembered she told her mother about the touching after talking with Michelle about it, and that she talked about the touching with Goodwin at Toler "along with the other girls," as well as with Newbold and the social worker at Children's Hospital.
On cross-examination, K. conceded she had told the social worker that nothing really happened to her, but "it happened to my friends." K. also remembered talking on the playground and the steps outside the classroom with Michelle and other girls named Vanessa and Renne about the touching. Defense counsel read into the record statements from K.'s preliminary hearing that the touching was only "over" her clothes and on the "front of the calf area and above the knee halfway between the knee and the thigh."
K.'s mother testified that when she picked up K. from school in late January 2003, K. told her about Jesperson touching her on her leg up and down near her crotch area and that she and some others had reported the touching to Goodwin. K.'s mother told her she needed to make sure she and her friends were telling the truth because it could hurt Jesperson and his family and career. When Newbold later talked with K.'s mother, K.'s mother told her she was not sure how serious K.'s statements were because K. had also told her she thought Jesperson was just comforting her when he touched her. K.'s mother acknowledged that K. and J. were best friends who talked on the phone regularly and often had sleepovers.
Additional Evidence
As in the second trial, the prosecution presented Emily's and her mother's testimony in the third trial as evidence of other acts of molestation under Evidence Code section 1108. Their testimony was essentially the same as it had been at the first trial. In addition to Emily testifying about Jesperson having touched her on her private parts when he corrected her math papers, she also remembered he had helped her tie her shoe once and that the special education assistant for a boy in that class also had helped her tie her shoes. Emily's mother additionally testified that one day when she was tickling Emily's leg, Emily told her that was what her math teacher does to her. Emily also told her mother that Jesperson put his hand underneath her shirt and rubbed her, a type of playing that he did with everyone.
On cross-examination, Emily remembered that some letters came to her home from the school saying something about Jesperson being arrested for "violating a girl." After receiving the letters, Emily's mother asked her numerous questions about Jesperson and touching, and Emily also talked to friends at school about the letters.
Catherine McClennan, a forensic interviewer with the Palomar Pomerado Health Systems child abuse evaluation program, testified that abused children often delay reporting abuse because they are afraid of getting themselves or others in trouble. McClennan believed that the cognitive or developmental abilities of children aged 7-10 years old make it difficult for them to identify or estimate details of an event such as time, date, the number of occasions it happened, and how long it lasted.
As she did at the earlier trials, Toler's school counselor Medlock testified about Jesperson telling her she need not do a "good touch/bad touch" presentation for his class in September 2002 because he had already covered that topic with his students. On cross-examination, Medlock said that when she interviewed Emily on May 1, 2003, about some rumors at Toler, Emily told her that she had been touched "[f]rom her back down to her bottom." Medlock had walked to Emily's classroom to get her for the interview as Emily was upset because "[s]he felt like she was the reason why Mr. Jesperson went to jail." The written report generated from that interview stated that Emily said Jesperson touched her on the back "in a way that made her feel uncomfortable. . . ." When Medlock questioned her further, Emily said she "felt she was the only one that [Jesperson] was touching, and that she was afraid to turn in her math homework because when she went up to the table, . . . that's when the touching occurred."
A social worker from Chadwick then testified about the videotaping of forensic interviews of possible child abuse victims and in general about the proper techniques used for such interviews. On cross-examination the social worker explained how the interviews and other questioning by parents, teachers, and police could affect a child's memory. As in the previous trials, the videotaped interviews of Michelle, K., J. and Emily were then played for the jury.
The reporter's transcript reveals that the tapes of the interviews involving Michelle and K. were redacted for the third trial. The redacted transcripts for those two videotapes are not included in the appellate record.
At the close of the case-in-chief, the prosecutor had read into the record some prior consistent statements and other portions of transcripts from J.'s and Michelle's earlier court testimony at the preliminary hearing and second trial.
Defense Case
As he did at the second trial, Jesperson testified in his own defense at the third trial. Jesperson had been at Toler since 1998, working first in the library and then teaching second grade starting the next school year. He began teaching third grade in the 2002-2003 school year. Since 1999, Jesperson had also worked with the "6 to 6" program at Toler, a program designed to help students with homework and academics before and/or after normal school hours. The program required the use of a computer in his classroom, and staff would often enter the classroom unannounced to use it while he was teaching. Additionally, other individuals, such as the principal, other teachers, students' parents, the janitor, and other staff members, had an "open invitation" to enter Jesperson's classroom unannounced. When he taught third grade, special education assistant Murphy was also assigned to his classroom, including during math class, to aid an autistic boy student.
Jesperson said he always kept the door and windows to his classroom open. A large kidney-shaped table used for guided reading was located near the classroom door in the back where two to six students would sit to read together and he would sometimes sit next to them to help them read. Usually the student would sit on his right side when he was helping with reading, as he cannot hear out of his left ear.
Jesperson testified he was very affectionate with his students, often patting them on the back or leg to say "excellent job" when they sought his attention. If he needed a student to stop reading, Jesperson would pat them on the leg or back and tell the student to "hold on." He would often hold their hands when he walked the young students to the school cafeteria or outside for recess. Other times, his students would run up to him, grab his hands and give him a hug. Because he had large hands and the small size of the children, Jesperson conceded that patting them on their knees might mean his hand was also patting them on their thighs. Jesperson denied ever touching a student inappropriately.
With regard to the specific alleged victims in this case, Jesperson testified that Michelle and K., who were students in his second grade class in the 2001-2002 school year, daily sought his attention, even when they were no longer in his class, and even after the alleged touching. Both girls had begged to be in his third grade class for the 2002-2003 school year. Michelle had even given him a Christmas card during the 2001 holiday season and a gift bag after the 2001-2002 school year. Jesperson denied he had ever touched Michelle in the genital area. Nor had he ever pulled down J.'s "nylons" or underwear and touched her in the genital area. Although he had touched Emily's leg when he helped her tie her shoe one day, Jesperson denied he had ever put his hand down the back of her pants.
Other Defense Evidence
A number of witnesses testified in the defense case that Jesperson's classroom door, windows and blinds were always open, and that when they frequently entered his classroom unannounced they never saw Jesperson inappropriately touching any of the children. None of the other teachers or school staff at Toler noticed any change in Michelle's or K.'s behavior toward Jesperson between second and third grade.
Several experts also testified in Jesperson's defense. Dr. Clipson, who had testified in the first trial, testified he had evaluated Jesperson using several tests to determine if he had a mental disorder that predisposes him to commit a sexual offense. After administering the tests, Clipson determined there was "no evidence of any kind of psychopathology," of a personality disorder, or of any kind of sexual deviance. Although Jesperson had appeared very defensive and guarded on a first MMPI test, which is common for someone who has never been accused of a crime, he came out "less guarded" on a second MMPI test, which indicated "an absence of psychopathy." Clipson conceded on cross-examination that if all the alleged facts in this case were true, then Jesperson would qualify under the psychological definition of a pedophile.
Dr. Calvin Colarusso, a psychiatrist, testified he had evaluated Jesperson and found no evidence of psychopathology, psychiatric disease, or anything abnormal. Colarusso opined that Jesperson was not a pedophile.
Dr. Alison Clarke-Stewart, who had also testified at the second trial and was a psychology professor who focused on the study of child development, memory, and suggestibility, found that memories can be falsely influenced by the suggestion of others and that children are more prone to suggestibility than adults. Although not permitted to give her opinion as to whether the alleged victims' claims of touching in this case were a product of suggestions, Clarke-Stewart explained that if children are led to believe someone is a bad person, they will reinterpret actions that were innocuous as inappropriate.
Vanessa, a young student at Toler during the time of the alleged inappropriate touchings, testified in the defense case that one day on the playground at school when Michelle said Jesperson had touched her right thigh and back and K. said he had touched her on the shoulder that she told them "that's child molesting" and they should tell their mothers. Vanessa said she had learned about child molesting from a television program.
The defense also called numerous witnesses, including family members and friends, who testified as to Jesperson's good character and the fact that each had never seen him act inappropriately around children. Five children, who were either family members of Jesperson or friends of Jesperson's, testified that Jesperson never touched them inappropriately.
A number of school personnel and parents additionally testified that Jesperson was a good teacher who cared for his students. Specifically, Badger, the teacher who replaced Jesperson in his classroom after his removal, testified as she did at the first trial. She stated that in April 2003, children in her class were talking about Jesperson's arrest and the fact that Emily was telling others Jesperson had touched her. Badger also testified that before K. was to have her social worker interview, she bragged that Jesperson was "never going to get out [and that she was getting ] to go to the hospital tomorrow."
In closing, defense counsel argued that all the jurors had heard was "inconsistent, incredible, unbelievable [uncorroborated] statements" of seven and eight-year-old children "about the most unlikely person to have committed these crimes." Counsel asserted that the talking among the girls about the touching and their repeated questioning by parents, friends, school staff, social workers, and police influenced their perceptions of any touching and reports of molestation. Counsel claimed that the children were "getting trapped in a story [that] they start[ed] to believe." Counsel asked the jury to view Michelle's and Emily's videotapes for examples of such suggestions, and played a part of Emily's tape during argument. Counsel stressed that the expert testimony and unimpeached character evidence presented "more than proof beyond a reasonable doubt that this man is innocent." The jury determined otherwise.
DISCUSSION
I
JUROR MISCONDUCT
Jesperson contends that prejudicial juror misconduct deprived him of his constitutional right to a fair trial at both the first and third trials. Specifically, he claims three jurors committed prejudicial misconduct during deliberations at the first trial and that one juror committed prejudicial misconduct during deliberations at the third trial. In the alternative, Jesperson asserts the trial court abused its discretion in refusing to conduct an evidentiary hearing on the claims of jury misconduct in the first trial before it erroneously denied his new trial motion on such ground. We separately address his contentions after setting forth the basic relevant law.
A. The Law
Because a criminal defendant has a constitutional right to have the charges against him determined by a fair and unbiased, impartial jury (U.S. Const., 6th & 14 Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings)), he or she may be entitled to a new trial "[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented." (§ 1181, subd. 3.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it" ' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton).)
Where the defendant seeks a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. (People v. Duran (1996) 50 Cal.App.4th 103, 112 (Duran).) First, the court must determine whether the proffered evidence of jury misconduct is admissible under Evidence Code section 1150, subdivision (a). (Duran, supra, at pp. 112-113.) With certain narrow exceptions, "evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict." (Hamilton, supra, 20 Cal.4th at p. 294.)
Evidence Code section 1150, subdivision (a) provides that, "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."
Secondly, if the court finds that some or all of the evidence is admissible, "it must then consider whether the [admissible] facts establish misconduct." (Duran, supra, 50 Cal.App.4th at p. 113.) In other words, the court focuses on whether the admissible evidence in the supporting declarations shows "any overt event or circumstance, 'open to [corroboration by] sight, hearing, and the other senses' [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias." (Hamilton, supra, 20 Cal.4th at p. 294; fn. omitted; original italics.) Juror declarations that show by admissible evidence "a direct violation of the oaths, duties, and admonitions imposed on . . . jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, . . . or shares improper information with other jurors" (Hamilton, supra, 20 Cal.4th at p. 294) generally establish juror misconduct. (See also People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler); Duran, supra, 50 Cal.App.4th at p. 112.) For example, declarations giving evidence that one or more jurors disregarded admonishments or instructions of the court by discussing an improper topic generally show overt acts of misconduct going beyond the juror's mental state and the question becomes whether there was any prejudice caused by such misconduct. (See People v. Hord (1993) 15 Cal.App.4th 711, 721-729 (Hord); People v. Perez (1992) 4 Cal.App.4th 893, 907-908.)
In determining whether the admissible evidence shows juror misconduct, the court in its discretion may conduct an evidentiary hearing to resolve material conflicts in the facts showing a strong possibility of prejudicial misconduct. (Duran, supra, 50 Cal.App.4th at p. 113.) In this second step, the admissible evidence must show serious misconduct of a nature likely to have affected the verdict. (People v. Hill (1992) 3 Cal.App.4th 16, 35, disapproved on another point in Nesler, supra, 16 Cal.4th at p. 582, fn. 5.)
Finally, if the court finds that misconduct has occurred, it "must determine whether the misconduct was prejudicial." (Duran, supra, 50 Cal.App.4th at p. 113.) In this regard, once misconduct has been shown, prejudice is presumed and reversal is required "unless the reviewing court finds, upon examination of the entire record, there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment. [Citations.]" (Ibid.)
Moreover, specifically regarding claims a juror has brought to deliberations extraneous information derived from their personal knowledge and experience rather than from the trial evidence in violation of well established law that "[j]urors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law" (People v. Karis (1988) 46 Cal.3d 612, 642; see also People v. Barton (1995) 37 Cal.App.4th 709, 715), we apply the standards set out in In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).
"To summarize, when conduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (Ibid.)
In reviewing the denial of a new trial motion based on alleged juror misconduct, we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence, but independently review the trial court's determination of whether the juror misconduct resulted in prejudice. (Nesler, supra, 16 Cal.4th 561, 582; see also People v. Ault (2004) 33 Cal.4th 1250, 1261-1262 (Ault).)
With these general rules in mind, we address Jesperson's assertions of juror misconduct in turn.
B. Alleged Juror Misconduct at the First Trial
Background
In his motion for new trial filed after the first trial, Jesperson claimed, among other things, that he "could not receive a fair trial because two of the jurors held undisclosed biases and two jurors injected their specialized knowledge of teacher training and psychological [MMPI] testing into deliberations, improperly influencing fellow jurors." In support of the motion, he submitted declarations from Juror Nos. 9 and 10, as well as from his counsel's law partner and private investigator. Based on the declarations, Jesperson specifically claimed that Juror No. 7 failed to disclose a hidden bias against his trial counsel Robert Boyce, improperly accused Juror No. 10 "of being a racist to persuade the juror to change his vote," and disregarded the court's instructions not to discuss and consider his failure to testify. Jesperson further asserted that Jurors Nos. 1 and 12 were both actually biased and that each improperly discussed their respective specialized knowledge during deliberations. He additionally asserted that Juror No. 12's bias was shown by the fact he discussed during deliberations a matter the court had admonished him and other jurors not to consider regarding a perceived unfairness to Emily's mother during closing arguments.
The People opposed the motion, including making evidentiary objections under Evidence Code section 1150, and submitted purported declarations from Juror Nos. 1, 4, 6, 7 and 12, as well as a copy of Dr. Clipson's testimony concerning the MMPI test and results.
At the hearing on the new trial motion, the court ruled on the admissible parts of each declaration and offers of proof and heard argument, in which defense counsel alternatively requested an evidentiary hearing to resolve the conflicts between the declarations and offers of proof. The court then ruled it did "not believe that the level of prejudicial misconduct is established, and the request for a new trial [on that ground] is denied." The trial judge then explained:
Jesperson's counsel waived the defects of execution in the purported declarations filed by the People, accepting them as offers of proof for purposes of the motion for new trial.
"Specifically, the Court finds that the juror discussions or remarks about the denial of seating does not rise to the level of misconduct. The Court adequately instructed them in a timely fashion that the jurors should not allow any of their observations to figure into their deliberations. And I do not believe that there is prejudice to the defendant as a result of any comment or observation made. [¶] As to the teacher and training proposed testimony, that does not rise to the level of misconduct. [¶] Similarly, with respect to the comments on the M.M.P.I. training and experience, I do not believe that that rises to the level of misconduct, either. [¶] The failure to testify was a comment in passing and did not enter into the deliberations. [¶] As far as Juror Number Seven's alleged comment regarding Mr. Boyce's past representation, I do not believe that the comments rise to the level of expressing a bias against the defendant, or for that matter against Mr. Boyce because of that representation. Based upon the allegations that are made, I don't see that there has been a connection between the Westerfield representation and the alleged negative comments, so I don't see that there has been misconduct established."
On appeal, Jesperson challenges the court's ruling on grounds it improperly determined the credibility of the submitted declarations and offers of proof, failed to conduct an evidentiary hearing to resolve the conflicts in the admissible portions of the declarations, and erroneously concluded there was no prejudicial misconduct. As we explain, we agree the trial court abused its discretion in finding no prejudicial juror misconduct at the first trial.
Analysis
Here, the court found admissible certain statements in the supporting declarations and offers of proof showing that during deliberations Juror No. 12 discussed his teacher training regarding the touching of young children and the denial of courtroom seating for Emily's mother, Juror No. 1 discussed his specialized MMPI training and experience, and Juror No.7 mentioned Jesperson's failure to testify and made negative comments about Jesperson's attorney. Such statements described overt acts admissible under Evidence Code section 1150. Based on such evidence, however, the court found no misconduct and that there was no showing of prejudice to Jesperson as a result of any comment or observation made. The questions before U.S. are whether the court's findings regarding no misconduct in the first instance was supported by substantial evidence, and, if not, whether the misconduct was prejudicial.
1. Claimed Misconduct by Juror No. 1
During voir dire, Juror No. 1, who was vice president of operations for the San Diego Trolley and had served as the company's expert witness in litigation, told the court that he had no training in psychology. Later during trial, Dr. Clipson testified about the limitations of the MMPI test to determine whether a person was a child molester and also talked about malingering, which means that someone may be faking answers to questions asked, when discussing the results that showed Jesperson had appeared guarded and evasive in his answers to the MMPI.
Subsequently, as mentioned above, the declarations and offers of proof revealed that Juror No. 1 discussed his training and experience with MMPI testing during deliberations. The supporting declarations of Juror Nos. 9 and 10, stated Juror No. 1 informed the other jurors that he had knowledge about how the MMPI works because all job applicants with the San Diego Trolley system had to take the test. Juror No. 1 explained what the MMPI was supposed to test and informed the jurors "that if a job applicant does not perform favorably on the MMPI, then he would not hire the applicant, because they might be hiding something. [He] further said Mr. Jesperson's MMPI test results meant he was hiding something related to the charges."
In his own opposing offer of proof, Juror No. 1, who was the foreman for the first trial, conceded that "[d]uring the discussion of the MMPI[,] I explained in layperson's terms, what I believed Dr. Clipson's testimony to be. I stated that the test was a general personality test, that . . . if the computer invalidates someone's MMPI, that would mean that the person's answers may not be consistent with how the person really thinks." Juror No. 1 denied suggesting any evidence outside of what was heard in court about the MMPI and denied he had stated it meant "that Jesperson was hiding the truth about molesting the girls," reiterating that "based on Clipson's testimony, that the MMPI is not even designed to determine whether someone molested a child." Offers of proof by Jurors Nos. 4, 6, 7 and 12 agreed Juror No. 1 talked about the MMPI testing, but remembered he only stated he used the test to screen applicants for his work, repeated that the test could not tell whether someone is a child molester as testified to by Clipson, and did not tell them the MMPI results meant Jesperson was hiding the fact that he molested the girls.
The court found the comments on the MMPI by Juror No. 1 did not rise to the level of misconduct. Relying on In re Malone (1996) 12 Cal.4th 935 (Malone), Jesperson argues this finding is not supported by the evidence and law because the improper injection of extrajudicial expertise or specialized information into the deliberations on a matter at issue is misconduct. (Id. at pp. 947-948, 963.) However, even assuming the court's finding of no misconduct was unsupported because Juror No. 1 couched his offer of proof in terms of giving explanations about the MMPI to lay jurors thereby assuming an expert tone or role going beyond just giving an opinion on a technical subject within a person's education and background (see People v. Steele (2002) 27 Cal.4th 1230, 1266), the admissible parts of the evidence presented do not show that Juror No. 1 offered the other jurors some basis for deciding the case against Jesperson other than on the trial evidence and testimony. (See People v. Yeoman (2003) 31 Cal.4th 93, 161 (Yeoman).) Although Juror No. 1's remarks were thus arguably improper, after reviewing the entire record, including Clipson's cross-examination testimony in which he discussed the possibility the result of guardedness in some cases could cover up disorders and other matters not disclosed, we find no substantial likelihood that Juror No. 1's remarks indicated bias on his own part or were likely to have influenced any juror. (Carpenter, supra, 9 Cal.4th at p. 653.) Moreover, as in Malone, "[t]he People have successfully rebutted the presumption of prejudice [on this point] by showing the externally derived information was substantially the same as evidence . . . presented to the jury in court." (Malone, supra, 12 Cal.4th at p. 964.) No prejudicial misconduct is shown on this point.
2. Claimed Misconduct by Juror No. 7
During jury selection, Juror No. 7 remained silent when defense counsel Boyce and the court inquired of the prospective jurors if any of them had a similar bias as the prospective juror who had just been removed for cause after voicing hostility against Boyce because of his involvement in the David Westerfield case, a widely publicized capital case involving the molestation and murder of a seven-year-old girl in San Diego County. The court admonished the entire jury panel about defense attorneys representing many different clients and told them that if anyone were holding that fact against Boyce, he or she needed to bring it to the court's attention. Later, when another prospective juror from a different panel commented on Boyce's representation of Westerfield, the court reiterated its earlier advisements about revealing any bias against the attorneys, explaining that it "really need[ed] to know if anybody is secretly feeling [the] way [the removed juror felt about Boyce]." Juror No. 7 did not respond and said there was no reason she would not be fair and impartial.
Before deliberations, the court instructed the jurors that they were not to "draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way." (CALJIC No. 2.60.)
Supporting declarations from Juror Nos. 9 and 10 alleged that during deliberations Juror No. 7 mentioned or discussed Jesperson's failure to testify and made comments critical of Boyce, mentioning that he had poorly represented Westerfield who had gone to prison and that "this is the kind of clients that Mr. Boyce likes to represent." Juror No. 10 also declared that Juror No. 7 had "accused [him] of being a racist, stating 'Maybe you don't like Mexicans.' "
Juror No. 7 submitted an offer of proof, denying that she or any other juror had accused Juror No. 10 of being a racist during deliberations. Juror No. 7 conceded, however, that she had asked Juror No. 10 "something to the effect of, 'do you have a feeling that you distrust Spanish speaking girls?' "
Juror No. 7 also admitted that "[b]efore any balloting, and before any discussions about the facts, I stated, 'I wonder why [Jesperson] did not take the stand.' I immediately caught myself and said, 'we are not to consider that, I am sorry.' " She acknowledged that another juror had also said the jury was not to consider Jesperson not testifying and said no further mention was made about the subject. She additionally noted that after the verdict was returned, she told Boyce, in response to his question about what everyone thought about Jesperson not testifying, that she had "wondered about it, but we did not consider it."
Juror No. 7 additionally conceded that during deliberations she had "agreed with one other juror that [she] would not have hired Mr. Boyce, since [she] did not think he did a good job in the trial," but claimed her comment was not part of the jury discussions. She noted she had never met Boyce before this trial and denied she had made a statement in deliberations similar to the one she remembered from the larger jury selection process made by a woman who was excused because she said "this is the kind of clients that Mr. Boyce likes to represent." Juror No. 7 declared she was "truthful in answering the Court's voir dire questions that [she] could be fair to both sides in this case."
Offers of proof by Jurors Nos. 1, 4, 6 and 12 agreed with Juror No. 7 that the fact Jesperson did not testify was not discussed by the jury as part of their deliberations on the charges. The other jurors further declared that the topic of Boyce representing Westerfield never entered into the jury discussions, and none of them heard anyone call Juror No. 10 a racist.
In it's ruling, the court accepted the fact that Juror No. 7 had made a comment about Jesperson's failure to testify, but found no misconduct because the comment was made in passing and did not enter into the deliberations. This finding is one involving Juror No. 7's credibility, which the trial court is uniquely positioned to determine and to which we generally must defer if supported by the evidence. Similar to the situation in Hord, supra, 15 Cal.App.4th 711, where the brief mention of that defendant's failure to testify was held not to be prejudicial misconduct, we believe Juror No. 7's passing wonderment why Jesperson did not testify here was not prejudicial misconduct. Although this matter is not to be discussed, there is no indication in the admissible portions of the declarations or offers of proof "of any open discussion or agreement among the jurors evidencing a deliberate refusal to follow the court's instructions." (People v. Elkins (1981) 123 Cal.App.3d 632, 638.) The jury was well aware that Jesperson had not testified and thus "the comments [about his not testifying] did not interject any new material into deliberations that was not already known by the jury from the trial itself. Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion." (Hord, supra, 15 Cal.App.4th at pp. 727-728.) The declarations show that Juror No. 7, as well as one other juror, immediately admonished anyone listening to the query about Jesperson not testifying that such matter could not be considered. This evidence supports the trial court's finding that even though a "forbidden element" was raised in the jury room, there was no substantial likelihood that Jesperson suffered actual harm. (Id. at p. 728.)
Although the court did not specifically rule on the admissibility of the supporting declarations from Jesperson's cocounsel and the defense investigator, it is noted that any purported conflicting evidence as to whether Juror No. 7 "considered" or just mentioned Jesperson's failure to testify constitutes hearsay as to what Juror No. 7 purportedly told Boyce and cocounsel in the hallway after the first trial verdict. We presume the court considered this fact when it determined the credibility issue.
This same analysis applies to the allegation that Juror No. 7 committed prejudicial misconduct by commenting about Boyce and his former representation of Westerfield. Although the court appears to have accepted as true the allegations that Juror No. 7 made negative comments about Boyce and referred to his previous representation of Westerfield, it also found there was no nexus shown between those statements and Boyce's former representation of Westerfield to support a finding of bias on Juror No. 7's part. To make such findings, the court necessarily credited as true Juror No. 7's offer of proof that she was only commenting on what she thought was Boyce's representation of Jesperson in this case, that she did not know Boyce before this trial, and that she had not answered untruthfully during voir dire when she stated she could be fair and impartial to both sides. Again, this is a finding involving credibility to which we defer if supported by the evidence. Although Juror No. 7 concededly made negative comments about Boyce, another matter the court had told the jurors they were not to consider, the offers of proof submitted by Juror Nos. 1, 4, 6 and 12 all agreed that there was no discussion about Boyce representing Westerfield during their deliberations. These, together with Juror No. 7's offer of proof, provide evidence to support the court's credibility findings regarding Juror No. 7's comments about Boyce not rising to the level of misconduct by "expressing a bias" against Jesperson, or Boyce because of his former representation.
As to the allegation Juror No. 7 accused Juror No. 10 of being a "racist," thereby committing misconduct by improperly injecting racism into the deliberations and further evidencing her bias against Jesperson (see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110), we note that the trial court did not specifically comment on such assertion in its reasons for finding no prejudicial jury misconduct. Although it is clear from all of the declarations that the deliberations at some point became heated and harsh words were unfortunately exchanged between several jurors, Juror No. 7 denied she accused Juror No. 10 of being a racist and the offers of proof from three other jurors indicated they never heard her or any other juror do so. This evidence is sufficient to rebut the allegation that Juror No. 10 was specifically accused by Juror No. 7 of being a racist and supports the court's implied finding no misconduct was shown by such allegation.
Moreover, even accepting as true for the sake of argument that Juror No. 7 asked Juror No. 10 at one point about "disliking Mexicans," causing Juror No. 10 to feel like he was being accused of racism, because we cannot delve into the jurors' mental processes in reaching their verdicts, we are not permitted to consider how Juror No. 10 perceived or was affected by those statements. (Evid. Code, § 1150; People v. Hedgecock (1990) 51 Cal.3d 395, 418.) Further the fact that Juror No. 7 may have asked Juror No. 10 whether he "distrust[ed] Spanish speaking girls," does not in and of itself reveal an accusation of racism on this record where several of the mothers of the young victims testified in Spanish with the help of an interpreter. The bottom line is that "[j]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means." (People v. Johnson (1992) 3 Cal.4th 1183, 1255.) Thus, even assuming such remarks by Juror No. 7, we can find no substantial likelihood of bias in view of their brief nature and the surrounding circumstances. (Carpenter, supra, 9 Cal.4th at p. 653.)
3. Claimed Misconduct by Juror No. 12
During voir dire, Juror No. 12, an Hispanic elementary school teacher who had been teaching for 32 years, said he was willing to listen and try to be fair and impartial in this case. In response to the prosecutor's question of whether he would lean more toward the side of the teacher because he was a teacher, "or as a client, do you think that would make you feel impartial towards the defense of this case," Juror No. 12 said, "No, because I get along with some teachers and I don't get along with other teachers, so no." He later replied to an inquiry of how he felt about sitting in judgment of another teacher that he could "imagine how [Jesperson] feels," because Juror No. 12 had been accused several times by a parent or student of things he did not do when he was only trying to help.
When defense counsel asked all the prospective jurors "does anybody think that it's improper for a second- or third- grade teacher to have any physical contact with his students," Juror No. 12 was silent.
Later, during trial and immediately before the defense closing arguments, when it was observed that Emily's mother was prevented from taking the last seat in the courtroom by one of Jesperson's supporters and escorted out of the courtroom, Juror No. 12 sent a note to the court expressing concern about Emily's mother not being able to be in the courtroom to hear closing argument. The court admonished the jury not to concern itself with whether a spectator in the courtroom was on one side or the other and reminded them that, "you must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. [¶] What is your task? Both the People and this defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict, regardless of the consequences. That is your task."
Subsequently, declarations from Juror Nos. 9 and 10 revealed that during deliberations, Juror No. 12 discussed "his 30 plus years of elementary school teacher training [and] adamantly stated that he was taught in his teacher training [for his state credential] that teachers are not to touch students." He also was taught "that male teachers are never to touch female students ever, on any part of the body." He said that things like this did not happen in his school district in San Ysidro.
Juror No. 9 also related that Juror No. 12 told all the jurors during deliberations "that in Mexico, because teachers are revered, the first Hispanic mother to make a report to the school about Jesperson would not have been as assertive as an Anglo person. . . . Juror number 12 explained the school did nothing when Emily's mother reported her daughter was touched because Emily's mother was not persistent or persuasive." When the deliberations became heated, Juror No. 12 yelled at Juror No. 10 that he hoped his children "are molested by a teacher."
Additionally, both Juror Nos. 9 and 10 also heard Juror No. 12 complain during deliberations that it was "unfair that Emily['s] mother, who testified during trial, did not have a seat in the [courtroom] during closing arguments and Mr. Jesperson's family and supporters did have seats."
In his opposing offer of proof, Juror No. 12 stated that "[b]ecause of my background as a teacher, I was the first to admit that I wanted to go to bat for teachers, since many people attack teachers." He did not mention or refute the allegations he had talked during deliberations about his teacher training on not touching students. He acknowledged, however, that he had expressed his concern during deliberations that "one of the victim's mothers did not get to sit in the courtroom during closing arguments." Juror No. 12 stated that other jurors also had noticed that fact, but said there was no discussion or deliberations about it.
The other offers of proof filed in opposition to the motion generally stated Juror No. 12 did not threaten Juror No. 10 during deliberations and that even though he did discuss his training as a teacher, he did not "introduce expertise or new evidence that we did not already hear." Juror Nos. 7 and 12 also had noticed Emily's mother was denied a seat during the closing argument and that the courtroom was "packed with Jesperson supporters," and agreed that a passing comment was made about such observation in the jury room, but denied that topic entered into their deliberations.
In its ruling, the court found neither the juror discussion about Emily's mother being denied seating in the courtroom or Juror No. 12's teacher training rose to the level of misconduct. Again, relying on Malone, supra, 12 Cal.4th 935, Jesperson argues the court's finding regarding Juror No. 12's teacher training is not supported by the evidence and law because such injected into the deliberations extrajudicial expertise or specialized information on a matter at issue in this case, i.e., whether teachers may touch their students. (Id. at pp. 947-948, 963.) Jesperson also claims that contrary to the court's finding otherwise, Juror No. 12's expression of concern regarding Emily's mother again during deliberations after being admonished by the court not to discuss or consider that matter constitutes misconduct and further evidences Juror No. 12's actual bias against him. We agree.
Although "it is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a . . . subject, so long as the opinion is based on the evidence at trial" (Malone, supra, 12 Cal.4th at p. 963), it is improper and constitutes misconduct where a juror claims to have specialized expertise or knowledge on a matter at issue which provides the other jurors some basis for deciding the case other than the evidence and testimony presented at trial. (Yeoman, supra, 31 Cal.4th at p. 161.) At the first trial, none of the school teachers or administrators testified about the training a teacher goes through regarding policies on touching students. Juror No. 12's remarks during deliberations about his specialized teacher training on such issue, and in particular the no-touch policy regarding young female students, thus injected into the discussions outside information which could convey to the other jurors that anyone with a teaching credential would necessarily have received the same training on touching and thus provide some basis for deciding the case against Jesperson not covered by the trial evidence. (Ibid.) Therefore, we cannot find substantial evidence supports the trial court's finding of no misconduct in this regard.
Further, although many of the jurors observed Emily's mother being denied a seat in the courtroom before the defense closing argument, only Juror No. 12 complained to the court about the matter. He and the other jurors were admonished by the court to disregard this fact and not to discuss the matter further. Juror No. 12's disobeyence of this admonishment shows another overt act of misconduct on his part.
Because we determine that Juror No. 12's sharing with the other jurors his specialized teacher training in this case and his continuing comments regarding Emily's mother were evidence of acts of misconduct, the question becomes whether the trial court abused its discretion in not finding any prejudice caused by such misconduct. (See Carpenter, supra, 9 Cal.4th at p. 653; Hord, supra, 15 Cal.App.4th at pp. 721-729.) We believe it did.
As mentioned earlier, once misconduct is shown, prejudice is presumed and reversal is required unless a review of the entire record reveals "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment. [Citations.]" (Duran, supra, 50 Cal.App.4th at p. 113.) And, in respect to instances of misconduct involving the injection of outside information into deliberations, the verdict will be set aside if juror bias is shown either by a determination the outside information judged objectively "is inherently and substantially likely to have influenced the juror[, or a review of] the nature of the misconduct and the surrounding circumstances [show] it is substantially likely the juror was actually biased against the defendant. [Citation.]" (Carpenter, supra, 9 Cal.4th at p. 653.) Under this second test, "even one biased juror requires overturning the verdict" (id at p. 652) and a court must do so "[even if] . . . an unbiased jury would have reached the same verdict." (Id. at p. 654.) We believe both tests of bias are shown here.
Although the People attempted to rebut the presumption of prejudice by its offers of proof, essentially claiming that when Juror No. 12 discussed his training as a teacher he did not discuss any new evidence that the jury had not already heard as evidence at the trial, those assertions were conclusionary and not borne out by the record. As noted above, no other teacher or school administrator testified at trial on the subject matter of teacher training regarding the touching of students.
Nor do we find persuasive the People's argument that Jesperson knew Juror No. 12 was a teacher and therefore he should expect him to bring his background and training experiences into the deliberations. Although Jesperson certainly knew from voir dire that Juror No. 12 was a teacher, he could not possibly expect Juror No. 12 to go against his oath and the court instructions to be impartial and only consider the evidence at the trial in determining Jesperson's guilt or innocence and disclose outside specialized information regarding teacher training. Juror No. 12 had remained silent during voir dire when the jury panel as a whole was asked whether anyone thought it was improper for a teacher to have physical contact with his students. At that time he did not disclose that his teacher training had taught him it was improper for a teacher to have such contact with his students, especially female students. Rather, Juror No. 12 answered questions in a manner to suggest he was actually somewhat biased in favor of teachers, but could put that aside and be fair and impartial. In addition, he reiterated that suggestion in his offer of proof, which tellingly does not even address the allegation he improperly shared the outside teacher training information in deliberations. We, therefore, believe that Juror No. 12's disclosure of his "no-touch" teacher training to other jurors "tends to demonstrate that [he] intended the forbidden [extraneous] information to influence the verdict and strengthens the likelihood of bias." (Nesler, supra, 16 Cal.4th at p. 587.) Moreover, such disclosure shows that Juror No.12 "did not disregard the out-of-court information to which [he] had been exposed, but rather kept that information in mind and [was] influenced by it in considering the issues that arose during deliberations." (Id. at p. 584.)
We further believe that Juror No. 12's comments and concerns regarding the lack of courtroom seating for Emily's mother, his yelling at Juror No. 10, which he did not deny in his offer of proof, as well as other outside statements he made during deliberations about the San Ysidro school district and about Hispanic mothers being deferential to teachers in Mexico, indicate other overt acts evidencing his actual bias.
Having thoroughly reviewed the entire record, we find "there appears a substantial likelihood of juror bias" on Juror No. 12's part. (Carpenter, supra, 9 Cal.4th at p. 653.) Not only is the "extraneous material, judged objectively" likely to have "inherently and substantially" influenced Juror No. 12, "the nature of [his] misconduct and the surroundings circumstances" make it "substantially likely [he] was actually biased against [Jesperson.]" (Ibid.) Therefore, the conviction on count 11, involving Emily, in the first trial, must be reversed. (Ibid.)
It light of this conclusion, Jesperson's alternative argument that the trial court abused its discretion in not conducting an evidentiary hearing regarding juror misconduct at the first trial is moot.
C. Alleged Juror Misconduct at the Third Trial
Background
In Jesperson's motion for a new trial after the third trial, filed one day before the scheduled sentencing, he again claimed, among other things, that prejudicial juror misconduct deprived him of a fair trial and impartial jury. Based on the declaration of one of the jurors (Juror No. 3), Jesperson asserted that Juror No. 10 had committed misconduct by concealing his bias and injecting his own experience as a child molestation victim into the deliberations at a crucial point. Specifically, Juror No. 3 stated that Juror No. 10 informed the other jurors during discussions on the inconsistency in J.'s reports about the touching that he had been molested when he was younger, which he had disclosed to the court and counsel, but that "when he told the court about the molest, he realized he told the judge more facts than he originally reported to the police after the molest."
At the hearing on the matter, defense counsel argued that even though Juror No. 10 had disclosed in voir dire that he had been molested as a child, he shared information during deliberations that was not received as evidence at trial and that by doing so he disregarded his representation to court and counsel that his childhood molestation would not affect him during deliberations. Counsel believed that the information Juror No. 10 told the other jurors evidenced his state of mind, "that he could not be fair" and that the statements objectively influenced others because "it was an explosive comment interjected into deliberations, relating an individual experience of a juror at a critical point when the discussions were why the children failed to report immediately and why there were inconsistencies in their statements and went to the heart of the defense." In the alternative, counsel requested a hearing before the court denied the motion on juror misconduct grounds.
The People opposed the motion, arguing there was no misconduct or hidden bias shown because Juror No. 10 had fully disclosed his childhood molestation during voir dire and there was only speculation that he somehow coerced or persuaded others on the jury.
Before ruling, the court took a recess in the proceedings because it had only heard about the People's opposition to the motion in court. The prosecutor clarified that she had emailed her opposition to defense counsel and had filed it with the court that day. After reading the papers and considering the arguments, the trial judge stated:
The People's written opposition to the new trial motion is not part of the appellate record.
"As to the motion for new trial, on the ground of juror misconduct, . . . first I would note that the record is not established that this juror failed to disclose to the Court in voir dire any material parts of his history that he then later relied upon which would then demonstrate some sort of actual bias existing against this defendant. [¶] The potential for misconduct in this set of circumstances, it is the discussion of his background and his appreciation of certain real life experiences that caused him to make the comment to the effect that he had disclosed more in court than he had earlier in his life at other times when he had disclosed a similar problem, that as being a victim of somewhat similar activity. [¶] I think there is a fine and very difficult line to establish between relying on personal experience and establishing oneself as an expert in the courtroom, or in the jury room, more specifically, with an effort then to improperly influence other jurors. [¶] [What w]e know from experience, from the strength of the jury system, is that everyone comes to the jury room with a wealth of real life experiences, and it's the lessons that people draw from their lives that give them the wisdom to make decisions. And the question is, is this the kind of comment that . . . casts this person in the role of expert that profound[ly] influences, materially influences, and substantially influences, the outcome of these deliberations. [¶] Or is it one comment, the voice of practical experience, which can be easily weighed and measured by all of the jurors. [¶] More importantly, I think the Court needs to ask whether this is the type of discussion that would evidence a bias on the part of this juror, and I think, my conclusion, based upon listening to the evidence in the case, listening carefully to the evidence on both sides of the case from the real experts who testified as to the meaning of delayed disclosures or changes in testimony, that the comments that are evidence in this record attributed to the juror in question do not reflect an actual bias, and furthermore, do not rise to the level of misconduct. [¶] And, even in the event that they are to be characterized as misconduct, I do not see how they prejudice the outcome of this case. So the motion for new trial on that ground is denied."
Jesperson challenges the court's ruling on appeal, arguing, as he did below, that Juror No. 10 committed prejudicial misconduct during deliberations by sharing his own molestation experience with the other jurors and specifically telling them that he had told the court more about it than he had told the police soon after the molest at the crucial time when the jury was discussing J.'s credibility. After carefully reviewing the entire record in light of the above law and the evidence presented on the motion, we believe the trial court abused its discretion in finding no prejudicial misconduct at the third trial.
Analysis
During jury selection for the third trial, before the prospective jurors were given questionnaires to fill out, the court identified the nature of this case and discussed the issues they would be required to address if they were selected as jurors. Based on the answers to those questions, the court and counsel conducted one-on-one private voir dires for anyone requesting some confidentiality in discussing certain aspects of their answers. When Juror No. 10 privately talked to the court and counsel, the court inquired about an indication in one of Juror No. 10's answers that something had happened to him when he was about six or seven "in the woods." Juror No. 10 explained, "You know, I didn't really remember it until your questions probed. . . . The fellow was about 15, 16 years old, and I think he was slightly mentally disturbed. And what I really remember about it is that he literally just pulled down my pants, and I pulled them up and ran like hell. . . ." Juror No. 10 continued, saying, "And really what I remember is that my brother of eight years senior to me was really saying, you know, he was very upset that I was -- and so, I went to -- to the police station, and they asked me, you know, what went on. Asked me too many times that I felt embarrassed to really -- he wanted me to show him what the guy did to me which, you know, was really strange. But other than that, it sort of just went away. And then, like three years later, he did walk by my house when my father and brother were outside. And I mentioned to them that that was the guy, and so they went up to him and just confronted him. Really nothing went on." Juror No. 10 agreed that the incident would not impact how he would view this case. In response to later questioning by the prosecutor, Juror No. 10 stated that although he certainly "could relate to those girls," he would be able to hear what they had to say and could be a fair judge of their credibility.
Subsequently, as noted above, Juror No. 3 declared that during deliberations when the jurors were discussing J.'s inconsistent reports and why she did not report the touching, Juror No. 10 told the other jurors that he had been molested when he was younger and that when he had disclosed such fact during voir dire to the court, he had told the judge more than he had told the police at the time of the molest. This declaration was uncontested. Because the prosecutor made no evidentiary objections to its contents, the court did not rule that any portion of the supporting declaration was inadmissible in the first instance. We believe that this declaration shows "a direct violation of the oaths, duties, and admonitions imposed on . . . jurors, [specifically, the sharing of] improper information with other jurors." (Hamilton, supra, 20 Cal.4th at p. 294.) Juror No. 10's statements to the other jurors during deliberations show he disregarded the court's admonishment and his own assurance during voir dire not to consider his own molestation and delayed reporting in determining the credibility issues at this trial and thus provides evidence of an overt act of misconduct going beyond the juror's mental state. (See Hord, supra, 15 Cal.App.4th. at pp. 721-729.)
Contrary to the People's assertion on appeal that the statements in Juror No. 3's declaration regarding the timing and nature of the misconduct are inadmissible under Evidence Code section 1150, as only going to "the mental state and deliberative process" (see Ault, supra, 33 Cal.4th at p. 1258), the timing and surrounding circumstances of a juror's wrongful sharing of information during deliberations is admissible to provide vital evidence to the reviewing court from which the prejudice determination can be made. (See Nesler, supra, 16 Cal.4th at p. 585.)
The question thus becomes whether the trial court erred in finding Jesperson suffered no prejudice because of the misconduct. We believe so. As noted above, once misconduct is shown, prejudice is presumed and reversal is required unless our independent review of the entire record reveals "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment. [Citations.]" (Duran, supra, 50 Cal.App.4th at p. 113.) Regarding misconduct involving the injection of extraneous information into deliberations as here, the verdict will be set aside if juror bias is shown either by a determination the information judged objectively "is inherently and substantially likely to have influenced the juror[, or a review of] the nature of the misconduct and the surrounding circumstances [show] it is substantially likely the juror was actually biased against the defendant. [Citation.]" (Carpenter, supra, 9 Cal.4th at p. 653.)
Although Juror No. 10 had disclosed his child molestation to the court and counsel during the private voir dire, the trial court recognized there was a "fine and very difficult line" between a person bringing his or her background and experiences into the jury room during deliberations and a person being considered an expert as to those matters that may be material to issues in the trial. The court found that because "the real experts" at trial had testified "as to the meaning of delayed disclosures or changes in testimony," Juror No. 10's comments were essentially just relating a real life experience which the other jurors could weigh and consider based on that other expert testimony. The trouble with this reasoning, however, is that the experts at trial testified in general and did not relate the delayed reporting and memory and suggestibility problems regarding the changes in stories to any particular child victim, only children in general. Juror No. 10 provided the other jurors with such a child victim who, by relating his own molestation experience and delayed revelations about it, in essence vouched for the credibility of J.'s expanding accusations after her initial denials of any inappropriate touching. Therefore, even if the subject matter of Juror No. 10's statements were substantially covered by the expert testimony, his personal information regarding his own molestation was not. We believe those comments, coming when they did in deliberations, certainly provided the other jurors some "real-life" basis for deciding the credibility issues of the alleged child victims in this case against Jesperson other than on that general expert testimony at trial. (Yeoman, supra, 31 Cal.4th at p. 161.)
Moreover, although Juror No. 10 may have meant well when he assured the court and counsel that his previous experience would not influence his view of the case, the fact that he restated his personal molestation experience for the other jurors and told them that he had told the court more than he had told the police at the time of his molest on a case involving the same type of young victim and circumstances of delayed or inconsistent reporting of molestation, evidences a strong potential for bias (People v. Diaz (1984) 152 Cal.App.3d 926, 930, 939 (Diaz)) and highly suggests that Juror No. 10 drew upon his own personal experience to determine Jesperson's guilt. (People v. Blackwell (1987) 191 Cal.App.3d 925, 931.) As Jesperson states in his opening and reply briefs, "[t]here could hardly be a more emotional and prejudicial revelation than for a jury to hear during deliberations from another juror that he was molested as a child and that his molest experience supported the narrative and credibility of the complaining witness." Even though Jesperson knew from voir dire that Juror No. 10 had been molested as a child, he could not be expected to know that Juror No. 10 would violate his oath, assurances and the court instructions to be impartial and only consider the evidence at the trial in determining credibility issues material to Jesperson's guilt or innocence.
This was the third trial in a close case hinging on evidence that had to do with the credibility of the alleged minor victims and Jesperson. There was no corroborating evidence of a physical sort of any touching. Having thoroughly reviewed the entire record of the third trial, we believe "there appears a substantial likelihood of juror bias." (Carpenter, supra, 9 Cal.4th at p. 653.) Judged objectively, Juror No. 10's comments were "inherently and substantially" likely to have improperly influenced the other jurors as well as himself to Jesperson's detriment. (Ibid; Duran, supra, 50 Cal.App.4th at p. 113.) Moreover, purposeful or not, "the nature of [his] misconduct and the surrounding circumstances" make it "substantially likely [Juror No. 10] was actually biased against [Jesperson.]" (Carpenter, supra, at p. 653.) In other words, Juror No. 10's misconduct shows he was unable to render a decision based solely on the evidence received at trial. (Nesler, supra, 16 Cal.4th at p. 583.) We, therefore, disagree with the trial court's assessment of no prejudice. Because the fairness of the trial appears to have been affected by the juror misconduct, the trial court erred in not granting a new trial on that ground. We thus conclude the verdicts involving J., Michelle and K. in the third trial must be reversed. (Ibid.)
II
EVIDENTIARY MATTERS AND INEFFECTIVE ASSISTANCE OF COUNSEL
On this appeal Jesperson asserts as prejudicial error the introduction of the "videotape pre-charge interviews" of J., Michelle, K. and Emily at the third trial, the introduction of those videotapes into the deliberation room, the introduction of voluminous hearsay evidence from Michelle's and J.'s prior testimony at the close of the case-in-chief, the admission of prejudicial hearsay statements during the testimony from Michelle's and Emily's mothers, and the use and admission of large diagrams of a naked girl during K.'s testimony and the reading of J.'s prior testimony. In the alternative, Jesperson contends that if his counsel failed to object or failed to make an appropriate objection to such inadmissible, prejudicial evidence, then he was denied the effective assistance of counsel.
As we explain, even if we were not reversing the verdicts for prejudicial juror misconduct, we would reverse them due to the cumulative prejudicial effect of the jury misconduct combined with counsel ineffectiveness regarding evidentiary matters at the third trial. Although a defendant is not entitled to a perfect trial (People v. Mincy (1992) 2 Cal.4th 408, 454), in light of the history of this case, the record and the importance of credibility in this case, we believe the numerous failings of trial counsel with regard to various evidentiary issues at the third trial together with the juror misconduct combined to deny Jesperson the fair trial to which he is entitled. (Ibid.)
Background
To give some background in addition to the above facts, we note that during in limine motions at the first trial, the subject of the admissibility of the videotapes and various specific statements of the eight victims then alleged, including J., Michelle, K. and Emily, the court and counsel essentially agreed that the court did not need "to articulate any particular basis [for the admission of such evidence] unless pressed by a specific objection designed for the purpose of excluding an individual item from this record." Defense counsel Boyce represented that "everything that we have talked about is probably going to come in under traditional exceptions of the hearsay rule, and the videotape[s], [the prosecutor] and I have pretty much agreed that they are going to come in, and probably the testimony at the preliminary hearing . . . ."
In limine at the second trial, Boyce objected that the videotaped interviews and prior statements of the child witnesses were not admissible under Evidence Code section 1360 or as fresh complaints, citing the recently decided Crawford v. Washington (2004) 541 U.S. 36 (Crawford), arguing such hearsay exceptions were now infirm as violative of the confrontation clause. The court overruled the objection, finding there was no potential for Crawford error in this case because the witnesses were going to be testifying and subject to cross-examination at the second trial. Boyce then stated that the analysis should be under the "more traditional hearsay exceptions of the Evidence Code, such as prior consistent and inconsistent statements and prior recollection recorded." The court agreed, but stated that "[i]f this case gets tried. . . near the way it was tried last time, almost everything is going to be the prior inconsistent or prior consistent statement."
Boyce then voiced concern about portions of the videotapes where "the girls make statements about what they heard from other adults or other girls which arguably could be admissible under [Evidence Code section] 1360, but I don't think very admissible under Crawford or under traditional hearsay exceptions to the Evidence Code." Boyce also thought there was a problem with the prosecutor getting to play the videotape if the child witness testified and she did not remember anything as it would foreclose him from cross-examining the witness regarding a statement she made on the videotape. The court agreed that such concerns as double hearsay on the tapes and the possibility a witness could become technically "unavailable" could potentially be meritorious, but reminded counsel he needed to identify what specifically he was concerned about and then do the analysis for its exclusion. The court stated that "it is a new dawn," and that there might be "some specific material that needs to be excised from specific tapes." When Boyce complained that "the problem is I don't know what the girls are going to say on the stand this time or what they are going to remember," the trial judge stated:
"It is part of the wisdom of not doing that sort of shotgun approach that I did on the subject last time by saying, well, let's all let it all come in, because, you know, we do need to analyze under prior consistent and prior inconsistent statements what is consistent with the testimony of the witness and what is not. And before you get prior inconsistent in, you have to have prior inconsistent statements. And so there is a nice, neat, legal and logical analysis that needs to get done. And maybe that is what we need to do, is to play it by the rules this time."
When the prosecutor complained that it would be difficult to follow the tapes to have to "chop" them up because the statements cut both ways for the prosecution as well as the defense, the court conceded it had oversimplified the issue at the first trial and believed more thought should go into the admission of the tapes and evidence this time. The prosecutor only asked that Boyce advise her "well in advance" if there are any objections so redaction to the tapes could be done by her office in a timely fashion. After further discussion, the court again reminded Boyce that it was incumbent upon him to make an objection in a timely fashion to any portions of the tapes and prior testimony he wanted excluded.
During in limine motions at the third trial, when the court addressed the problem of "statements consistent and otherwise" with regard to K., Michelle and J., Boyce and the prosecutor essentially agreed with the court that the admissibility of evidence regarding those alleged victims would generally be under the same prior consistent or inconsistent statements' analysis as at the second trial because the girls would again be testifying at the third trial.
Later, during Michelle's cross-examination, Boyce started to play her videotaped interview, but then moved on to another subject after a brief off the record sidebar. Then during J.'s cross-examination, after Boyce requested to play her videotape, and the court admonished the jurors that the tape, not the transcript, was the evidence it would have because the parties had stipulated that the court reporter need not write down what "she hears on the videotape," which the parties also stipulated would be true of any videotape that ultimately was played during the course of the trial, Boyce stated, "[i]nstead of wasting the court's time, we will play [the tape] at a different time," because he could only find one copy of the transcript for J.'s tape.
Right before the noon recess that day, the trial judge advised counsel that it had noticed a number of large exhibits "that are currently on display for the jury. Although they have been marked previously, they have not been received into evidence. I don't know if counsel has any concern about that. But generally speaking, things are not published to the jury until they are received into evidence. But if you want to relax the rules, you can relax the rules."
Before the jury was brought into court that afternoon, Boyce objected to the use of the large drawings marked as exhibits on grounds they were "misleading and under [Evidence Code section] 352 and the Fifth, Sixth, and Fourteenth Amendments, I think they're misleading because they're just flat one dimensional drawings of nude girls." Boyce had the same objection for the "use of dolls, too. Because I don't think the dolls are proportional and I think they are also misleading to the jury." The court overruled the objections. It also overruled Boyce's renewed objections made during K.'s testimony on the same grounds to the use and admission of the specific naked girl drawing exhibit on which she had previously made markings as to where on her leg Jesperson had allegedly touched her.
After K. and her mother had testified in the prosecution case, outside the jury's presence before proceedings started the next day, Boyce brought up the fact that when he had wanted to play J.'s unedited tape from the earlier trials during her cross-examination, the transcripts that had originally been in the courtroom were not available and he assumed they were with the prosecutor's office. Boyce complained that the prosecutor had let him "swim[] around up here in the well looking for it," and requested that he be able to play J.'s tape, as well as Michelle's, at the earliest opportunity that day.
The prosecutor explained that even though the videotapes had been edited and were available in the courtroom, the transcripts had been taken back to her office to edit out names, but were still awaiting editing and copying. If Boyce had given her "some fair warning," she could have had the editing expedited and the desired transcripts brought to court. The prosecutor was planning on playing all four tapes the next morning in her case-in-chief and would have all the edited transcripts in the courtroom at that time. She opined that if Boyce, as part of his defense strategy, wanted to play the tapes during his cross-examination of each witness, then he needed to be prepared with technical equipment for the audios and the transcripts. The court ruled that the next morning "was soon enough" to play the tapes. The tapes were played the next day without further objection.
Subsequently, during Emily's mother's testimony, when she related that she had talked with Goodwin at the school to tell her she wanted to meet Jesperson, Emily's mother testified without objection that Goodwin told her, "Look, lady. He was a charlatan." She also added that Goodwin said she did not know why he was there because "[h]e is not a good teacher." Later when Michelle's mother's testified, the court overruled Boyce's hearsay objection on the prosecutor's offer that the answer was "not for the truth of the matter" to the question of what Goodwin said when Michelle's mother told her that Jesperson had touched her daughter. Michelle's mother testified that Goodwin told her, "This is not the first time we have had a report about this teacher," and that Goodwin then started crying and told her not to tell anyone what she had just said.
Just before lunch near the end of the prosecution case, the prosecutor advised the court that, "the only thing I have [left in the case-in-chief] is introduction of prior consistent statements, a few portions of transcripts," which could also come at the end of rebuttal which she preferred, as the copies were still being made. Boyce remarked that he had no idea what the prosecutor was intending to read into the record, but he did not think it was appropriate to permit those prior consistent statements to be read in rebuttal. When Boyce then represented he would not be presenting any other prior inconsistent statements, the court ruled that the prosecutor needed to present those statements at that point.
That afternoon, the prosecutor, with the assistance of a reader, began presenting portions of J.'s previous testimony. After reading 21 pages from her preliminary hearing and second trial testimony, Boyce asked for a sidebar to request that one of Jesperson's character witnesses be taken out of order. When Boyce also complained during that sidebar that "[i]t was represented to me there were going to be prior consistent statements," the court responded that "[s]ome of them are consistent and some of them are not so consistent." When Boyce then added "[a]nd some of them have nothing to do with what the witness testified to earlier," the court stated, "[w]ell, then you need to make objections before the testimony just like any other question." In response to Boyce's further complaints that he had not been provided with any of the transcripts that were being read and did not know the prosecutor was "going to do this today," the court told Boyce he had asked for it to be done today and that "[i]f you are not ready to do it, then maybe we better reconsider your position. Otherwise, let's take [your witness] out of order."
During that reading, another large exhibit of a naked girl with J.'s markings as to where she had been touched was shown to the jury when it was mentioned in her prior testimony.
Based on the context, we presume the reporter's transcript mistakenly indicates it was the defendant who initially complained about the statements rather than Boyce.
After the defense character witness testified and the prosecutor represented she had further readings from Michelle's prior testimony, the court took a recess so Boyce and the prosecutor could "hash out a few things . . . rather than have a series of sidebars." After an unreported recess, the volunteer reader resumed the stand and helped the prosecutor read into the record without further objection 15 pages of Michelle's prior testimony from the preliminary hearing and first trial.
The next day, outside the presence of the jury, the court granted Boyce's request to make clear copies for the defense of the four tapes that had been admitted. Later, after the defense case rested and the parties were discussing the admission of the exhibits with the court, Boyce noted for the record that he had an objection to the videos "because I feel it unnecessarily highlights the testimony of these children. . . ." In response, the trial judge stated:
"Look, I'm going to have a little problem. And I don't want this to sound as harsh as it does, but . . . I have a problem with the intellectual honesty with an argument that says admitting a videotape shouldn't come into evidence or shouldn't be in evidence that has been played for the jury, especially when the jury can request a readback of any testimony that they want and yet there would be no readback of the video testimony of the video. Either you take the good with the bad, and that is -- . . . I would suspect you are going to argue, that the stuff that is on that videotape is not at all consistent with details that they are being told now. How you can argue that that shouldn't come into evidence, I don't understand, frankly."
Boyce clarified that his argument was that "the videos unnecessarily highlight the testimony of these witnesses when any other witness that the jury would request to hear the testimony reread, they would not come back and testify before the jury." Hearing no other objection, the court admitted the videotapes of the four girls into evidence.
Subsequently, at the end of the first day of deliberations, the court received a note from the jury requesting a readback of portions of testimony from all three defense experts and a request that "a T.V. & VCR be in the deliberation room at 9:00 am [the next] morning." The court faxed counsel a copy of the note. The next morning as the jury continued deliberations, the court and counsel discussed the note and the defense request for an admonition and the striking of certain testimony regarding Dr. Clarke-Stewart before any of her testimony was reread to the jury. The court granted the request to strike those portions, but declined to give an admonition. Boyce did not object to the request for the "T.V. & VCR," but requested that the record reflect the parts of the testimony that the jury actually requested reread. The record shows that the court reporter only reread portions of Dr. Clipson's testimony that morning before jury deliberations continued that day. The jury returned its verdicts the following morning.
Analysis
The People are correct that many of Jesperson's assertions of evidentiary error on appeal are technically waived because his trial counsel Boyce either failed to object to the admission of such evidence or failed to timely and appropriately object to the evidence. As the above facts and background show, Boyce did not object to the playing of the four alleged victim's videotapes at the third trial, but rather only did so at the second trial. And, although the People concede that an objection to the admission of the tapes at the third trial would have been futile because it was clear from the discussions at the second trial that the tapes were "coming in," the record does not reflect that Boyce made any specific objections to the tapes during the second trial or until after they had already been played at the third trial. All we can tell on this record is that two of the tapes were edited for playing at the third trial, and that apparently the redacting of those tapes did not cut out all the alleged inadmissible and prejudicial evidence to which Jesperson now objects.
Boyce also did not object to the hearsay statements Emily's mother testified about that Goodwin had made about Jesperson. Nor did he timely or sufficiently object to the admission of the prior testimony of J. and Michelle at the end of the prosecution case. As the record shows, Boyce's initial objection to such evidence was only that it was not proper rebuttal evidence, and when he finally did object in general about some of J.'s prior testimony not being consistent or inconsistent with her third trial testimony, her prior testimony had already been read. Boyce did not then ask that such evidence be stricken and did not make any objection afterward to the subsequent reading of Michelle's prior testimony, parts of which the People concede on appeal "was not introduced to rehabilitate some of the specific testimony that [Jesperson] contends was impeached with a prior inconsistent statement."
Although Boyce did object to the use and admission of the large exhibits of the naked girls before K.'s testimony and J.'s prior testimony was read, he did so only after the court advised him that they were already being displayed so that the jury could view them, and on different grounds than Jesperson raises on appeal. To the extent Jesperson's claim those exhibits were unnecessary or cumulative because the prosecutor also used dolls during the girls' testimony arguably was included in his general objections that the large exhibits of nude girls were misleading and prejudicial under Evidence Code section 352 because they were flat and one-dimensional, we believe the court was well within its discretion to admit such demonstrative evidence on the general objections made. (See People v. Scheid (1997) 16 Cal.4th 1, 13-14; People v. Lucas (1995) 12 Cal.4th 415, 449 (Lucas).)
However, regarding the hearsay objection Boyce did make to Michelle's mother's testimony regarding Goodwin's reply that "[t]his is not the first time we have had a report about this teacher," which the court overruled on the prosecutor's representation it was not offered for the truth of the matter, we believe that in the context of this case, the court erred. The only logical relevance in Goodwin's statement that we can find was for a non-hearsay purpose, that there had been a previous report of molest about Jesperson. Contrary to the People's characterization that the statement was not admitted for the truth of the matter asserted, the court did not so instruct the jury that the statement was so limited.
Moreover, although the record does not expressly show that the jury played the videotapes of the victims during deliberations, or if they did, which ones, we know that the jury had the opportunity to do so because the tapes came into evidence over Boyce's belated and ineffective objections and the jury had requested a television and VCR for the jury room, which we presume was delivered to them and used as no objection to that request was made by Boyce. Even though the trial court has sound discretion under section 1137 to decide what the jury may take into the jury room, and tape recordings in general have been held proper to take into the jury room when admitted as trial exhibits (People v. Walker (1957) 150 Cal.App.2d 594, 603), it is unclear on this record whether the trial court would have precluded such and instead have set up some procedures for the viewing of the videotaped interviews of the children in this case similar to a reread of testimony had a proper objection or a request to do so been made by Boyce at the time the jury requested the television and VCR during its deliberations. Contrary to Jesperson's contention on appeal, the record does not show that Boyce made a specific objection to the jury viewing the videotapes of the alleged victims in the jury room. Because any trial court error in permitting the machinery to view the videotapes to go into the jury room unsupervised has thus technically been waived, we need not address Jesperson's assertion that videotaped interviews of children suspected of having been sexually molested or abused should be treated as depositions that are not permitted to go into the jury room under section 1137 similar to the holding of many out-of-state and federal court decisions. (See United States v. Binder (9th Cir. 1985) 769 F.2d 595, 600-601; State v. Koontz (2002) 145 Wash.2d 650, 657; Young v. State (Fla. 1994) 645 So.2d 965, 967.)
That being said, however, we are faced with a record that is replete with trial counsel failings that allowed the wholesale admission of numerous and repeated statements of the four alleged victims as well as their videotapes, which in addition to any prior consistent or inconsistent statements that may have properly been admissible, contained areas of irrelevant and extraneous discussion by the social workers who did not testify at trial and by the girls recounting hearsay of others which would not fall within a recognized hearsay exception. In light of these omissions and improper or untimely objections, which preclude Jesperson from now raising many of the evidentiary issues on appeal, we turn to his alternative assertion that his trial counsel Boyce was constitutionally ineffective at the third trial.
It is well established that a defendant claiming ineffective assistance of counsel must show that counsel's performance " 'fell below an objective standard of reasonableness . . . under prevailing professional norms' " (People v. Ledesma (1987) 43 Cal.3d 171, 216), and that he was prejudiced, i.e., that absent counsel's errors, there is a reasonable probability of a more favorable outcome. (Id. at p. 218.) "Reasonable probability" means a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); Lucas, supra, 12 Cal.4th 415, 436.) A defendant must show that his counsel's deficient performance rendered the result of the proceeding or trial unreliable or fundamentally unfair before his claim of ineffective assistance of counsel will have merit. (Lockhart v. Fretwell (1993) 560 U.S. 364.)
In deciding an ineffectiveness claim, we generally "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Strickland, supra, 466 U.S. at p. 690.) "Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trial for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 509.)
With specific regard to the admission of evidence, an ineffective assistance claim cannot be established for the failure to object to such admission where "there is no sound legal basis for objection." (People v. Cudjo (1993) 6 Cal.4th 585, 616.) In addition, even if there is a basis for objection, " ' "[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence." [Citation.] "In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." [Citation.]' [Citation.]" (People v. Majors (1998) 18 Cal.4th 385, 403.) In other words, "if the record does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently." (People v. Stewart (2004) 33 Cal.4th 425, 459, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, although the record sheds no light on why Boyce did not more thoroughly redact the videotapes, did not object timely to their admission, did not specifically object to the hearsay and irrelevant portions of the tapes or the prior testimony of J. and Michelle that were not qualifying consistent or inconsistent statements, and did not object to the television and VCR going into the deliberations room, given the sound legal basis for such objections, the history of this case and the closeness of the credibility issues at stake, we simply cannot find any satisfactory explanation or rational tactical purpose for Boyce's failures. Because the alleged victims' credibility was central to Jesperson's case, we believe that any reasonably competent attorney who had been through the two earlier emotionally charged trials involving these allegations of child molestation against Jesperson, where there was no physical evidence to support the charges and evidence of suggestive questioning and interviews by parents, social workers and school officials as well as delayed and inconsistent reporting by the children of the alleged inappropriate touchings by Jesperson, would have made the evidentiary objections and videotape deletions to which Jesperson now raises as error on appeal.
Further, we believe that any reasonable attorney would have followed through on the trial court's advisements made in limine at the second trial that counsel needed to make timely and appropriate objections to the proposed admission of evidence concerning the minor witnesses so that the prosecutor would then have to establish the relevance of such evidence, and if hearsay, show its foundational requirements for admissibility under an exception to the hearsay rule. (See People v. Morrison (2004) 34 Cal.4th 698, 724.) The failure of Boyce to make such objections in this case was ineffectiveness on his part.
The question remains whether Jesperson was prejudiced by the deficiencies in Boyce's representation we have found. As noted earlier, the standard for showing prejudice from unreasonable performance of a defense counsel is whether there is a reasonable probability of a different result. (Strickland, supra, 466 U.S. at pp. 693-694.) However, the question is not whether a defendant would more likely than not have received a different verdict with the evidence omitted or included due to counsel's failings, but rather, whether in the absence or inclusion of such evidence the defendant received a fair trial that resulted in a verdict worthy of confidence. (Ibid.) A reasonable probability of a different result is accordingly shown when the error undermines confidence in the outcome of the trial. (Williams v. Taylor (2000) 529 U.S. 362.)
Although it is generally not enough for a defendant to show the errors of counsel had some conceivable effect on the results of a proceeding to show " 'a probability sufficient to undermine confidence in the outcome' [citations]" (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218), where as here, the credibility of the alleged victims was so crucial, we simply cannot say we have confidence in the outcome of the trial. In other words, we believe Mr. Boyce's combined malfeasances deprived Jesperson of a trial that was reliable and fundamentally fair. Because allegations of child sexual abuse are inherently inflammatory by nature, evidentiary errors that are allowed to occur through the failings of counsel necessarily have a more serious and likely prejudicial impact than in other cases. (See People v. Stanley (1967) 67 Cal.2d 812, 820.)
Moreover, on this record, we believe the cumulative effect of the prejudicial incidents of ineffective assistance of counsel and the juror misconduct at the third trial, not to mention the trial court's evidentiary error in allowing damaging hearsay comments by Goodwin regarding Jesperson, completely undermined Jesperson's constitutional right to a fair trial. (People v. Holt (1984) 37 Cal.3d 436, 459; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Accordingly, we reverse the verdicts returned in the third trial against Jesperson.
Although these statements by themselves might not be prejudicial, they further add to the prejudice brought about by Boyce's ineffective preparation regarding the videotapes and prior testimony and his failures to properly object to the overwhelming amount of other irrelevant, hearsay comments noted above.
As a result of these reversals, the trial court's true findings in the bifurcated proceeding after the third trial are necessarily also vacated as allegations or enhancements attached to an underlying felony are not separate crimes and cannot stand alone. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.)
III
DOUBLE JEOPARDY AND RETRIAL
Although our resolution regarding the third trial makes it unnecessary to discuss Jesperson's other evidentiary and instructional error contentions raised on appeal, we consider for the guidance of the court and parties Jesperson's double jeopardy claim that retrial of the section 288, subdivision (a) offenses and their attendant one-strike allegations at the third trial was barred.
As already noted, Jesperson was found guilty after the first jury trial of a lewd and lascivious act in violation of section 288, subdivision (a) against Emily and the jury also found the allegation to that count "not true" that Jesperson had committed "an offense of . [s]ection 288[, subdivision] (a) against more than one victim within the meaning of [s]ection 667.61[, subdivisions] (b)(c)(e)." Essentially relying on the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Seel (204) 34 Cal.4th 535 (Seel) that a penalty enhancement must be treated as " 'the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict' " (id. at p. 548, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19), Jesperson contends that the "not true" finding for the one strike allegation was tantamount to an acquittal of all the substantive charges involving all alleged victims other than Emily at the first trial and thus double jeopardy barred retrial of all the other counts in the third trial. He also argues that the same double jeopardy arguments apply to the second jury's not true finding to the one strike allegation accompanying the one section 288, subdivision (a) count involving J. (count 1) which the jury convicted him on but was later overturned by the grant of his new trial motion. Alternatively, Jesperson claims that the not true findings at least barred retrial of the section 667.61 multiple victim allegations accompanying those counts. As we explain, double jeopardy principles did not bar retrial of the substantive charges of child molest at the third trial, and with the exception of the one strike allegation accompanying the count 1 charge involving J., did not bar retrial at that trial of the other one strike allegations attendant to the other counts.
"The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15, of the California Constitution, guarantee that a person shall not be placed twice 'in jeopardy' for the 'same offense.' The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.] Under both federal and California law, greater and lesser included offenses constitute the 'same offense' for purposes of double jeopardy." (People v. Bright (1996) 12 Cal.4th 652, 660-661 (Bright), overruled on other grounds in Seel, supra, 34 Cal.4th at p. 550, fn. 6.)
In this case, no charge of section 288, subdivision (a) involving Emily with an attendant allegation of multiple victims under the one strike law was retried at the second or third trial. Therefore, there was technically no subsequent prosecution for the "same offense" following an acquittal or conviction that violated double jeopardy principles based on the "not true" finding accompanying the first trial conviction. Because the jury could not reach a verdict on the remaining section 288 counts involving other victims at the first trial, the jury did not acquit Jesperson as he argues. Generally retrials after jury deadlocks such as in the first trial are permissible.
Moreover, the granting of a motion for new trial as to the one count of section 288 in the second trial involving J. will not be considered an acquittal unless the record unmistakenly indicates the trial court applied the substantial evidence test and concluded no reasonable trier of fact could find guilt beyond a reasonable doubt on the evidence at that trial. (Cf. People v. Hatch (2000) 22 Cal.4th 260.) No such showing has been made in this case. Thus, the retrial of the substantive charges involving J. in the third trial also would not generally violate double jeopardy principles.
The problem in this case appears to arise solely from the "not true" findings accompanying the conviction involving Emily in the first trial and the one overturned conviction involving J. in the second trial. Contrary to Jesperson's representations otherwise, the respective juries in the first two trials, did not make any findings that the one strike multiple victim allegations attendant to the deadlocked counts were not true. Rather the jury in each of those trials left those verdict forms and findings blank regarding the other victims in both trials and the other count (count 2) involving J. in the second trial. Thus as to those counts, no double jeopardy principles would appear to bar retrial either on those substantive charges or their attendant section 667.61 allegations.
Jesperson, however, argues that based on the wording of the instruction given the jury at the first and second trials regarding the one strike allegations, the prosecution essentially converted the jury's required findings on that allegation accompanying the count involving Emily at the first trial and the count involving J. at the second trial into a determination of his guilt or innocence as to every named victim regardless of the jury's inability to reach a verdict on the other substantive counts and their attendant allegations. To state this assertion, which Jesperson reiterated at oral argument, is to show its weakness. Regardless of the wording of the instruction given for the one strike allegation, each allegation was specific to the count it accompanied and was understood by all parties to be required to satisfy the pleading and proof mandated for sentencing on that count under the alternative scheme provided by the one strike law if multiple victims were found to be involved in this case.
In both the first and second trials, the court instructed the jury as follows on the section 667.61 allegation: "In addition, it is alleged in [each count], that in the commission of the crimes charged, to wit: Committing a lewd act upon a child, in violation of . . . section 288[, subdivision] (a), the defendant committed the offense against more than one victim, within the meaning of . . . section 667.61[, subdivisions] (b), (c), and (e). [¶] Now, if you find the defendant guilty of any count, . . . you must then determine whether that defendant committed the offense against more than one victim; namely, any of the other named alleged victims, . . . . [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] And you will be required to include a special finding on that question in your verdict, using a form, the verdict form that will be supplied to you for that purpose."
The only concern then would be whether the "not true" finding attendant to the one conviction involving J. in the second trial which was overturned should have precluded retrial of the one strike allegation accompanying her overturned conviction. Logically, it appears the only reason the juries in the first and second trial made their respective not true findings on the one strike allegations was that they were both instructed that if they found Jesperson guilty of any section 288, subdivision (a) count, they "must [then] determine" whether the allegation was true that he had committed the offense against more than one victim, "namely, any of the other named alleged victims. . . ." Because the jury could not determine that Jesperson was guilty or not guilty of the section 288, subdivision (a) charges against the other victims, by reasonable inference, there was only one victim of a section 288, subdivision (a) and not multiple victims involved to satisfy the requirements for the one strike allegation, which is not a sentence enhancement, but rather " 'an alternative and harsher sentencing scheme for certain enumerated sex crimes' when a defendant commits one of those crimes under specified circumstances. [Citations.]" (People v. Acosta (2002) 29 Cal.4th 105, 118-119 (Acosta); see also People v. Mancebo (2002) 27 Cal.4th 735, 741-742.) Because the jury was actually deadlocked on those other counts, we believe their findings on the allegation attendant to the count involving Emily at the first trial and the allegation attendant to the count involving J. at the second trial reflect their inability to make a unanimous finding of guilt or innocence and thus are not in substance real "not true" findings based on insufficiency of proof.
Nevertheless, to the extent Jesperson is arguing that this essentially inconsistent finding regarding J. with the other deadlocked verdicts falls within the same offense and lesser and greater offense analysis required by Blockburger v. United States (1932) 284 U.S. 299, Apprendi, supra, 530 U.S. 466 and Seel, supra, 34 Cal.4th 535, we take a closer look.
With regard to the double jeopardy prosecution for the same offense after conviction,the U.S. Supreme Court in Blockburger stated: "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Citations." (Blockburger, supra, 284 U.S. at p. 304.) In Brown v. Ohio (1977) 432 U.S. 161 (Brown), the U.S. Supreme Court expanded on the "same offense" test established by Blockburger, concluding "If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. Citations."(Brown, supra, 432 U.S. at pp. 165-166.) In essence, Brown, supra, 432 U.S. 161 "establishe[d] the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. [Citation.]" (Jeffers v. U.S. (1977) 432 U.S. 137, 150 (plur. opn.).) In doing so, "Brown reaffirm[ed] the rule that one convicted of the greater offense may not be subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for 'the same offense.' [Citations.] Because two offenses are 'the same' for double jeopardy purposes unless each requires proof of an additional fact that the other does not, [citation], it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. [Citation.]" (Jeffers, supra, at pp. 150-151, fns. omitted.)
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt regardless of whether it is labeled a sentencing provision or an element of the offense. (Id. at p. 490.) In a footnote, the high court indicated that, "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." (Id. at p. 494, fn. 19.) Thus it seems that under Apprendi,a statutorily defined offense and that same offense plus one or more allegations increasing punishment, other than the fact of a prior conviction, constitute the "same offense" within the meaning of the Fifth Amendment's double jeopardy clause under the Blockburger test.
Exceptions to this principle apply, including where "the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence" (Brown, supra, 432 U.S. at p. 169, fn. 7), or where the defendant has successfully brought a statutory new trial motion. (See United States v. Scott (1978) 437 U.S. 82, 91, 99 (Scott).)
Moreover, the California protection against double jeopardy declares that "[p]ersons may not twice be put in jeopardy for the same offense" (Cal. Const., art. I, § 15) and has been interpreted to provide more protection of defendants' rights than those provided under the federal double jeopardy clause. (People v. Fields (1996) 13 Cal.4th 289, 297-298 (Fields).) In Fields, the California Supreme Court concluded that under both the federal and state Constitutions, where a jury deadlocks on a greater offense but returns a verdict of conviction on a lesser offense, the legal necessity doctrine prevails over the doctrine of implied acquittal and retrial of the greater offense is not constitutionally barred. (Id. at pp. 302-303.) However, the court in Fields then determined that retrial may nonetheless be precluded by section 1023 which "implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses. [Citations.]" (Fields, supra, at p. 305-306.)
Section 1023 provides: "When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading." "Under [this statute] . . . when a defendant is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense." (Fields, supra, 13 Cal.4th at p. 296, fn. omitted.) This rule applies even where the jury deadlocks on the greater offense and its verdict of guilty on the lesser included offense does not imply intent to acquit the accused of the greater offense. (Id. at pp. 295-296, 305-307.)
In Seel, supra, 34 Cal.4th 535, our high court followed the analysis from Apprendi to find that the defendant there, who was convicted of attempted premeditated murder, and whose premeditation finding under section 664, subdivision (a) was overturned on appeal for insufficient evidence, that federal double jeopardy principles barred retrial of the premeditation charge. (Seel, supra, 34 Cal.4th at p. 541.) The court explained that, "[b]y 'expos[ing] the defendant to a greater punishment than that authorized by the jury's guilty verdict' [citation], section 664[, subdivision] (a) is 'the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.' [Citation.]" (Id. at p. 548.) Thus the court in Seel accepted that after Apprendi, the premeditation allegation (§ 664, subd. (a)) "constitutes an element of an offense [and] is not a typical sentencing determination, like a prior conviction allegation, to which double jeopardy protections do not apply. [Citation.]" (Seel, supra, 34 Cal.4th at p. 550.) The court in Seel explained that the traditional or typical sentencing enhancements or provisions involved a defendant's recidivism which was different than other allegations that increased a defendant's sentence based on the commission of the offense to which it was attached. (Id. at pp. 548-549.)
Applying this law, Jesperson seems to argue that the section 288, subdivision (a) conviction involving J. in the second trial was necessarily a conviction of a lesser offense, with the greater offense being the one strike law multiple victim allegation, which, if found true, would increase the punishment covered by the jury's guilty verdict of the lesser lewd conduct offense. Therefore, based on the reasoning of the above law, retrial of both the lesser and greater offense, the one strike allegation, or at least the greater offense, was barred for the same count involving J. at the third trial.
Even assuming, however, that under Apprendi, supra, 530 U.S. 466 and Seel, supra, 34 Cal.4th 535, the one strike law allegation is considered an element of an offense, because it does not relate to recidivism (Acosta, supra, 29 Cal.4th at p. 127), the conviction on the so-called lesser offense, the section 288, subdivision (a) conviction, was overturned by Jesperson's successful new trial motion after the second trial and thus double jeopardy principles do not protect him from his voluntary choice to overturn that purported lesser conviction. (Scott, supra, 437 U.S. at p. 99.) Consequently, retrial on the section 288, subdivision (a) charge was not barred.
Turning to the attendant one strike allegation, we note that although we believe the "not true" finding was not intended to show that there was insufficient evidence for that allegation but rather the jurors' inability to reach a verdict on the other counts that would then permit them to find more than one victim for the allegation, we also believe we are bound by Seel to apply Apprendi to conclude the one strike allegation attendant to the conviction involving J. at the second trial was an element of an offense which the jury found not true. (Seel, supra, 34 Cal.4th at p. 550; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And, similar to the situation in Seel, the section 667.61 was not a typical recidivist sentencing determination "to which double jeopardy protections do not apply. [Citation.]" (Seel, supra, 34 Cal.4th at p. 550.)
The issue of whether double jeopardy principles preclude retrial of a one strike sentencing allegation when the jury convicts the defendant of a qualifying offense but is unable to reach a verdict on the related sentencing allegation is currently pending review before our Supreme Court in People v. Anderson, S152695, review granted July 11, 2007 (formerly published at 149 Cal.App.4th 183). Our high court also granted review that same day in Porter v. Superior Court, S152273 (formerly published at 148 Cal.App.4th 889), on the issue of whether double jeopardy principles bar retrial of the allegation that an attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)) or retrial of an enhancement for allegedly committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)) if the trial court granted a new trial motion on those allegations because the jury's verdicts were "contrary to . . . [the] evidence" under section 1181, subdivision 6.
Here, Jesperson entered a plea of once in jeopardy for the applicable one strike allegation before the third trial. After the court determined the allegation true in a bifurcated proceeding after the jury verdicts had been returned at the third trial, it made a determination that Jesperson had not been once in jeopardy for any of the convictions or allegations. Based on the above law and reasoning, we now believe that determination was partly in error. Although double jeopardy principles did not bar retrial of any of the substantive offenses against J., K. or Michelle, they did preclude retrial of the one strike allegation attendant to the count 1 charge involving J. that had been retried from the second trial. In other words, as to that count only, the court should have found that double jeopardy principles barred retrial of the attendant one strike allegation. The other accompanying one strike allegations to each substantive charge were properly retried.
If the prosecution retries Jesperson a fourth time, and his defense counsel again raises a plea of once in jeopardy based on the "not true" findings regarding Emily's and J.'s one strike allegations attendant to their convictions at the first and second trial, double jeopardy principles would appear to only bar retrial on the corresponding multiple victim allegation under section 667.61 as to those alleged victims.
DISPOSITION
The judgment is reversed.
I CONCUR: McINTYRE, J.
BENKE, J., Dissenting.
I do not agree with my colleagues that juror misconduct existed at either the first or third trials. Nor would I find ineffective assistance of counsel on direct appeal. I do not comment on the double jeopardy discussion offered by my colleagues because I do not believe we need to reach the issue.
I. Juror Misconduct
A. The Third Trial: Juror No. 10
My colleagues find that Juror No. 10 committed misconduct in the third trial. I disagree.
During voir dire, in private discussion with the court and counsel, Juror No. 10 disclosed he was molested as a child. The molestation was perpetrated by another boy who was 15 or 16 years old. The juror reported the older boy was "a little wacky" and was believed to be "slightly mentally disturbed." The older boy was apparently known to do strange things, like eat dog food. The molestation amounted to the older boy pulling Juror No. 10's pants down after which Juror No. 10 ran away. Juror No. 10 stated that at his own brother's insistence he reported the event to the police. About three years later the juror's father and brother confronted the older boy and told him: "Don't come by here any more." The juror advised the court and counsel that the molestation would not impact his view of this case and later he told them he could be a fair judge of the case.
My colleagues conclude Juror No. 10 violated his oath and thus committed misconduct because he violated the court's admonishment and his own assurance during voir dire not to consider his own molestation or delayed reporting in determining credibility issues at trial. Respectfully, the majority reads more into the transcript than actually exists. No such admonishment and no such assurance appears anywhere in the record. My colleagues believe that on appeal such an assurance can be inferred from the juror's promise to be fair and impartial. If this is the case, any juror in a molestation case who was molested must refrain from discussing or considering their previous experience, even though that experience may be the very reason they were selected as a juror.
Carrying the majority's rationale to its logical conclusion, the general oath a juror takes in any case would, even without an admonishment from the court, prevent that juror from considering their own experiences if the experiences are similar to the charges or issues presented at trial. With all due respect, such a position turns the law of juror misconduct on its head. It is settled law that lay jurors may properly bring their individual backgrounds and experiences to bear on the deliberative process. (People v. Yeoman (2003) 31 Cal.4th 93, 161.)
The majority's view of juror misconduct does not reflect the law in California. People v. Hord (1993) 15 Cal.App.4th 711, which my colleagues cite as support for their conclusion that misconduct by Juror No. 10 may somehow be inferred from his general oath of fairness and impartiality, bears no resemblance to this case. In Hord the jury was expressly told not to discuss the defendant's refusal to take the stand. The jurors did so. However, the court found that even if it was misconduct, references to the defendant not testifying did not result in a substantial likelihood of prejudice.
The state of the record is that the court and counsel knew Juror No. 10 had as a child been molested by another child. They knew that molestation was fundamentally different from those alleged against Jesperson and that the juror reported his own molestation to the police. They also knew delayed reporting was an issue at trial. It is disingenuous now for the first time on appeal to object that discussion of Juror No. 10's own molestation, which necessarily included when, how and to whom reports were made, was somehow a surprise and prejudicial.
It is likewise disingenuous to assume Juror No. 10 would not discuss and therefore consider his own molestation which, it bears repeating, he was not instructed to keep secret from the jury. Under the circumstances, what did counsel expect he would discuss?
Had defense counsel been concerned about what is now characterized as the devastating effect of a juror revealing to the other jurors that he was molested, he should have asked the court to relieve the juror for cause. He did not do so. It is inappropriate now, after the fact, to complain about the particular background and experiences this juror brought to the deliberation process. The objection that Juror No. 10 prejudiced the trial because he had personally been molested comes too late. (Moore v. Preventive Medicine Medical Group (1986) 178 Cal.App.3d 728, 742.)
B. The First Trial: Juror No. 12
The majority finds Juror No. 12 committed misconduct amounting to actual bias against Thad Andrew Jesperson because in the jury room he revealed his own training and experience as an elementary school teacher. Again, I disagree.
During voir dire, Juror No. 12 told the court and counsel that he was an elementary school teacher with over 30 years of experience. He stated he could imagine how Jesperson felt because he had been accused several times by a parent or student of things he did not do, when he was only trying to help. When defense counsel asked all prospective jurors "Does anybody think that it's improper for a second- or third-grade teacher to have any physical contact with his students?" Juror No. 12 was silent.
It is no mystery why defense counsel did not challenge Juror No. 12 even though he could have used a remaining peremptory challenge to do so. The juror was very experienced as a teacher of young children and expressed sympathy for Jesperson. It may be assumed that defense counsel fully expected, and apparently wanted, Juror No. 12 to discuss his training and experience as a teacher with the other jurors. This discussion would obviously include the personal training Juror No. 12 received as to whether, and when, female students should ever be touched. It would also include his personal experiences as a classroom teacher and his personal observations about the school districts where he might have worked. Such personal revelations do not make one an expert and they are not "new evidence."
In fact, teachers may testify in open court about their school policies without having to qualify as an expert. (See generally, Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904.) It would appear axiomatic that a juror who is a teacher does not become an expert simply because he relates policies and practices of his employer.
As previously noted, the settled law in California permits jurors to reveal and discuss their own experiences. Unless they are misusing that experience by for example holding themselves out as an expert or applying experience to evidence not presented at trial, such personal experiences and training are not "new evidence." (People v. Yeoman, supra, 31 Cal.4th at p. 161.) Jurors' views of the evidence are necessarily informed by their life experiences, including their education and professional work. (Id. at pp. 161-162.) In Yeoman our Supreme Court held it was not clearly improper for a juror who was a nurse to use her knowledge to help other jurors define the term "sociopath" and explain how the term might apply to the defendant. (Id. at p.162; also see People v. Marshall (1990) 50 Cal.3d 907, 950.) Like the nurse in Yeoman, Juror No. 12 did not hold himself out as an expert on child molestation. He did no more than relate his own training and experiences to the evidence surrounding why Jesperson might have touched his students and where he might have touched them. This was not improper.
Even if for the sake of argument Juror No. 12 acted improperly in discussing his training and experience, there is no evidence he was actually biased against Jesperson or that by his discussion of personal experience and training he created bias in any other juror. (See People v. Marshall, supra, 50 Cal.3d at pp. 950-951; People v. Hord, supra, 15 Cal.App.4th at pp. 726-727.)
In any event, Juror No. 12 was not asked in voir dire about his training or the policies of the San Ysidro School District where he worked. The failure to cover these areas of obvious interest and importance rested in the hands of counsel. Defense counsel had the chance to inquire into these relevant subjects, which predictably would come up during deliberations. He elected not to do so. As noted, his failure to do so leaves at least me with the distinct impression he expected Juror No. 12 to discuss them. As is the case with Juror No. 10, Jesperson's complaint comes too late. (Moore v. Preventive Medicine Medical Group, supra, 178 Cal.App.3d at p. 742.)
My colleagues also find misconduct and bias in the comments Juror No. 12 made about Emily A.'s mother. The first comment related to his observation that, in Mexico, Hispanic mothers defer to teachers. Juror No. 12 is Hispanic. His comment helped explain why Emily's mother might not have more actively pursued concerns about Jesperson. His comments explained his personal observations and experience with his own culture. They enlightened the jury on evidence introduced at trial. This is hardly improper.
The second instance involving Emily's mother occurred when she was asked to give up her seat in the courtroom to a supporter of Jesperson. Juror No. 12 was not the only juror to notice this occurrence. That he was the only juror to speak up about what he perceived as unfairness to her does not create a situation of bias against Jesperson. He was simply the only juror to report that it was noticeable and bothersome to him and to others. He did not commit misconduct for making known an observation seen by others as well. His reaction was honest and directed at the administration of the courtroom, not Jesperson's guilt or innocence.
As for Juror No. 12 "yelling" at another juror and calling him a racist, there was evidence to the contrary in the form of affidavits by Juror Nos. 1, 4, 6 and 7. Even if it occurred, sensitivity and emotion exist in the jury room. Tempers can flare. I do not believe any solid connection has been established between "yelling" and bias against Jesperson.
Respectfully, this record does not support my colleagues' conclusion Juror No. 12 committed misconduct or was biased.
II. Ineffective Assistance of Counsel
As the People note and my colleagues acknowledge, much of the evidence on which counsel is determined to be ineffective was not objected to at trial or was objected to belatedly. Granted, there were numerous opportunities for defense counsel to object to evidence, including the videotape. However, as the trial court noted, there might have been tactical reasons why counsel would want the entire video in, including that it would allow him to use it in his cross-examination of each child witness. The difficulty he faced, as noted by the court, was that he could not then keep it from the jury. This was the situation with much of the evidence. It assisted the prosecution but it also could be used by the defense to attack the credibility and memories of the complaining witnesses. On appeal we may not think much of the tactic, or its success, but in a case such as this, it was indeed a possible tactic.
Given this record, before we report defense counsel to the state bar, I would await a petition for habeas corpus and the opportunity for counsel to explain the choices he made at trial.