Opinion
F080732
05-27-2022
THE PEOPLE, Plaintiff and Respondent, v. DEREK ROBERT KING, Defendant and Appellant.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O'Hair, and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR062674B Ernest J. LiCalsi, Judge.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O'Hair, and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Derek Robert King was convicted by jury of second degree burglary (Pen. Code, § 459), attempted burglary (§§ 664/459), and misdemeanor possession of stolen property (§ 496, subd. (a)). Following a bifurcated hearing, the trial court found true an allegation alleging King had suffered a prior strike conviction within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) King was sentenced to an aggregate prison term of six years eight months.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
On appeal, King contends his post-verdict motion for a new trial should have been granted for two reasons: (1) Juror No. 2 received evidence outside of court proceedings, which he failed to disclose until after a verdict had been reached; and (2) Juror No. 2 failed to participate in the deliberative process. King further contends (3) remand is required because the trial court abused its discretion in relying upon Juror No. 2's testimony in denying King's motion for a new trial. We affirm.
PROCEDURAL HISTORY
On May 16, 2019, the Madera County District Attorney filed an information charging King with two counts of burglary (§ 459; counts 1 & 2) and one count of misdemeanor possession of stolen property (§ 496, subd. (a); count 3). The information further alleged King had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that he had served a prior prison term (§ 667.5, subd. (b)). Following the prosecution's case in chief, the court reduced count 2 to attempted burglary (§§ 664/459).
On July 25, 2019, a jury found King guilty on all counts. Following a bifurcated hearing, the trial court found true the prior strike allegation. On the prosecution's motion, the court struck the prior prison term enhancement (§ 667.5, subd. (b)).
On January 31, 2020, the trial court sentenced King to an aggregate prison term of six years eight months. The court imposed the upper term of six years on count 1 and a consecutive term of eight months on count 2. The term on count 3 was stayed pursuant to section 654.
On February 6, 2020, King filed a timely notice of appeal.
STATEMENT OF FACTS
In 2019, J.K. owned a residence on 4th Street in the City of Madera. The garage on his property had two doors that led outside and one electric garage door that led to the street.
On April 16, 2019, J.K. secured the windows and doors to the garage and left for the evening. He returned the following day at approximately 8:30 a.m. As he came around the corner to the garage, he noticed the garage door was wide open and a blue pickup truck was backed up to the garage. J.K. blocked the truck into the driveway with his vehicle.
King and another man, Johnny Gallegos, were standing between the tailgate of the blue truck and the garage. J.K. did not recognize either King or Gallegos, and neither had permission to be on his property. J.K. took a picture of the truck's license plate and told King and Gallegos to leave. After they left, J.K. called the police.
J.K. noticed that most of the windows in the garage were still locked, but one was unlocked and had been opened. The electric motor to the garage door had also been turned off so the door could only be opened manually. A washer and dryer set worth approximately $750 was also missing from J.K.'s garage.
That same day, a police officer drove J.K. to a nearby location where he identified Gallegos as one of the intruders, and then to West 6th Street, where he identified King as the other intruder. J.K.'s missing washer and dryer set was recovered from the same location where J.K. had identified King.
Gallegos was wearing an ankle monitor that showed he was at J.K.'s property on 4th Street between 8:55 a.m. and 8:59 a.m. on the day of the incident.
L.V. lived on West 6th Street. He knew Gallegos and King. L.V. told law enforcement that on April 17, 2019, he observed a washer and dryer in King's backyard on West 6th Street at around 9:10 a.m. The drive from J.K.'s 4th Street property to King's backyard on West 6th Street takes between one and three minutes.
Following his arrest, King admitted that he visited the 4th Street property with Gallegos, but claimed he had permission to be there. King explained that a person named Gerald, whom he believed was the owner's son, and had told King that he could use the garage. J.K. did not have any children, nor did he know anyone named Gerald.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion by Refusing to Grant a New Trial
King contends the trial court erred in denying his motion for a new trial upon several grounds. First, he contends Juror No. 2 improperly concealed and failed to timely disclose the fact that he had observed King in an alleyway near the scene of the burglary a few months before King's trial. Second, Juror No. 2 failed to engage in any deliberation, which was a violation of the court's directive. Finally, King contends the trial court erred in relying upon testimony by Juror No. 2 in denying King's motion for a new trial. Following our independent review of the record, we conclude King's claims are meritless.
A. Background
Voir Dire
On July 24, 2019, during voir dire, Juror No. 2 stated that he lived 300 feet away from the scene of the burglary, that he passed by J.K.'s 4th Street property all of the time, and that he had acted as a translator for the owner on a prior occasion when the house had burned down. However, Juror No. 2 did not recognize any of the names of the witnesses and he did not know the homeowner personally.
Juror No. 2's Disclosure
Following the jury's verdict, Juror No. 2 disclosed to the court that he had recognized King during the trial. A few months prior to King's trial, Juror No. 2 had observed King and another male walking in the alleyway one block from J.K.'s residence, peering over fences. Juror No. 2 did not recognize King until after voir dire was complete and the trial had commenced.
He did not disclose his observation during deliberations; in fact, Juror No. 2 did not speak at all during deliberations. He was not asked any questions by the other jurors, nor did he have any questions for the other jurors.
Juror No. 2 explained that he did not want his observation to influence the other juror's opinions, so he did not mention it. After the trial, he told defense counsel and the prosecutor that he thought he knew King.
At an evidentiary hearing, Juror No. 2 stated that he had listened to the witnesses' testimony, he observed the physical evidence that was presented at trial, and he paid attention during the course of the trial. Juror No. 2 testified that his prior observation of King in the alleyway did not factor into his decision as to whether King was guilty or not.
At the conclusion of the hearing, defense counsel argued that Juror No. 2 had effectively declined to deliberate, which constituted juror misconduct. He further asserted that Juror No. 2 should have come forward the moment he recognized King. The trial court replied that no instruction had been given concerning what Juror No. 2 was required to do under the circumstances.
As to defense counsel's assertion that Juror No. 2 failed to participate during the deliberation process, the prosecutor observed that Juror No. 2 testified that he had listened to and had considered all available evidence. Juror No. 2 simply did not volunteer the fact that he had recognized King to the other jurors.
At the next court date, the court denied defense counsel's motion. As to defense counsel's claim that Juror No. 2 failed to participate in the deliberations, the court explained that Juror No. 2 declined to reveal his knowledge of King during deliberations, but he did not testify that he had refused to participate in jury deliberations altogether. As to any misconduct for failing to disclose his knowledge of King, the court reiterated that Juror No. 2 did not realize that he recognized King until after voir dire, so there was no misconduct during voir dire. The court further observed that Juror No. 2 had disregarded the fact that he recognized King and that he had based his verdict upon the evidence adduced at trial.
B. Applicable Law: Motion For New Trial Based Upon Juror Misconduct
Juror misconduct occurs when an "overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors." (In re Hamilton (1999) 20 Cal.4th 273, 294.)
"[Actual juror] misconduct gives rise to a presumption of prejudice." (People v. Leonard (2007) 40 Cal.4th 1370, 1425.) This presumption of prejudice" 'may be rebutted … by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.'" (Ibid., citing People v. Hardy (1992) 2 Cal.4th 86, 174.) Whether a defendant has been prejudiced depends upon whether the jury's impartiality has been adversely affected, the prosecution's burden of proof lightened, or any asserted defense contradicted. (People v. Zapien (1993) 4 Cal.4th 929, 994; People v. Cumpian (1991) 1 Cal.App.4th 307, 312.)
Although the trial court's ultimate ruling on a motion for new trial is reviewed for abuse of discretion, "the question [of] whether prejudice from juror misconduct has been rebutted" is subject to independent review. (People v. Lavender (2014) 60 Cal.4th 679, 687, quoting People v. Leonard, supra, 40 Cal.4th at p. 1425.)
C. Analysis
King argues Juror No. 2's intentional concealment of the fact that he recognized King during trial constituted juror misconduct that raised a presumption of prejudice. To support his assertion, King directs this court to a line of authority where jurors received information from extraneous sources. (See People v. Nesler (1997) 16 Cal.4th 567, 579 [juror received extrajudicial information about the defendant from an undisclosed woman while in a bar, which the juror disclosed during deliberations in an apparent attempt to persuade other jurors to change their views]; People v. Zapien, supra, 4 Cal.4th at p. 993 [juror inadvertently heard television news report announcing the defendant had made threats against the guards if he were to receive the death penalty]; People v. Cummings (1993) 4 Cal.4th 1233, 1331 [two jurors learned that a verdict had been reached in the capital case against the defendant's co-defendant], overruled on other grounds by People v. Merritt (2017) 2 Cal.5th 819, 831.)
The case at bench does not implicate a juror's receipt of information outside of court proceedings. Juror No. 2 did not receive outside information about the case from an external source-he made a personal observation of King, near the crime scene, at some unspecified point prior to King's trial that he did not recollect until King's trial had commenced. This type of misconduct is appropriately classified as an inadvertent or unintentional failure to disclose information. (See, e.g., People v. Wilson (2021) 11 Cal.5th 259, 309 (Wilson) [juror concealed prior jury service on a murder trial].)
In addressing whether the trial court abused its discretion in denying King's motion for a new trial, we therefore address the following questions: (1) whether Juror No. 2's inadvertent failure to disclose the fact that he recognized King demonstrated bias; (2) whether Juror No. 2 committed misconduct by failing to immediately disclose the fact that he recognized King during trial; and finally, (3) did Juror No. 2 refuse to deliberate?
1. Juror No. 2's Concealment of Information
" 'The law concerning juror concealment is settled.… "[An] accused ... has a constitutional right to a trial by impartial jurors. [Citations.] '" 'The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.'" '" '" (Wilson, supra, 11 Cal.5th at pp. 309-310, citing In re Manriquez (2018) 5 Cal.5th 785, 797 (Manriquez).) Thus, "[i]f a juror actively conceals factual information or falsifies voir dire responses, the process of selecting jurors is undermined." (Wilson, at p. 310, citing Manriquez, at p. 797, accord, People v. Jackson (1985) 168 Cal.App.3d 700, 704.)
However, "[n]ot every failure to disclose background information in response to voir dire questioning constitutes misconduct by jurors.' "Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect." '" (People v. Tuggles (2009) 179 Cal.App.4th 339, 371.) In circumstances where there has been an unintentional failure to disclose information, the trial court evaluates whether a juror is so biased that they cannot perform the duties required of them. (Ibid.) "A trial court has the discretion to determine whether a juror's' "failure to disclose is intentional or unintentional"' and whether the juror is biased." (Wilson, supra, 11 Cal.5th at p. 310, citing People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Here, assuming Juror No. 2's nondisclosure could be characterized as juror misconduct, King was not prejudiced. Juror misconduct raises a rebuttable presumption of prejudice that is rebutted if the record demonstrates no substantial likelihood that a juror was actually biased. (In re Hamilton, supra, 20 Cal.4th at pp. 295-296.) An honest mistake during voir dire cannot disturb a judgment unless there is evidence that a wrong or incomplete answer hid the juror's actual bias. (Id. at p. 300.)
"Actual bias" is defined as "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(C).) When determining whether the prosecutor has rebutted a presumption of prejudice arising from juror misconduct, the court must independently determine from the entire record, including the nature of the juror's misconduct and all "the surrounding circumstances," whether there was no substantial likelihood he was actually biased against petitioner. (In re Boyette (2013) 56 Cal.4th 866, 890.) The substantial likelihood test is an objective standard. (In re Hitchings (1993) 6 Cal.4th 97, 118.)
Setting aside Juror No. 2's assertion that his prior observation of King peering over fences did not impact his verdict (Evid. Code, § 1150; In re Boyette, supra, 56 Cal.4th at p. 894 ["[e]vidence of a juror's mental process-how the juror reached a particular verdict, the effect of evidence or argument on the juror's decisionmaking-is inadmissible"]), the record does not suggest Juror No. 2 was biased against King. King's assertions to the contrary are unpersuasive for several reasons.
First, although Juror No. 2 did not disclose the fact that he recognized King during voir dire, the trial court found credible Juror No. 2's statement that he did not realize he recognized King until sometime after the evidentiary portion of King's trial had begun. "We accord deference to any credibility determination made by the trial court in its evaluation of concealment." (Wilson, supra, 11 Cal.5th at p. 310.)
Second, upon the instant record, there is no indication that Juror No. 2's failure to immediately disclose the fact that he recognized King was attributed to bias. As discussed further in part I.C.2, post, in the absence of a clear directive from the trial court, Juror No. 2's delay in disclosing the fact that he recognized King was understandable.
Finally, Juror No. 2 did not seek to use the information he possessed against King to influence deliberations. Upon recognizing King at trial, Juror No. 2 intentionally withheld this information from the other jurors so that it would not influence their deliberations, and ultimately, their verdict. Immediately following King's trial, Juror No. 2 divulged this information to defense counsel. Under the circumstances, we conclude that Juror No. 2's conduct fails to demonstrate bias. Rather, his statements and conduct rebut any possible inference that he was biased because "a biased juror would likely have told the other jurors what [he] had learned." (In re Carpenter (1995) 9 Cal.4th 634, 657; see, e.g., People v. Nesler, supra, 16 Cal.4th at p. 579.)
2. Juror No. 2's Delayed Disclosure
Though Juror No. 2's delayed disclosure was ill-advised, it too fails to suggest bias. The delayed disclosure of information from extraneous sources has been referred to as" 'passive'" misconduct. (People v. Albert (2020) 50 Cal.App.5th 743, 750, discussing In re Carpenter, supra, 9 Cal.4th at pp. 642-643, 656 [characterizing a juror's failure to report that she had learned from an outside source that the defendant had already been sentenced to death as passive misconduct].) This is not a case involving a juror who received forbidden information and then failed to report it. However, assuming Juror No. 2's delayed disclosure could be characterized as juror misconduct, we conclude that any inference of bias is negated by the" 'passive'" nature of the impropriety.
Contrary to King's assertion, Juror No. 2 did not defy a court directive. The trial court instructed the jury as follows: "You must not allow anything that happens outside the courtroom to affect your decision during the trial. Do not read, listen to, or watch any news reports or commentary about the case from any source." The court further instructed, "If you receive any information about the case from any source outside the trial, even unintentionally, do not share that information with any other juror. If you do receive such information, or if anyone tries to influence you or another juror, you must immediately tell the bailiff."
Juror No. 2 did not receive outside information about this case. He inadvertently failed to disclose the fact that he had seen King peering over fences by Juror No. 2's home, a few months before King's trial. Although Juror No. 2 stated that he lived only one block away from the crime scene during voir dire and that he might recognize one of the witnesses when he saw them, at no point was he instructed to immediately disclose this event if it subsequently occurred. Under the circumstances, we cannot say that Juror No. 2 defied a court order.
Ideally, Juror No. 2 would have disclosed the fact that he recognized King during King's trial. However, "Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic." (In re Carpenter, supra, 9 Cal.4th at pp. 654-655.)
3. Juror No. 2's Refusal to Deliberate
Next, King contends Juror No. 2 refused to deliberate, necessitating reversal of his conviction. We do not agree with King's assertion that Juror No. 2's silence during deliberations is tantamount to a refusal to deliberate.
"Bias is often intertwined with a failure or refusal to deliberate." (People v. Lomax (2010) 49 Cal.4th 530, 589.)" 'A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.'" (Ibid., citing People v. Cleveland (2001) 25 Cal.4th 466, 485.)
Here, Juror No. 2 stated that he remained silent during deliberations. He did not want to participate in discussions about the case because he did not want to taint the deliberation process. However, Juror No. 2 was not asked any questions by the other jurors to which he refused to respond, nor is there any indication that he refused to consider the juror's points of view. Under the circumstances, we do not agree that Juror No. 2's silence constituted a refusal to deliberate.
II. Remand is Not Required by Evidence Code section 1150
King further contends that the trial court should be prohibited from considering evidence of Juror No. 2's mental process in reaching its decision. The Attorney General contends King's claim of error has been forfeited, but that King's claim fails upon the merits because King failed to raise a presumption of prejudice.
Evidence Code section 1150 makes clear that "the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved" is inadmissible. (People v. Steele (2002) 27 Cal.4th 1230, 1261.) Although the Attorney General observes King failed to object to challenged portions of Juror No. 2's testimony at the evidentiary hearing, defense counsel's failure to object does not permit us or the trial court to consider statements made inadmissible under the Evidence Code.
Nonetheless, King's claim that remand is required lacks merit. In reaching our conclusion that the prosecutor rebutted any presumption of prejudice in part I, ante, we did not consider Juror No. 2's testimony pertaining to his deliberative process. Although the trial court found this testimony pertinent, we review independently the trial court's denial of a motion for a new trial alleging juror misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 396.) As discussed, our independent review of the record discloses no evidence that Juror No. 2 was biased. Indeed, as discussed, the record negates any possible inference of bias.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: DETJEN, Acting P. J. SNAUFFER, J.