Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INFO59495, Graham Anderson Cribbs, Judge. Affirmed with directions.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Pedro Torres, of committing a lewd and lascivious act on a minor (Pen. Code, § 288, subd. (a)) and misdemeanor battery (§ 242). He was granted probation. He appeals contending that the jury was misinstructed and his motion for a new trial was erroneously denied. We reject his first contention and agree with the second. Therefore, we remand for a limited inquiry on issues relating to his motion for a new trial, and otherwise affirm. The facts of these crimes are not relevant to the issues discussed.
All further statutory references are to the Penal Code unless otherwise indicated.
Issues and Discussion
1. California Criminal Jury Instructions, CALCRIM Nos. 301 and 1190
The jury was given CALCRIM No. 301, which provides, “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” The jury was also given CALCRIM No. 1190, which provides, “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” For the first time, defendant here objects to the latter.
He faults the instruction because “there was no corresponding instruction that the testimony of one defense witness, if believed, could create reasonable doubt....”
In support for this “requirement” defendant cites Cool v. United States (1972) 409 U.S. 100, 103. Cool does not support his position. Therein, the United States Supreme Court dealt with an instruction which, the Court observed, “[clearly implies] that the jury should disregard [the accomplice’s] testimony unless it was ‘convinced it is true beyond a reasonable doubt.’ [¶]... [¶]... [The jury was told] that as a predicate to the consideration of [the accomplice’s testimony], [the jury] must find it true beyond a reasonable doubt.” (Id. at pp. 102, 104.) The Court concluded that this placed an improper burden on the defendant and allowed the jury to convict defendant despite its failure to find guilt beyond a reasonable doubt. (Id. at p. 104.) In a footnote, the Court observed that the instruction went on to say that testimony of an accomplice may alone and without corroboration support a guilty verdict if believed by the jury to prove beyond a reasonable doubt the essential elements of the crimes. (Id. at p. 103, fn. 4.) Noting that the only accomplice testimony in the case was exculpatory, the Court found this part of the instruction to be confusing and unfair, the latter “in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis.” (Ibid.) This language cannot be construed as a holding that whenever an instruction allows the jury to convict based on the testimony of a single witness, a counter-point instruction must be given that the testimony of a singular defense witness may served as the basis for an acquittal.
Equally unhelpful to defendant’s position is Washington v. Texas (1967) 388 U.S. 14. In that case, a Texas law was declared unconstitutional. The law in that case, allowed the prosecution, but not the defense, to call “the other person” who had been charged with the same crime with which the defendant was charged, to testify. Not only are the facts different in this case than ours, defendant points to no language in Washington supportive of the instruction he proffers here.
Defendant sees a difference in the instruction endorsed in People v. Akey (1912) 163 Cal. 54 and the one he proposes. In Akey, the jury was instructed that it was not essential to a conviction that the testimony of the rape victim be corroborated, that it was sufficient if the jury believed beyond a reasonable doubt from all the evidence that the crime had been committed. (Id. at p. 55.) The California Supreme Court concluded that the instruction did not improperly single out the testimony of the victim with a view of giving it undue prominence, but it merely stated the law. (Id. at p. 56.) Contrary to defendant’s assertion, CALCRIM No. 1190 does not single out the victim any more than the instruction ratified in Akey did. Moreover, the fact that the Akey instruction contained a reminder that the jury must convict only if it believed all the evidence established guilt beyond a reasonable doubt is not a basis to distinguish it from CALCRIM No. 1190, which was given along with all the instructions on reasonable doubt, the presumption of innocence and the People’s burden of proof. CALCRIM No. 1190 and those instructions, as the jury was told, must be considered together.
As the People correctly point out in People v. Gammage (1992) 2 Cal.4th 693, 700, 701, 702 (Gammage), the California Supreme Court rejected the same argument defendant brings here as it was brought against CALCRIM No. 1190’s predecessor, CALJIC No. 10.60, which provided that a rape victim’s testimony did not need to be corroborated. We disagree with defendant’s assertion in his reply brief that Gammage does not comport with the holding in Cool, which we have already discussed, nor with Wardius v. Oregon (1973) 412 U.S. 470 (Wardius). Moreover, we are bound by Gammage. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.)
Wardius involved a law that prohibited a defendant who intended to present an alibi defense, but failed to comply with the requirement that he disclose this to the prosecution, along with a list of alibi witnesses the defense intended to call, from presenting such a defense. (Wardius, supra, 412 U.S. at p. 471.) The High Court held that that the Oregon statute violated the due process clause because it did not provide for reciprocal discovery, as did a Florida statue previously approved by the Court that required the prosecution to disclose its alibi rebuttal witnesses to the defense after the defense had disclosed its alibi witnesses to the prosecution. (Id. at pp. 471-472.) The Court elaborated, “[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” (Id. at pp. 475-476, fn. omitted.) However, CALJIC No. 1090 presents a different set of circumstances than in Wardius, as the California Supreme Court observed in Gammage, “The jury is instructed that the prosecution must prove its case beyond a reasonable doubt. This places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. CALJIC No. 10.60 does not affect this instruction, but... when all the instructions are given, ‘a balance is struck which protects the right of both the defendant and the complaining witness.’ [Citation.]” (Gammage, supra, 2 Cal.4th at p. 701.)
2. Motion for New Trial
In support of defendant’s motion for a new trial on the basis of juror misconduct, one of the jurors stated in a declaration under oath that it was clear that the jury was going to be deadlocked, but to avoid a mistrial, “we” agreed to find defendant guilty of one of the charged felonies. This juror also said that the issue of punishment was discussed during deliberations, with some of the jurors wanting defendant to have to register as a sex offender and at least one wanting him to have to go to prison.
The foreperson reiterated in a sworn declaration that the jury was going to be deadlocked, with some of the jurors wanting a guilty verdict on both counts and others not wanting to convict defendant of any felony. The foreperson also said that the jurors arrived at a compromise verdict so the victims would not have to testify again at a new trial, but it was clear that the vote of guilty by some jurors was not based on the evidence but on the desire to reach an agreement. In particular, the foreperson did not believe the evidence was sufficient to convict defendant of either charged felony but voted guilt as to one to avoid a mistrial. The foreperson also said that some jurors broke off into little groups and had their own discussions. Additionally, the foreperson heard the subject of punishment brought up once, with some of the jurors saying they wanted defendant to be punished and not go free, but another juror told the foreperson that it had been brought up more than once.
A third juror, who had been identified by the foreperson in the latter’s declaration as the juror who brought up the subject of punishment more than once, said in a sworn declaration that some of the jurors did not believe the evidence was sufficient to convict defendant of any felony, but they wanted him to receive some punishment. This juror said that to avoid a mistrial, which would force the victims to testify again at a second trial, the jurors compromised and agreed to convict defendant of one of the charged felonies. This juror added that some jurors said they wanted to make sure that defendant had to register as a sex offender. This juror said that at least one juror said he/she did not want defendant to be free. This juror brought up the subject of punishment at least once during deliberations and said that defendant should have some restriction on his ability to be in contact with children. Finally, this juror considered sentencing when voting for guilt.
The defense submitted two additional declarations by two of the above-mentioned jurors, which had been authored about a month after the original declarations. In them, one of the jurors said that as long as defendant is on probation and had to register as a sex offender, it was that juror’s belief that society would be protected and it would be that juror’s recommendation that defendant not be sent to prison. The foreperson said the same, adding that more prison time for defendant would be counterproductive, in the foreperson’s mind. Neither declaration was relevant to the issue whether jury misconduct occurred during deliberations, requiring a new trial. Although the trial court did not expressly address these two declarations in relation to the earlier three, it said, “The way the declarations have been couched... it would be as though they wanted to appear here at sentencing and just simply make a statement like any other person interested in the case might make and that is a plea for mercy....”
The trial court found that the declarations were inadmissible. Additionally, the court observed that just because jurors “touched upon” matters they were instructed not to did not mean that a new trial was required. Next, the court observed that it was perplexed by the declarations, in that they appeared to be an effort by the jurors to gain mercy for defendant, which would have been more appropriate as part of the sentencing. Finally, the court found that the assertions in the declarations that some jurors voted guilty just to avoid a mistrial “carried no weight” with the court because jurors who did not believe defendant to be guilty beyond a reasonable doubt were free to hang the jury and by making these declarations, the jurors were attempting to undo that which they claimed they were trying to accomplish by voting the way they did, i.e., having defendant tried a second time. The court added that it could not understand how any juror who concluded that defendant committed a crime involving the second victim could have convicted him of battery rather than the charged violation of section 288, subdivision (a). The court said, “That leads me to believe that some sort of compromise was reached such that the possibility of multiple victims in this... case wouldn’t have to be found.... This is obviously speculation on my part, but being a reasonable man and trying to put two and two together, I think that is... how it shook out....” The trial court denied the motion for a new trial.
The trial court also observed, initially, that it was bewildered by the defense bringing the motion as its success would expose defendant, once again, to a 15-year-to-life term under section 667.61, subdivision (e)(5).
It had been alleged that defendant had committed a violation of section 288, subdivision (a) against more than one victim pursuant to section 667.61, subdivision (e)(5). That subsection provides for a 15-year-to-life term. How this jury of lay people supposedly knew this is beyond us.
Defendant contends this ruling was in error. First, he asserts that, contrary to the trial court’s conclusion, portions of the declarations were admissible. We agree.
“‘Upon an inquiry into the validity of a verdict, any otherwise admissible evidence may be received as to statements made... of such a character as is likely to have influenced the verdict improperly.’ (Evid. Code, § 1150, subd. (a).)... [J]urors are competent to prove ‘objective facts’ under this provision. [Citation.] By contrast, the Legislature has declared evidence of certain other facts to be inadmissible for this purpose: ‘No evidence is admissible to show the effect of such statement... 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.’ [Citation.] Thus, jurors may testify to ‘overt acts’—that is, such statements... as are ‘open to sight, hearing, and the other senses and thus subject to corroboration’—but may not testify to ‘the subjective reasoning processes of the individual juror....’ [Citation.] [¶] Among the overt acts that are admissible and to which jurors are competent to testify are statements.” (In re Stankewitz (1985) 40 Cal.3d 391, 397, 398 (Stankewitz), italics omitted.) In Stankewitz, the High court declared admissible declarations stating that a juror advised his fellows that a robbery occurs regardless of the taker’s intent to keep the items taken, which was, of course, incorrect. (Id. at pp. 396, 399.) The Stankewitz court held, “the very making of the statement sought to be admitted would itself constitute misconduct” and making it was an objective fact. (Id. at p. 398.)
“Consistent with Stankewitz, several courts have held [that] evidence of a jury discussion on an improper topic [is] admissible as an ‘over act,’ provided the evidence is not directed at the subjective reasoning processes of the individual juror. (People v. Perez (1992) 4 Cal.App.4th 893, 907 (Perez).) Thus, in Perez, Division One of this court held that statements that the jurors discussed defendant’s failure to testify, which, our colleagues concluded, necessarily meant that the jury had either implicitly or explicitly agreed to ignore the trial court’s instruction to disregard this fact, were admissible because such a discussion was an overt act, and it did not concern the juror’s subjective reasoning process “since... such agreement in and of itself constitutes misconduct.” (Id. at pp. 906, 908.) Similarly, in People v. Hord (1993) 15 Cal.App.4th 711, 725, the appellate court held that statements that jurors discussed the defendant’s failure to testify and possible sentence were admissible.
In People v. Sanchez (1998) 62 Cal.App.4th 460, 476 (Sanchez), the appellate court observed, “where the declarations establish that the jurors agreed to disregard the court’s instructions” they are admissible.
In People v. Jones (1998) 17 Cal.4th 279, the California Supreme Court held that “[t]he purported or hypothesized misconduct consist[ing] of failing to follow an instruction that the jurors were not to consider the deterrent effect of their penalty decision” did not go to the mental processes by which the verdict was reached and evidence that the jury discussed the improper subject of deterrence during deliberations would have been admissible. (Id. at p. 316.)
The People call our attention to People v. Root (1952) 112 Cal.App.2d 122, 127 in which the defendant conceded that he could not impeach the verdict with affidavits of jurors saying that the foreperson of the seemingly deadlocked jury persuaded them to change their not guilty votes to guilty on one count while jurors voting guilty on three other counts changed theirs to not guilty. The implication was that the verdict was a result of compromise. Because defendant conceded the point, there is no discussion in Root as to how this evidence was inadmissible under Evidence Code section 1150. Moreover, much development in the law concerning this section has occurred since 1952, when Root was decided. Finally, the facts in Root are different from some of the assertions made in the declarations here, specifically, that the jury agreed to find defendant guilty of one of the charged felonies in order to avoid a mistrial and having the victims testify a second time, that punishment was discussed during deliberations and that some smaller groups of jurors “had their own discussions” to the extent, of course, that others were not included in those discussions.
One of the cases defendant cites, Sanchez, shows the limits of Evidence Code section 1150. In Sanchez, the defendant claimed that jurors engaged in misconduct by basing their conviction of him on a misunderstanding of the law and they discussed this misunderstanding during deliberations, believing it to be correct. (Sanchez, supra, 62 Cal.App.4th at pp. 474-475.) The appellate court held, “Evidence Code section 1150 ‘may be violated... by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.’ [Citation.] [¶]... [¶] [W]here, as here, the affidavit... ‘“‘ suggest[s] deliberative’ error in the jury’s collective mental process—confusion, misunderstanding, and misinterpretation of the law,”’ particularly regarding ‘the way in which the jury interpreted and applied the instructions’ the affidavit... is inadmissible. [Citation.] The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule.” (Id. at pp. 475-476.)
In the same vein as Sanchez is People v. Peavey (1981) 126 Cal.App.3d 44, a case cited by the People. Therein, the appellate court held inadmissible under Evidence Code section 1150 as showing a juror’s mental processes and subjective considerations that influenced her vote a juror’s declaration that she believed the defendant to be not guilty but voted for guilt because all the other jurors had done so. (Id. at p. 51.)
The “verdict by compromise” theme was also present in People v. Stevenson (1970) 4 Cal.App.3d 443, another case cited by the People. Therein, one juror said that he/she was not convinced of the defendant’s guilt or innocence, but voted for guilt because the jury was deadlocked and he/she did not feel that he/she and others could convince the rest to vote not guilty. (Id. at p. 444.) Another juror said that he/she was one of the few who were for acquittal, but changed his/her vote to guilty because he/she felt it was useless to do otherwise. (Ibid.) This juror claimed to not know that he/she could hang the jury by continuing to vote not guilty and said he/she would have, had this been known. (Ibid.) Not surprisingly, the appellate court held that the jurors’ statements were inadmissible under Evidence Code section 1150 “because [they] showed only the mental processes of respective jurors, and the subjective considerations which influenced their verdicts.” (Id. at p. 445.) The court added, “There was no admissible evidence showing the jurors surrendered their conscientious convictions on a material point, or reached their verdict by compromise.” (Ibid.)
This sentence is interesting in that it appears to leave open the possibility of granting a new trial based on admissible evidence of a compromise verdict.
Thus, assertions in the declarations here that some jurors voted guilty not based on the evidence, but based on their desire to reach an agreement or to punish defendant, that the foreperson did not believe the evidence was sufficient to convict defendant of any charged felony but voted guilty to avoid mistrial, that some jurors said they wanted defendant to be punished and that one of these jurors considered sentencing when voting for guilt were inadmissible under Evidence Code section 1150. However, the remaining matters, i.e., that punishment was discussed, that small groups deliberated (of course, to the extent that others were excluded from those discussions) and that the jurors agreed to convict defendant in order to avoid a mistrial, were not. Thus, as the Sanchez court went on to say, “[T]his case does not involve the situation where the declarations established that the jurors agreed to disregard the court’s instructions; in such a situation, the agreement does not implicate a juror’s subjective reasoning process but itself constitutes misconduct.” (Sanchez, supra, 62 Cal.App.4th at p. 476, italics added.)
Thus, we do not disagree with the People’s assertion that “to the extent all the [declarations] discussed how the jurors reached a possible compromised verdict, the [declarations] were... inadmissible.”
“When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion. [Citation.]” (Perez, supra, 4 Cal.App.4th at p. 906.) “[J]uror misconduct ‘“raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” [Citations.]’ In determining whether misconduct occurred, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ [Citations.]” (People v. Majors (1998) 18 Cal.4th 385, 417.)
“This presumption aids parties who are barred by statute from establishing the actual prejudicial effect of the incident under scrutiny [citations] and accommodates the fact that the external circumstances of the incident are often reliable indicators of underlying bias. [Citation.]” (In re Hamilton (1999) 20 Cal.4th 273, 295.)
Because the trial court said a number of things following its erroneous conclusion that the declarations were inadmissible in toto we are compelled to address these matters as well. We can only assume that by the trial courts reference to jurors “touching upon” matters it had been told not to, and that that did not mean that a new trial was required, the trial court was referring to discussions among the jurors of punishment. To the extent that the court, by making this statement, was including it as a reason for denying the motion, we now deal with its propriety. Unfortunately, the court neglected to find whether these discussions constituted misconduct and, if so, whether the presumption of prejudice flowing from it had been rebutted.
If, by remarking that the declarations appeared more to be attempts by the jurors who authored them to gain clemency for defendant, the trial court was implying that it disbelieved the assertions in them, the court should have stated this explicitly so that we could apply the appropriate standard to its determination. As the record now stands, however, we would be engaging in rank speculation to interpret these remarks and assign a significance to them in terms of the denial of the motion. The same is true of the court’s observation that the declarations “carried no weight” because the jurors had been instructed that if they disagreed with the others, they were to stand their ground, and because by submitting the declarations, these jurors were accomplishing exactly what they stated they had tried to avoid during deliberations.
Finally, the court guessed that the verdict had been a compromise. Of course, this assumes both the admissibility and the veracity of these declarations. Be that as it may, again, the court never made a determination whether this constituted misconduct and, if so, whether the presumption of prejudice arising from it had been rebutted.
The trial court also never explicitly addressed the assertion that some jurors may have discussed the case without the participation of all.
All the above leaves us nothing to review except the trial court’s determination that the declarations were inadmissible, a finding which was in error and therefore constituted a clear abuse of the court’s discretion.
Disposition
We remand this case to the trial court for further proceedings on defendant’s motion for a new trial consistent with the views expressed in this opinion. Otherwise, the judgment is affirmed.
We concur: GAUT J., MILLER J.