B-973

Brief Bank # B-973 (Re: FORECITE PG X(L)(6) [Juror Misconduct: Source And Means Of Juror Exposure To Extrinsic Evidence].)

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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE, STATE OF CALIFORNIA,

Plaintiff/Appellant,

JOHN DOE,

Defendant/Respondent.

___________________________________________)

RESPONDENT’S REPLY BRIEF

CHARLES M. SEVILLA

State Bar No. 45930

Cleary & Sevilla, LLP

1010 Second Avenue, Suite 1825

San Diego, California 92101

Telephone: (619) 232-2222

Attorneys for Respondent Doe

I. INTRODUCTION

On October 22, 2003, the San Diego District Attorney filed a petition for review following the published opinion of September 17, 2003, by the Court of Appeal, Fourth Appellate District, Division One, affirming the order of the Superior Court of San Diego County granting a motion for new trial for prejudicial juror misconduct. One Justice dissented. This Court granted review, and on January 9, 2004, appellant filed his opening brief. This is respondent Doe’s [hereafter referred to as Doe] reply to appellant’s [the San Diego District Attorney] brief on the merits.

On January 14, 2004, this Court entered the following order:

The issue to be briefed and argued is limited to the following: What is the proper standard of review when the People appeal an order granting a motion for new trial due to juror misconduct?

Appellant’s brief, filed before the above order, poses the issue as: “What is the appellate standard of review on the question of prejudice when the People seek review from the grant of a new trial motion based on juror misconduct?” (Appellant’s Opening Brief [hereafter AOB], p. 1; emphasis added.) [Footnote 1]

Appellant states the issue as whether Juror 2 committed prejudicial misconduct when she told jurors about a woman who was molested by her father and had him serve as father of the bride during her wedding to illustrate how child molest victims, like the alleged victim here, can react normally shortly after being molested by someone close to them and while in their presence. (AOB, pp. 1-2.)

Appellant contends the standard of review is independent review, and that the juror misconduct was not prejudicial. Doe submits that the standard of review is abuse of discretion which has been the standard when new trials are granted, whatever the basis (e.g., ineffective assistance of counsel. (People v. Andrade (2000) 79 Cal. App. 4th 651.) There is good reason for this. As this court stated in Jiminez v. Sears (1971) 4 Cal.3d 379, if the motion for new trial is granted at the trial level and the prosecution appeals, the case is not concluded at the trial level. There is no dismissal. The prosecution still has another right to try the defendant and obtain a conviction even if its appeal on the new trial issue is lost. However, when the new trial motion is denied, the defendant is sentenced and the trial proceeding is over. The defendant is left to his appellate remedies on direct appeal.

In support of an independent review standard for granted motions for new trial, appellant relies on this Court’s discussion of the prejudice issue in People v. Nesler (1997) 16 Cal. 4th 561, a denied motion for new trial case. It is correct that Nesler, in reviewing the denial of the motion for new trial there, stated that to the extent cases “suggest that appellate courts do not conduct an independent review of whether a defendant was prejudiced by juror misconduct, these decisions are contrary to the well-established rule discussed above and are disapproved.” (Nesler, supra at 582. n. 5; emphasis added.) As will be shown below, the only “well established” rule was that review on denied motions was independent.

One of the cases Nesler referred to was Andrews v. County of Orange (1982) 130 Cal. App. 3d 944, 954-955, where in reviewing an order denying a motion for new trial based upon jury misconduct, the court stated:

“Consistent with the principle that a trial judge has wide discretion in ruling on a motion for new trial, an appellate court should accord great deference to a trial judge’s evaluation of the prejudicial effect of jury misconduct.” Nesler clarified that, in the context of that case involving a denied motion, the reviewing court had a constitutional obligation to determine independently whether the misconduct was prejudicial.

Nesler cites three cases all involving denied motions in clarifying that the standard of review for those cases is independent review of prejudice (Andrews, supra, People v. Hill (1992) 3 Cal. App. 4th 16, 40, and Akers v. Kelley Company, Inc. (1985) 173 Cal. App. 3d 633, 657.) It did not resolve the issue here adversely to respondent. Indeed, the “well-established” rule from this Court and many Court of Appeal decisions hold that review of granted motions for new trial should be reviewed for abuse of discretion because the trial court has already found a constitutional violation.

Also, given this Court’s recent order, it is unclear whether the Court will review the prejudice issue itself as one included in the standard of review question. If appellant prevails on the standard of review question, the Court may simply remand the matter to the Court of Appeal for review under that standard. (E.g., People v. Cahill (1993) 5 Cal. 4th 478, 510 (“we consider it appropriate to remand this matter to the Court of Appeal to permit that court to determine the question of prejudice under the principles established herein.”) Doe will argue below, however, that the Court of Appeal majority did give the question independent review and agreed with the trial court’s decision to grant the new trial motion. Because appellant has briefed the issue of prejudicial misconduct under the independent review standard, Doe will address the prejudice issue.

II. STATEMENT OF THE CASE

The San Diego County District Attorney’s Office filed an information on February 26, 2001, charging respondent Doe with lewd acts upon a child under Penal Code §288(a) with special allegations under Penal Code § 667.61(b)(c)(e) and § 1203.066(a)(8). (CT 1-24.) The information was amended several times (CT 7-13; CT 14-19), with the final information charging eleven felonies and two misdemeanors. The alleged victim in Counts 1-10 was Stephanie C. [Footnote 2] (CT 677-684.) Doe was acquitted of all the charges except for Counts 4 and 5. Those two counts are the subject of the trial court’s grant of the new trial and the appeal by the District Attorney. The remaining charges alleged a Penal Code § 288(a) against Galina C. (Count 11), and two misdemeanor counts under Penal Code §243.4(a) and §647.6(a) relating to Marina W. (Counts 12 and 13). These counts were either dismissed by the court (RT 1249, Count 11), or Doe was acquitted by the jury. (CT 685-687.) All special allegations under § 667.61(b)(c)(e) were also dismissed. (RT 1256.)

The jury began deliberations on the afternoon of November 19, 2001, continued all day November 20, 2001, and verdicts were returned on the morning of November 21, 2001. (CT 669-673.)

Following convictions on Counts 4 and 5, Doe filed a motion for new trial on February 6, 2002, alleging four grounds: (1) the evidence was insufficient to prove molest or the enhancement of substantial sexual activity, (2) the court erred when it excluded evidence indicating Stephanie had a documented history of sexual intercourse and oral copulation with her step-brother and step-cousin, (3) the court erred when it refused to allow discovery of Stephanie’s psychological evaluation, and (4) jury misconduct. (SCT 510 et seq.) The first three grounds were denied, but the court granted a new trial based on prejudicial juror misconduct following an evidentiary hearing where two jurors were called to testify. (CT 476-480.)

In the trial court’s order granting the new trial on Counts 4 and 5, the court noted that Juror 2 had first vigorously denied [Footnote 3] under oath being the person who discussed with fellow jurors during deliberations the issue of how a molested girl would react to her molester by giving the example of what her manicurist told her. (CT 478.) Following an evidentiary hearing in which Juror 2 repeated her denials, the juror spoke with another juror in the hallway (Juror 8) and then admitted during deliberations:

she states that she remembered making the comment. She also states that during deliberations she shared with the other jurors the story her manicurist had told her. This statement was made in response to a concern raised by the alternate juror. The concern raised by the alternate juror was the victim’s demeanor during testimony. Juror #8 [sic, #2] wanted to bring the alternate juror “up to speed” so that the jury could discuss other issues other than the victim’s demeanor during her testimony which they had discussed previously at the beginning of the deliberation process. It was at this time she informed the alternate juror that the victim’s demeanor was appropriate based upon her friend’s experience. (CT 478.)

The trial court found jury misconduct:

Here, Juror #8 [sic, #2] spoke to an outside source (her manicurist) about the trial while the trial was still pending: she received outside information from that source about how a molested child may act normally after the molest. Then she used this information to influence the other jurors during deliberations when they were discussing the victim’s credibility. The totality of these events amounts to juror misconduct. (CT 479.)

Next, addressing the issue of prejudice, the court found:

The sole issue before this court is whether this misconduct amounts to a substantial prejudice. In other words, applying the test set forth in People v. Nesler, [(1997) 16 Cal. 4th 561] supra, did Juror #8’s [sic, #2’s] statements about child molestation, judged objectively, amount to such inherent prejudice that it would have influenced the jury?

Objectively, Juror #8’s [sic, #2’s] statements were meant to influence the other jurors. She made them at a time when the credibility of the witness was being discussed and she made it for the sole purpose to lend more credibility to the victim’s testimony. Therefore under the first prong of the test, Juror #8’s [#2’s] statements amount to substantial prejudice. (See McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256. [case where juror imparted extraneous information discrediting an important aspect of jury deliberations.]) The court having found that substantial prejudice arose under the first prong of the Nesler test, it need not address the second prong [whether there was actual bias by juror 2.] (CT 480.)

The District Attorney file a Notice of Appeal on May 9, 2002. (CT 617.) Rule 3, Rules of Court; Penal Code §1238(3).

III. STATEMENT OF FACTS

A. The Trial. Because Doe was convicted of two counts, and this appeal by the District Attorney is from the grant of the motion for new trial on those two counts based upon prejudicial jury misconduct, the statement of facts necessarily focuses on the two counts of conviction. The credibility of Stephanie C. was central to these two counts (RT 1792; CT 465), and that credibility received a significant, targeted, prejudicial boost from the foreperson during deliberations. The misconduct was directed at a new juror who expressed doubts about Stephanie’s accusation on the two counts of conviction because she acted normally at a party soon after the alleged conduct – as if nothing untoward had just occurred.

A. Prosecution Case. Both counts of conviction (Counts 4 and 5) stem from an alleged incident on September 14, 2000. (CT 16.) JOHN DOE was acquitted of all other charges. Stephanie C. was 14 when she testified (RT 670), and resided in El Cajon with her parents, her sister Galina, and her two brothers, Sean and Yuri. (RT 671.) Doe was a longtime friend of the C. family. (RT 674, 675.)

Some of the alleged events occurred while Stephanie’s parents were in Europe. In the parents’ absence, Mrs. S (“grammy”) and her husband, Stephanie’s surrogate grandparents, cared for her on the weekdays, and a family friend cared for her on the weekends. (RT 700-701.) Doe was to care for her brothers at Stephanie’s residence on the weekends. (RT 701.)

1. First Padre Game Allegation (Acquittal).

This baseball game allegation occurred sometime around Stephanie’s brother Yuri’s birthday on February 11. (RT 764, 765.) JOHN DOE asked Stephanie and her brothers if they would like to go to the game, but only Stephanie wanted to go. (RT 683.) The two boys “bailed” on going, according to Mrs. C. (RT 454.) Doe picked Stephanie up at her parent’s house [Footnote 4] and then said that he had to go to his house to change clothes. (RT 684.) He allegedly drove her to his apartment and Stephanie said he kissed her on the lips, touched her over her shorts and also on the skin above the knee. (RT 688-690.) Thereafter, they attended a night Padres game. (RT 766.)

Doe denied any such touching occurred (RT 1301, 1388, 1442-1443), testified the Padre Game was in August and that Stephanie’s two brothers, Sean and Yuri were supposed to attend as well, but then declined to go. (RT 1300.) He was acquitted of this count.

2. Second Padre Game, Recanted Allegation.

In a number of interviews and statements (RT 763, 755, 772, 773-774), and at the preliminary hearing (RT 774; PXRT 51-53), Stephanie alleged that Doe picked her up from her home and drove to his apartment where he touched her over the clothing in the pelvic area and kissed her on the lips. (RT 763, 755.) Thereafter, Doe, his grandmother and Stephanie attended the Padres game. At trial, she “recanted” (CT 466) her previous, multiple allegations about this alleged molest, stating it was a “mistake” and a product of confusion. (RT 755; 848-849.)

3. Alleged Baskin Robbins Incident (Acquittal).

Doe and Stephanie occasionally would go to Baskin Robbins for ice-cream from time-to-time. She asserted that on one of those occasions, she rode her bike to his apartment where he kissed her, touched her below the waist over her clothing. (RT 693-694.) He told her not to tell or he would go to jail. (RT 694.) Doe denied the allegation (RT 1444), and was acquitted of the charge. (Count 3.)

4. Gift for Sean Incident (Sept. 14, 2000, the Counts 4 and 5, the Counts of Conviction and Motion for New Trial Grant.)

Doe and Stephanie were to purchase a birthday gift (paint balls) for Stephanie’ brother, Sean, for his surprise birthday party planned by Doe and to be held at his parents’ home. (RT 701, 709.) When Doe picked up Stephanie that day at the Retro Sports store near her school (RT 859), he told her that he already bought the gift so they didn’t have to shop and could spend more time together. (RT 710.) He then took her to his apartment and showed her the paint balls. (RT 710-711.) [Footnote 5] Doe kissed Stephanie and touched her below the waist under her clothes. (RT 712.) They went into his bedroom and Doe then asked Stephanie to disrobe. (RT 723.) She did and then Doe, fully clothed, laid on top of her and told her he put his finger inside her. She “didn’t know” if this was happening because she had a pillow covering her head and didn’t feel anything. (RT 714-715.) Then, she sat on his lap and he showed her two or three pictures on his computer of naked people. She testified that the people depicted were, and were not, touching each other. (RT 718, 719, 720.) [Footnote 6] Doe touched her again in her private parts. (RT 720-721.) He told her not to tell anyone or he would go to jail. (RT 715.)

Stephanie did not mention this alleged touching at the computer in interviews prior to or at the preliminary hearing. (RT 819-820.) She remembered it just a few days prior to trial. (RT 820, 862.)

Mrs. S testified Doe dropped Stephanie off along with two of her girlfriends at about 6 p.m. and then they all went to the birthday party at the Does. (RT 487-488.) Mrs. Doe testified the kids arrived at her house at about 6 p.m. (RT 1678.) Doe denied the allegations. (RT 1326, 1446.)

5. Alleged Jacuzzi Incident. (Dismissed.)

JOHN DOE, Marina, Nadia and Stephanie were all sitting in Peggy W.’s Jacuzzi one evening. Peggy W. was home. Doe touched Stephanie over her bathing suit in the butt area while giving piggy back rides. (RT 741, 742.) This count (Count 6) was dismissed by the court at the conclusion of the prosecution case. (RT 1239.)

6. Alleged Beach Incident. (Acquittals.)

Doe, Stephanie, her brothers and sister (Sean, Yuri, Galina) and JOHN DOE’s girlfriend, Erin (RT 722), all were at the beach for a fireworks display. [Footnote 7] Because it was cold, several of them got under a blanket including Erin, Doe, Galina, and Stephanie. (RT 723.) Stephanie testified that Doe was lying next to her, but with his head next to her feet (and her head by his feet) so that his arms were around her ankles. (RT 732.) Erin lay next to Doe. (RT 731.) Stephanie testified Doe touched Stephanie’s private parts over her clothes and placed her hand on his penis, again on the outside of the clothing. (RT 733-734.) At the preliminary hearing, she testified the touching was under the clothing. (PXRT 72.)

After the fireworks display, Doe and Stephanie were sitting alone in the backseat of Erin’s car (RT 736), and he again touched Stephanie’s private parts under her clothing (RT 736), and had her touch his penis, over his clothing. (RT 737, 808.) At the preliminary hearing, she testified the touching was under his clothing. (PXRT 73.) Stephanie did not mention the alleged incident in the car to anyone until a few days before the preliminary hearing. (RT 809.) Doe denied any such misconduct occurred (RT 1350-1351, 1445), and was acquitted of the three counts (8,9,10) related to this allegation. (CT 685-687.)

None of the above allegations were disclosed prior to Stephanie’s argument with Doe and her argument with “grammy,” Mrs. S, who was taking care of her while her parents were away on vacation. Stephanie had been having problems with “grammy” and had a big fight with her and punched a wall in anger. (RT 763.) That led her to go see her trusted school teacher, Ms. Melone, to tell her of her problems. The only problem she discussed was the one she had with Mrs. S. (RT 762-763.) That led to her staying with a friend named Kym Tobias. (RT 762.) While there, Tobias asked her if Doe had kissed her and she said no. (RT 751.) Kym told her about her own molestation experience. (RT 751-752; 627.) Stephanie then told Kym about some of the above summarized conduct, and told Kym not to tell anyone. (RT 752.) Kym promised to keep it secret. (RT 630.)

Stephanie testified that shortly before she talked to Tobias, she was angry with Doe. She called him four or five times after school to get him to pick her up for a ride home. He declined. (RT 831, 832.) [Footnote 8]

B. Defense Case.

JOHN DOE testified and denied all the allegations of misconduct. (RT 1271, 1292, 1294, 1301, 1312, 1326.) He works as a licensed real estate appraiser. (RT 1277.) He was married from 1988 until his separation from his wife in February 1999. (RT 1273, 1278.) In May 1999, he began dating Erin Fisher who became his best friend and lover. (RT 1305.)

His family and the C. family were good friends since about 1981. (RT 1281, 1282.) Over time, the C’s became like “second parents” to Doe. (RT 1283.) He met Stephanie in 1993 when the C.’s adopted her. (RT 1283.) He often took the C. boys, Sean and Yuri, for coffee at Starbucks. (RT 1289.) He played with all the C. kids – Erin Fisher called him a human “jungle gym” because of the way the children crawled all over him in play. (RT 1306.)

Doe would buy birthday and other gifts for the C. children, e.g., Galina (RT 1286), Stephanie (RT 1309) [Footnote 9], Sean and Yuri (RT 1311), and would meet the C. kids at a Baskin Robbins near his apartment for ice cream. (RT 1290.) Sometimes the C. children, including Stephanie, came to his apartment unannounced, but nothing untoward occurred. (RT 1291, 1292, 1307, 1373.) Both Sean and Yuri spent the night at his place, but not any of the C. girls. (RT 1374.)

Rebutting the testimony of Carolyn C. ( RT 361), Doe was never told not to be alone with any of the C. kids. (RT 1295-1296.) [Footnote 10]

When Steven and Carolyn C. went on vacation in September 2000, Doe was given the responsibility of taking care of their boys on the weekends. (RT 1317.) In this regard, written and verbal instructions were given by Mrs. C. to Mrs. S’s and to Doe. (RT 397, 400, 408.) When given this task, Doe said to the C. parents that he would like to give Sean a 16th birthday party since they were going to be gone on that date (September 14). Carolyn C. told him that would be fine. (RT 1319.) [Footnote 11] Mrs. S testified Doe suggested the party for Sean and she said it would be “great.” (RT 478.)

On September 14, 2000, Doe took Stephanie to Parkway Plaza so that she could buy Sean a gift. (RT 1324.) But she didn’t find anything she wanted to buy and began losing interest in shopping. (RT 1326.) They drove back to Doe’s apartment for ten to twelve minutes for him to change clothes for the party. (RT 1326-1327.) Nothing sexual occurred. (RT 1435, 1436.) They then went to pick up Marina and Nadya, the W. children. (RT 1328.) He dropped them all off at the C.’s home and went to Vons to buy some chips and soda. (RT 1328.) At the party, Stephanie ate at the table with Doe’s sister, girl friend, and parents. [Footnote 12] (RT 1329.) Stephanie also joined the other kids in running around the yard and “doing what kids normally do.” (RT 1329-1330.) She was not acting unusual. (RT 1331.)

Doe (RT 1331), as well as his grandmother in her conditional examination CT 662), Karen Doe, his mother (RT 1678-1679), his girl friend, Erin Fisher (RT 1601), his sister, Erin Popka (RT 1747-1748), all testified to Stephanie’s normal activity and/or demeanor at the party. Erin Fischer testified Stephanie interacted with Doe just like the other kids. (RT 1602.) Mrs. S testified that Stephanie was running in and out of the house at the party with the other children and she admonished them to stop, but Mr. Doe, respondent’s father, said it was okay. (RT 491.)

Five days after the birthday party, on September 19th, Stephanie called Doe six times collect. He accepted two of the calls. (RT 1361.) She wanted him to pick her up from school because she didn’t want to go home to her house where grammy was taking care of her. She was having major difficulties with grammy. Doe told her to work out things with grammy. (RT 1362.)

Doe testified that when first confronted by Kym Tobias with Stephanie’s allegations, “I told her that was completely insane.” (RT 1366.)

Psychologist Dr. Ricardo Weinstein psychologically tested Doe and found him not to be a sexual deviate. (RT 1524.) Character witnesses testified to Doe’s good, honest character and/or his never doing anything questionable with children: Paul Longwell (RT 1714); Chris Karr (RT 1724); John Andrew Popka (RT 1735); Erin Popka (RT 1749); Todd Ward (RT 1775); Glen Baker (RT 1782-1783.)

B. The Motion for New Trial Hearing.

1. Declarations Filed. During their jury deliberations, while discussing the September 14th allegations, a juror told the other jurors that a friend was molested but acted “normally” soon thereafter with her molester father. This was offered to explain away the defense evidence that Stephanie’s normal conduct just after the alleged molest of September 14th was inconsistent with being molested. Post-trial, several jurors filed declarations. [Footnote 13] One (Juror 8) stated:

One area of concern shared by a number of jurors, was Stephanie C’s seemingly normal behavior after the alleged molest of 9-14-2000…. these jurors felt that if she had been molested, she would not have been able to act as normal afterwards…. one of the jurors, a female juror … told the panel that molest victims can act normally afterwards. She told the panel about a friend of hers who had been molested by her father and how they were able to act normally afterwards…. this information helped her understand that issue and appeared to help some of the other jurors.” (CT 544.)

Another juror (number 6) stated:

During the deliberations and while discussing Stephanie C’s acting normally at the birthday party,… said that [Juror 2] … brought up a personal experience of a friend of hers who had been molested by her father and how she had always been able to act normal, as an explanation for Stephanie C acting normal.” (CT 548.)

These declarations raised two independent issues: 1. failure of Juror 2 to abide by the court’s instructions not to discuss the case with others, in not reporting the contact to the court, and in sharing that information during deliberations to explain away a defense, all of which demonstrated her actual bias against respondent, and 2. by introducing such material into the jury deliberations to explain away the defense concerning Stephanie’s normal behavior within an hour or so of the alleged molestation, the misconduct denied respondent his due process fair trial rights of confrontation and right to an impartial jury. (The trial court found the latter, and thus did not need to address the actual bias issue.)

2. The Evidentiary Hearing. The District Attorney called Juror 2, the foreperson, and Juror 8 to testify at the evidentiary hearing. Juror 2 adamantly denied being the source of the information attributed to her by other jurors. (RT 2052, 2056-2057.) If anything, she attributed somewhat similar comments to Juror 8. (RT 2052; CT 611-612.)

Juror 8 testified in accord with her declaration that Juror 2 made the statement to the deliberating jurors that “it’s not uncommon for someone to be in a close relationship still with another – with the person that was molesting them.” Juror 2 said, “molest victims can act normally after the molest.” (RT 2069.) Further, as an example, Juror 2 said she knew “someone … whose father molested them, but they still had a very close relationship … to the point where she asked him to walk her down the aisle.” (RT 2061.)

The jurors then discussed the comment that “a person can be in a close relationship still with the molester, kind of like explaining.” (RT 2062.) Juror number 2 made these comments, said Juror 8. (Ibid.) The context of this discussion was “the jurors were discussing this child’s conduct immediately after the [alleged] molest” on September 14. (RT 2070.) Specifically, concerning the September 14th birthday party: “some of the jurors felt that it was hard for them to realize that anyone can be – can act normally towards their molester. And the other juror that felt differently from the other jurors.” (RT 2066.) That is, when Juror 2 said, “she knew of a person who had been molested by a father and that their relationship continued, quote, normally, at least from outward appearances” to the point that the woman had the molester walk her down the aisle as the father of the bride. (Ibid.) After these comments were made, all discussion ended about “how an alleged molested child could react after the molest.” (Ibid.)

After Juror 8 testified, the District Attorney recalled the foreperson, Juror 2. Again, she testified that no one during the jury deliberations mentioned anything about the father of a molested young woman “being the father of the bride at the wedding.” (RT 2076.)

3. Foreperson’s Epiphany and Recollection. After the evidentiary hearing, Jurors 2 and 8 spoke in the courthouse hallway. This led to Juror 2’s admission that: a) she in fact had spoken to her manicurist about the case during the trial, b) obtained the story from her about the father-of-the-bride, and c) relayed it to jurors in deliberations. (SCT 490.) [Footnote 14]

The context of sharing it with the jurors, according to the foreperson, was that during the deliberations, after one juror was replaced with an alternate, the latter stated he did not believe Stephanie; other jurors had expressed that belief as well. (Ibid.) In an effort to bring the juror “up to speed” and to “convince him that there were other issues to consider other than `demeanor’,” Juror 2 relayed the father-of-the bride example. (SCT 490-491.)

ARGUMENTS

I. ABUSE OF DISCRETION FOR REVIEW OF GRANTED MOTIONS FOR NEW TRIAL IS THE PROPER STANDARD OF REVIEW.

Appellant argues that the independent review standard should apply to appellate review of granted motions for new trial rulings for jury misconduct. There are two problems with appellant’s submission: first, California case law is to the opposite of that position, and second, there is no case law supporting the notion that a special rule of review should be carved out only for granted jury misconduct motions for new trial.

Abuse of discretion has been, and is, the proper standard of review of all granted motions for new trial. (See, e.g., People v. Andrade (2000) 79 Cal. App. 4th 651, 661 (upholding a motion for new trial grant based on the deprivation of effective assistance of counsel; People v. Sherrod (1997) 59 Cal. App. 4th 1168, 1175 (upholding the grant of a new trial for failure to grant a continuance).

“Where the motion is made on a proper statutory ground, and the record contains some showing in support of it, the judge’s discretion in granting is almost invariably upheld; i.e., the appellate court gives the order all of the presumptions in favor of any appealable judgment.” (6 Witkin & Epstein, Cal. Criminal Law, § 3084, p. 3806.) Here, the order was made on a property statutory ground, Penal Code section 1181(2), and constitutional grounds as well.

A. Case Law Supports the Majority Position That the Correct Standard of Review for A Granted Motion for New Trial is Abuse of Discretion.

Appellant erroneously states that the majority opinion of the Court of Appeal created a “double standard” of review depending on which side seeks relief. (AOB, 20.) The notion is self-contradicted on the next page where it is stated: “In fairness to the majority Justices of the Court of Appeal, the abuse of discretion standard for reviewing the grant of a new trial, as opposed to the denial of a new trial, based on jury misconduct finds support in older cases which have never been directly overruled.”

1. The historic rule has been that review of a motion for new trial, whether from a grant or a denial, is the abuse of discretion standard. The only shift in that rule in the last fifty years has been that granted motions for new trial for jury misconduct or other constitutional bases are reviewed under an abuse of discretion standard, but denied motions for new trial are reviewed de novo.

This has long been the rule in civil cases: “as a general matter, orders granting a new trial are examined for abuse of discretion.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 859.) In those cases, there is a distinction drawn between case-ending rulings (called “dispositive” rulings) by the trial court and those that are not. If a motion granting a new trial is actually deemed dispositive, that is, a ruling terminating the suit as a matter of law, review is de novo. But where the granting of a new trial does not terminate the action, such as when retrial is permitted, review is for abuse of discretion. As stated in Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Dep’t of Veterans Affairs (1998) 67 Cal. App. 4th 743, 751:

The difference in purpose means a difference in standards. Unlike nonsuits, directed verdicts, and judgments notwithstanding the verdict–we will call these the “dispositive” motions–granting a new trial does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner. Accordingly, the judge has much wider latitude in deciding the motion (e.g., Jones v. Evans (1970) 4 Cal. App. 3d 115, 121 [84 Cal. Rptr. 6]), which is reflected in an abuse of discretion standard when the ruling is reviewed by the appellate court. A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. (Mercer v. Perez (1968) 68 Cal. 2d 104, 112 [65 Cal. Rptr. 315, 436 P.2d 315].) Hence, given the latitude afforded a judge in new trial motions, orders granting new trials are “infrequently reversed.” (Id. at p. 113.)

One reason for de novo review on denied motions for new trial in criminal cases is that there is no defendant’s appeal from such orders. (People v. Lavergne (1971) 4 Cal. 3d 735, 745.) Motions for new trial, when denied, are non-appealable and merged into the appeal of the conviction itself.

Also, a more deferential standard could permit otherwise unconstitutional trial court orders to escape appellate detection, thus denying the defendant basic federal constitutional rights – the denial of fair jury trial. Because the State has an equal obligation with the federal courts to uphold a defendant’s federal constitutional rights, de novo review is the standard to insure that the federal constitutional guarantee is best assured.

That rule has not altered the review standard of trial court grants of such motions. With the exception of one recent case, [Footnote 15] it is, and has been, an abuse of discretion. [Footnote 16]

In Wilkinson v. Southern Pacific (1964) 224 Cal. App.2d 478, 483, the court stated: “If, on appeal from the judgment, the appellate court gives weight to a lower court order denying a new trial, interfering only for an abuse of discretion, then the appellate court abdicates — or at least seriously dilutes — its constitutional obligation.” The court noted that many California cases had stated that in appeals from rulings on new trial motions, the trial court’s order would be disturbed only for abuse of discretion. But it stated “[s]uch statements are appropriate only on appeal from an order granting a new trial. (Id. at 483.)

This was repeated in Deward v. Clough (1966) 245 Cal.App.2d 439, at p. 445:

While it is true that many California cases have stated the trial court exercises a discretion in weighing the prejudicial effect of error (e.g., misconduct of a juror) and that its action will be disturbed only for an abuse of discretion, a more accurate statement…is that article VI, section 4 ½, of the California Constitution “imposes on the appellate court a direct obligation to review the entire record … to determine independently whether error has prejudiced the appellant.” Therefore, while a determination by the trial court granting a new trial may be disturbed only for an abuse of discretion, the same observation is a non sequitur in an appeal from the judgment after an order denying a motion for a new trial.”

This Court said as much in Jiminez v. Sears (1971) 4 Cal.3d 379. In dealing with an appeal from a motion granted based on instructional error, the Court said:

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. (Id. at 387; italics added.)

In People v. Brown (1976) 61 Cal.App.3d 476, 482, the court reversed a denial of a motion for new trial based on jury misconduct and addressed the standard of review issue:

Some cases have treated the issue of the prejudicial effect of jury misconduct as being a question of fact for the trial court and have held that a finding of no prejudice implied in the denial of a new trial should not be set aside unless there is no evidence to sustain it. [Citations.] We are of the view, however, that the more enlightened and appropriate rule is that since jury misconduct challenges the fundamental rights to an unprejudiced jury and the fairness of the trial proceedings, this issue is an independent appellate issue to be adjudicated by this court based upon the whole record. [Citations.]

Citing Brown, the court in People v. Guzman (1977) 66 Cal. 3d 549, 560, the court also applied an independent review on the denial of a motion for mistrial for jury misconduct. (Both cases are cited at AOB 22.)

In City of Los Angeles v. Decker (1977) 18 Cal.3d 860, this Court reversed the denial of a motion for new trial based on attorney misconduct. In doing so, this Court relied on Deward and Wilkinson, supra, at pp. 871-872:

We are mindful of the fact that a trial judge is accorded a wide discretion in ruling on a motion for new trial and that the exercise of this discretion is given great deference on appeal. [Citation.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party (see Code Civ. Proc., § 906), including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. [Citations to Deward and Wilkinson.] …. [W]e find it reasonably probable that the jury would have arrived at a different verdict in the absence of the argument by the city and therefore deem it prejudicial misconduct which denied defendant a fair trial and entitles her to a new trial. [Emphasis added.]

In Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, a jury misconduct case, the appellate court overturned the denial of the motion for new trial citing to Deward and Wilkenson.

In Hasson v. Ford (1982) 32 Cal.3d 388, in reviewing the denial of a motion for new trial based on alleged juror misconduct, this Court applied a de novo review standard on the appeal while citing the above abuse of discretion cases when the motion has been granted:

On review of an order denying a new trial an appellate court has the obligation to review “the entire record, including the evidence, so as to make an independent determination whether the error was prejudicial.” (Cal. Const., art. VI, § 13; City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872 [135 Cal.Rptr. 647, 558 P.2d 545]; Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 366 [97 Cal.Rptr. 589]; Deward v. Clough (1966) 245 Cal.App.2d 439, 445 [54 Cal.Rptr. 68]; Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 483-484 [36 Cal.Rptr. 689].) (32 Cal.3d 417, n.10.)

After Hasson, this Court applied an abuse of discretion standard to motions for new trial denials in circumstances where the evidence presented showed either no evidence to support the presumption of misconduct, or that such evidence was trifling. (See People v. Miranda (1987) 44 Cal. 3d 57, 117-118 (no evidence juror received information); People v. Williams (1988) 45 Cal. 3d 1268, 1318 (dicta); People v. Cox (1991) 53 Cal. 3d 618, 694 (dicta); People v. Clair (1992) 2 Cal. 4th 629, 667 (noting a different standard of review applies when there is “inadvertent” error which does not raise a presumption of prejudice, but also finding the error harmless beyond a reasonable doubt).

However, when the evidence showed misconduct to raise the presumption of prejudice, the review process for denied motions is that of independent review. (See People v. Holloway (1990) 50 Cal. 3d 1098, 1109-1110 (reversing the denial of a motion for new trial based on independent review); In re Hitchings (1993) 6 Cal. 4th 97, 122 (on habeas corpus, granting the habeas petition for jury misconduct based on independent review of evidentiary hearing before referee); see also In re Carpenter (1995) 9 Cal. 4th 634, 654 (a habeas corpus petition granted by trial court was reversed under independent review standard); People v. Nesler (1997) 16 Cal. 4th 561, 582 (reviewed a denial of a motion for new trial under independent review and reversed the trial court decision)

Appellant argues that Carpenter, a habeas case, should control because it involved independent review of the habeas petition that had been granted by the trial court based on jury misconduct. There are different rules for review of habeas petitions versus orders involving appeals from motions for new trial, the most obvious being that the latter are almost always heard by the trial court soon after the trial when memories are fresh concerning the facts of the case for both witnesses and the trial court. That is one reason that appellate courts historically have given deference in reviewing orders on motions for new trial under an abuse of discretion standard. [Footnote 17]

For example, in In re Hamilton (1999) 20 Cal. 4th 273, an original habeas petition was brought in this Court almost 12 years after the trial. A referee, not the trial judge, was appointed to take evidence. Because the habeas petition was original in this Court, the standard of review was necessarily de novo.

Pragmatically, review of habeas petitions granted by a superior court under such circumstances would not deserve the same appellate deference as a granted motion for new trial by the trial judge ordered promptly following the trial. Trial judges have the unique advantage of having just presided over the litigation, understanding the strengths and weaknesses of the case, and can best assess the credibility of those who testified. They are in the best position to assess the prejudice, if any, from alleged jury misconduct. (See People v. Miranda (1987) 44 Cal. 3d 57, 117 (“the trial court was in the best position to evaluate the conflicting testimony and determine the prejudicial effect of Cunningham’s conduct”); People v. Steele (2002) 27 Cal. 4th 1230, 1267 (“Here, the trial court heard the extensive evidence presented at trial and was well positioned to determine whether the declarations showed misconduct….”); People v. Martinez (1978) 82 Cal. App. 3d 1, 25 (“In ruling on the motion for a new trial, the trial judge had all of the evidence before him and was in the best position to evaluate the prejudicial effect of the jury’s use of the maps;” see also City of Pleasant Hill v. First Baptist Church of Pleasant Hill (1969) 1 Cal. App. 3d 384, 430 (trial judge “was in the best position to evaluate the prejudicial effect of the alleged misconduct.” )

“As Witkin has observed, “`The trial judge is familiar with the evidence, witnesses and proceedings, and is in the best position to determine whether, in view of all the circumstances, justice demands a retrial.’ (3 Witkin, Cal. Procedure (1954), Attack on Judgment in Trial Court, § 10, at p. 2054).” (Bardessono v. Michels (1970) 3 Cal. 3d 780, 795 (upholding trial court denial based on jury misconduct .)

None of the above cases questioned the historic standard of review when a motion for new trial is granted. (See Bell v. State of California (1998) 63 Cal. App.4th 919, where the court, relying on Witkin’s summary of California law, [Footnote 18] stated “[t]he standard for review of an order granting a new trial is abuse of discretion.” (Id. at 931.))

The cases relied upon by appellant asserting that this court has held de novo to be the review standard for all motions for new trial based on jury misconduct (granted or denied) do not stand for that proposition. It is, of course, axiomatic that a case is not authority for points neither considered nor decided. (People v. Myers (1987) 43 Cal.3d 250, 265, n.5.; People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7.)

2. Romo v. Ford Motor Co. (2002) 99 Cal. App.4th 1115.

Romo is the sole case that has specifically held the review standard for granted motions for new trial on jury misconduct should be de novo, relying on Nesler and Hamilton, supra. As noted, those cases involve a review of a denied motion for new trial (Nesler), and a denied original habeas corpus petition filed in this Court (Hamilton) for the which the standard has always be de novo review. As such, they form no basis for a de novo standard of review for granted motions for new trial for jury misconduct.

Romo also relies on People v. Cromer (2001) 24 Cal. 4th 889, a case having nothing to do with jury misconduct or new trial motions. The issue in Cromer was the standard of review of the question of the “due diligence” used by the prosecution in seeking to subpoena a trial witness. The trial court found diligence had been exercised and allowed the reading of the witness’s prior testimony against the defendant. The Court of Appeal, independently reviewing the issue, found the State had not exercised due diligence and reversed the conviction. This Court agreed with the Court of Appeal that the issue should be reviewed de novo. In so holding, the Court, at p. 901, cited People v. Majors (1998) 18 Cal.4th 385, a death penalty appeal where jury misconduct was one of the issues denied at the new trial motion. Majors cited Nesler for the rule that in reviewing prejudice in such contexts of a denied motion for new trial, it is a matter of independent determination for the reviewing court. Again, neither Cromer nor Majors address the issue of the standard of review for granted motions for new trial.

Romo also suggests that the reviewing court is in the same position as the trial court to assess the prejudice from jury misconduct. (99 Cal. App.4th 1126-1127.) This is not so, and the above cases stating the judge is in the best position to assess prejudice from jury misconduct contradict the assertion. While jury misconduct may occur outside the presence of the trial court, once it is revealed and established at the motion for new trial, no one is in a better position to assess its impact on the fairness of the trial but the trial judge. As the Court of Appeal majority in this case stated, the trial court was able “to see the individual jurors during the evidentiary hearing on the jury misconduct issue and during the course of the trial, but also had the opportunity to see the witnesses who testified at the trial. Because of these opportunities, the trial court is in a unique position to assess the impact of potential prejudice from the alleged misconduct.” (Slip opn. at 14-15.)

Prejudice from established jury misconduct is primarily a factual issue applied within the legal standard. When a question of the review standard rests on the resolution of a mixed question of law and fact, and the issue is predominantly factual, abuse of discretion is the preferred standard. (See generally People v. Louis (1986) 42 Cal. 3d 969, 987.) Here, the issue of law is agreed upon by the parties: Juror 2 committed misconduct by talking about the case with another and then bringing into the deliberation process a perspective of how a child can act normal with an adult molester just after the molest conduct. This raised a presumption of prejudice that the State has the obligation to rebut.

That was the issue before the trial court. That was a predominantly factual determination and the trial court has the unique tools to make the assessment.

“It is equally well settled that such juror misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” (People v. Holloway (1990) 50 Cal.3d 1098, 1108.) What is the proof that appellant relies upon to show no prejudice? Again, the answer to the question necessarily has to be largely factual: an assessment of the historical trial facts to determine if misconduct aided in bringing about the conviction. Thus, the testimonial credibility of Stephanie, as boosted by the misconduct and in the context of all the other evidence, was an issue the trial court was in the best position to assess.

The trial court was uniquely familiar with the quality of that testimony. It was found not convincing by the jury an all charged counts except the two affected by the foreperson’s misconduct. This was a factual determination necessarily central to the resolution of the motion for new trial.

Appellant’s argument of non-prejudice rests on factual assessments from the trial and the post-trial hearing. One of the facts often used in a prejudice assessment, but not here, is “overwhelming evidence of guilt.” (See AOB, 31.) Obviously, if the evidence was heavily one-sided, the showing of prejudice would have to be very strong. But this case is so close that appellant states that the ultimate decision in the matter turns on the standard of review: “the answer to the second question presented, i.e., whether there was prejudicial juror misconduct in this case, is so close it turns on which appellate standard is applicable.” (AOB, 4.)

Contrary to the trial court and the Court of Appeal majority, appellant asserts that the misconduct “did not rebut any evidence presented by the defense.” (AOB, 33.) That too is a factual issue the trial court was best positioned to decide. The evidence shows that misconduct was directed to rebut the defense defense witness testimony of Mrs. Gruel, Erin Fischer, Erin Popka and Karen Doe that Stephanie acted normally at the party, and thus raised the question to jurors of whether anything sexual had just happened with Doe. The jury misconduct directly undermined the defense position that Stephanie acted as if nothing had happened by providing the “explanation” for Stephanie’s “normal conduct.”

Appellant asserts that the misconduct “simply illustrated a matter subject to a juror’s common knowledge.” (AOB, 34.) This is refuted by appellant’s own statement that the story told by the foreperson was told “too dispel such misconceptions expressed by at least one juror.” (AOB, 38.) What are these misconceptions to which appellant refers? The type, appellant argues, that are typically the subject of expert testimony and used “to dispel myths and misconceptions potentially held by juror about how child molest victims may react to their abused.” (AOB, 38).

If, as appellant submits, the foreperson’s story was the type of information that an expert would give from the witness stand, what better showing of prejudicial misconduct could be made? Case law allows such expert testimony, under strict evidentiary conditions, to inform a jury how molestation victims may act in the post-molest period. This is done to show that the conduct may be consistent with molestation. (See, e.g., People v. Bowker (1988) 203 Cal. App. 3d 385, 392.) But such expert evidence is admitted for the limited purpose of dispelling juror myths and misconceptions as to how child abuse victims may react to abuse. In such cases, there is ample opportunity for cross-examination, the presentation of opposing opinion, and the jury is informed that the testimony is not admitted to show the truth of the child’s accusation. For such testimony to be used to prove the truth of a molest accusation, it must first clear the People v. Kelly (1976) 17 Cal. 3d 24, foundation for accuracy. (People v. Bowker, supra at 391-394; People v. Sanchez (1989) 208 Cal.App.3d 721, 734-35). Obviously, none of the safeguards of trial exist when a juror is providing information from an outside source. When such information is passed along to jurors during deliberations on the issue of the credibility of the accuser, legal restrictions cannot be enforced.

Appellant’s assertion that Lisa McCullouchs’ testimony was the same as that imparted by the foreperson is wrong. (AOB 36-37.) First, McCulloch’s testimony related to her interview was with Galina, not Stephanie. (RT 1132.) Second, her generic testimony was that a child’s embarrassment about disclosing abuse in an interview depends on their developmental level and perception of the abuse. (RT 1133.) The foreperson’s “evidence” during deliberations offered quite a different expertise and nothing to do with disclosure issues. The point of the foreperson’s response to the doubting juror(s) was that an abused child can feel comfortable in the presence of the abusing adult and conduct herself as if nothing had happened.

B. Appellant Is Not Denied Due Process by the Abuse of Discretion Standard of Review. Without citation to case authority or briefing development, appellant suggests that the State’s right to due process under Calif. Consti., article I, § 29, warrants de novo review. (AOB 26.) Appellant never raised this issue in the Court of Appeal. The misconduct undermined Doe’s federal and state constitutional rights to a jury trial. Nothing in the review process denied the prosecution due process. [Footnote 19] None is asserted.

The post-trial hearing provided the appellant the opportunity to introduce evidence and argument, and then appeal. That is the process due it. Smith v. Phillips (1982) 455 U.S. 209, a case of alleged actual juror bias, the trial court held a hearing to investigate the allegation. “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” (Id. at 217.) The Supreme Court concluded that “if in the federal system a post-trial hearing such as that conducted here is sufficient to decide allegations of juror partiality, the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system.” (Id. at 218.)

C. Federal Cases: United States v. McConney and Progeny.

The District Attorney brief looks to federal cases for support citing United States v. McConney (9th Cir. en banc 1984) 728 F.2d 1195, 1199-1204. (AOB 24, 26, 27.) That case held that the issue of exigent circumstances to justify a warrantless search is reviewed de novo. In the process, it surveyed appellate review standards.

Post-McConney, Ninth Circuit cases are not uniform on the standard of review for jury misconduct cases. Abuse of discretion is the apparent standard. But whatever the standard, the federal cases note that special deference on appeal is to be given to trial court decisions on prejudice from jury misconduct issues, particularly after holding an evidentiary hearing. As stated in United States v. Madrid (9th Cir. 1988) 842 F.2d 1090, 1092:

We review alleged jury misconduct independently, in the context of the entire record. United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962, 102 S. Ct. 2030, 72 L. Ed. 2d 487 (1982). We accord substantial weight to the trial judge’s conclusion as to the effect of alleged juror misconduct. Considerable deference is paid to the trial judge, since “the trial judge is uniquely qualified to appraise the probable effect of information upon the jury, the materiality of the extraneous material, and its prejudicial nature.” United States v. Steele, 785 F.2d 743, 746 (9th Cir. 1986), quoting Bagnariol, 665 F.2d at 885. We look less harshly upon a conviction if the trial court has conducted an evidentiary hearing. Bagnariol, 665 F.2d at 885.

See also United States v. LaFleur (9th Cir. 1992) 971 F.2d 200, 206 (“Although we review alleged juror misconduct independently, we accord ‘substantial weight’ to the district court’s conclusion as to the effect of the misconduct.”)

On the review standard for granted motions for new trial based on jury misconduct, the Circuit has given mixed signals. Compare U.S. v. Edmond, 43 F.3d 472, 473 (9th Cir. 1994) (“A district court’s order granting a new trial for juror misconduct is reviewed for abuse of discretion”); U.S. v. Keating, 147 F.3d 895, 899 (9th Cir. 1998) (“Ordinarily, we review a district court’s decision to order a new trial for an abuse of discretion. [Citation]. In cases where jurors are exposed to extrinsic evidence, however, our review ‘is an independent one, and we must consider the entire record in determining whether the state has met its burden of demonstrating that extrinsic evidence did not contribute to the verdict.’ Dickson v. Sullivan, 849 F.2d 403, 405-06 (9th Cir. 1988).”)

For denied motions for new trial based on jury misconduct, the Ninth Circuit has used an abuse of discretion standard. (See United States v. Mills (9th Cir. 2002) 280 F.3d 915, 921 (noting that the reviewing court “must accord special deference to the trial judge’s impression of the impact of the alleged misconduct”); and see United States v. Hanley (9th Cir. 1999) 190 F.3d 1017, 1031 (stating the review standard as both abuse and de novo: “We review the district court’s denial of a motion for a new trial on the asserted ground of juror misconduct for an abuse of discretion [with citation to United States v. LaFleur, supra to accord special deference to the trial judge’s impression of the impact of the alleged misconduct])

While it is difficult to take much from these divergent cases, one rule of review is manifest: even under an independent review standards, deference is to be given to the trial court’s assessment of the prejudice from misconduct after the motion for new trial hearing. As such, the Ninth Circuit’s giving deference to trial court findings of prejudice following an evidentiary hearing is the functional equivalent of an abuse of discretion standard.

In sum, as many cases of this and lower courts have held, in the rare event that a trial court finds misconduct so prejudicial to warrant a new trial, an abuse of discretion standard should apply on an appeal of that order. When the trial denies the motion after finding no misconduct, an abuse of discretion standard applies to review of that order. (E.g., People v. Steele, supra at 1267.) Finally, where jury misconduct is found but without prejudice, the standard of review is de novo. (People v. Nesler, supra.) Abuse of discretion is the proper standard of review in this case.

III. PREJUDICE WAS ESTABLISHED UNDER ANY STANDARD OF REVIEW INCLUDING DE NOVO AND CHAPMAN v. CALIFORNIA (1967) 386 U.S. 18.

Appellant next argues there was no prejudice. (AOB at 29 et seq.) Under an abuse of discretion standard, appellant appears to agree that the new trial order must be affirmed. (AOB, 4.) He argues that under de novo review, prejudice is shown rebutted. However, both the trial court and the appeal majority found the juror’s misconduct prejudicial.

A. The majority opinion of the Court of Appeal also employed independent review to uphold the trial court order. After stating that abuse of discretion is the proper standard of review, the Court of Appeal majority examined the evidence themselves and concluded that they agreed with the trial court’s finding of prejudice. Such agreement bespeaks of independent review for under the abuse of discretion standard all the majority had to do to end the matter was find substantial evidence supporting the trial court findings. Instead, it reviewed the facts supporting the trial court’s prejudice finding and cited two instances of misconduct: the foreperson’s discussion about the case to a non-juror despite repeated court admonitions during the trial not to do so, [Footnote 20] and the fact that the foreperson interjected the extraneous information into the jury deliberations at a critical time – when a new juror joined deliberations, the foreperson, told the story to help get the new juror over his expressed disbelief of Stephanie’s story to cut off his concerns.

The majority then examined the misconduct (Slip opn., 16) in detail to assess its prejudice on the deliberative process. In this analysis, the majority applied an independent examination of all the evidence in the record. E.g., “the misconduct must be viewed in light of all the circumstances.” (Ibid.)

Moreover, since Juror No. 2 was the foreperson, it is likely her statements were accorded extra consideration. [Footnote 21] An inference may be drawn that the effect of the story was to curtail deliberations by the alternate juror and, as a result, the jury, as a whole, committed misconduct by not beginning deliberations anew upon the impanelment of an alternate juror. This is also serious misconduct leading to a presumption of prejudice. (Slip opn., 17.)

Then, the majority stated that “the misconduct becomes even more apparently prejudicial when viewed in light of the record as a whole.” (Ibid.) The majority noted the closeness of the case (Doe was acquitted of 11 of 13 charges), and that the only two counts of conviction were directly related to the foreperson’s misconduct.

Witnesses uniformly testified Stephanie acted as if nothing had happened at the party just after the alleged molestation. (Ibid.) One doubting juror’s disbelief in her testimony was grounded in the defense evidence and the prosecution position that Stephanie “felt embarrassed and guilty about defendant molesting her….” (District Attorney’s Petition for Review, 5.) The defense evidence was that she showed no signs of that just following the alleged molest. The doubting juror[s] concerns were cut off by the foreperson in relating her manicurist’s story to show how molested children act normally with their molester, coupled with a statement to the new juror that the credibility issue had already been covered; thus, she would “bring him up to speed.” (CT 478; SCT 490-491.) After assessing these facts, the majority concluded with its own independent assessment of prejudice:

We agree with the trial court. After reviewing the entire record in this case, we conclude the misconduct was serious, raised a presumption of prejudice, and that presumption was not rebutted. We cannot say this is a case where there was no substantial likelihood of prejudice to Doe; the record indicates that not only was extraneous information introduced during jury deliberations but also that this information was used and inferably resulted in one of the jurors not deliberating on a key issue involving the key witness’s credibility. (Slip opn., 18; emphasis added.)

The dissent recognized “my colleagues can reach this conclusion [of prejudice] only with an independent review of the record.” (Slip opn., dissent, 3.)

B. Appellant’s Arguments Do Not Rebut the Presumption.

Appellant argues the material was not prejudicial because the subject matter related to common knowledge. The example given, at AOB 35, is People v. Fauber (1992) 2 Cal. 4th 792, a death penalty case where some jury discussions of drug use occurred in deliberations. Two glaring deficiencies appear in the reference. First, as this court stated: Fauber “does not attempt to show how the jurors’ statements regarding drug and alcohol use by family members might relate to any of the issues in this case, and no connection is apparent.” (Id. at 838.) Here, the trial court and court of appeal majority found a direct connection from the foreperson’s misconduct and the credibility of Stephanie concerning the two counts of conviction. Second, unlike this case, in Fauber there was neither a violation of the court’s repeated orders not to discuss the case with others, nor the introduction of extraneous material into deliberations. (The same analysis applies to appellant’s cite to People v. Yeoman (2003) 31 Cal. 4th 93, 157-164.)

At AOB 27 and 33, appellant relies on People v. Resendez (1968) 260 Cal. App. 2d 1, a trial of mentally disordered sex offender. Resendez argued on appeal that trial court erred in denying his motion for new trial because a juror failed to disclose during voir dire that she had been molested by her step-father, but shared this with the jury during deliberations. In finding no “miscarriage of justice,” the appellate court focused on the juror’s unintentional concealment of the incident, her not intending to influence the verdict improperly, and that the comment had “no substantial influence upon the ultimate verdict.” (Id. at p. 11.)

By contrast, here, the trial court found the foreperson’s “statements were meant to influence the other jurors. She made them at a time when the credibility of the witness was being discussed and she made it for the sole purpose to lend more credibility to the victim’s testimony.” (CT 480.) [Footnote 22] Moreover, unlike Resendez, the foreperson did not merely bring her own experiences to the deliberation room, she obtained outside information to introduce as the answer to a juror’s doubts on Stephanie’s credibility. And, here, the trial court found that the comment did infect the verdict by granting a new trial.

Finally, Resendez is bad law because it cannot be squared with subsequent case law and standards routinely employed in misconduct cases. In People v. Diaz (1984) 152 Cal. App. 3d 926, the jury foreperson concealed during voir dire she had been an sexual assDoe victim, the same type of crime for which the defendant was charged. In finding the trial court erred in denying the motion for new trial, the court explicitly disagreed with Resendez. (Id. at p. 973, fn.4), and ordered a new trial. (See also People v. Blackwell (1987) 191 Cal. App. 3d 925, 929 (relying on Diaz.)

Resendez relies on the “miscarriage of justice” standard under article VI, section 13 of the California Constitution which has nothing to do with the standard of review. The section normally means that for non-federal constitutional errors, the People v. Watson (1956) 46 Cal.2d 818, harmless error prejudice standard applies. This is not always true. As stated in People v. Sherrod (1997) 59 Cal. App. 4th 1168, 1174-1175, a case upholding the grant of a new trial for failure to grant a continuance, “criminal defendants, regardless of their guilt or innocence, are entitled to a fair trial, and the denial of a fair trial, in and of itself, results in a miscarriage of justice, whether or not the defendant meets the Watson standard of prejudicial error.”

Also, as People v. Cahill (1993) 5 Cal. 4th 478, 509-510, made clear, “because the Watson standard is less demanding than the harmless-beyond-a-reasonable-doubt standard mandated by the applicable federal constitutional authorities,” federal standards will be employed for such questions. (See, e.g., Diaz, supra at 934; Blackwell, supra at 929-930.)

Under de novo review, historical factual determinations, express and implied, cannot be overcome on appeal by mere argument. Thus, the trial court finding that the foreperson discussed with her manicurist during trial the case and then intentionally interjected the information into deliberations at a critical time is supported by substantial evidence to be given deference on appeal.

In People v. Nesler (1997) 16 Cal. 4th 561, this Court held that a juror who went to a bar and listened to negative “remarks concerning defendant cannot be considered inadvertent. Moreover, her subsequent failure to disclose the information to the court and her intentional use of the information during deliberations are more than adequate to establish serious misconduct.” (Id. at 580.) Nesler also held that a “juror’s disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias.” (Id. at 587.)

Appellant states, “other than its tendency to rebut the defense argument that Stephanie must have been lying about the molestations because she was seen behaving normally afterwards, the father-of-the-bride story had no other persuasive force.” (AOB, 38; emphasis added.) This statement alone is sufficient to show that the presumption of prejudice was not rebutted, that is, that “the extraneous material judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror.” (In re Carpenter, supra, 9 Cal. 4th at p. 653.)

Appellant’s statement, “… the father-of-the-bride story may have assisted one or more jurors in reaching this conclusion [Stephanie’s credibility in these accusations]….” (AOB 45), also shows the prejudice from the misconduct.

Specifically, prejudice was shown (and thus not rebutted) by examination of the context of the foreperson’s comment. The foreperson made the comment after a new juror joined the deliberations. The new juror wanted to discuss the lack of credibility of these two charges. (Slip opn., 17.) That was when the foreperson used her story to cut off his discussion of the issue. As the foreperson stated to the District Attorney investigator after her testimony at the evidentiary hearing: During deliberations, after one juror was replaced with an alternate juror, the latter stated he did not believe Stephanie; other jurors had previously expressed that belief as well. (SCT 490.) [Footnote 23] In an effort to bring the juror “up to speed,” and to “convince him that there were other issues to consider other than `demeanor’,” the foreperson relayed her story from the talk with her manicurist. (SCT 490-491.) This, of course, defeated the trial court instruction to begin deliberations anew with the new juror rather than telling the new juror the conclusions already reached. [Footnote 24]

Appellant suggests that the record does not reflect details of the “father of the bride” example given by the foreperson. (AOB, 38.) There was no need for details. This story was given as an example of how molest victims purportedly act normally with their molesters and stated to counter the concerns of the disbelieving jurors that Stephanie’s behavior was inconsistent with just experiencing a molest. The story was sufficiently detailed to make the point.

Jurors could reasonably question why Stephanie acted as if nothing occurred just after the alleged molestation on the afternoon of the 14th. Having had reasonable doubts as to all of her other accusations, they reasonably would have doubts about this accusation given that it was timed near simultaneous with her heated argument with Mrs. S over the latter’s supervision (sufficient to cause her to leave her home), and her anger at respondent for not obeying her repeated demands that he pick her up from school. Further, they could reasonably believe that the accusations arose to please her friend Kym Tobias, who disclosed her molest history in prodding Stephanie about her relationship with respondent. After that, Stephanie made Kym promise to keep what she said a secret. The jury could reasonably believe Stephanie made her “secret” accusation thinking she would bond with Kym and that nothing would come of the secret.

For the reasons expressed by the trial court and the Court of Appeal majority, this misconduct was prejudicial: in a close case, where Doe was acquitted of all other counts, the misconduct directly supported the accuser’s credibility on the two counts of conviction. It was demonstrably prejudicial misconduct under de novo review because after deferring to the factual findings of the trial court, the presumption of prejudice standard was not rebutted. The misconduct supported the believability of the two counts of conviction, lightened the State’s burden of proof, and denied Doe the ability to confront the “evidence” presented by the foreperson.

IV. IF NECESSARY TO ADDRESS THE ACTUAL BIAS PRONG, THE MATTER SHOULD BE REMANDED AS NEITHER THE TRIAL COURT NOR THE COURT OF APPEAL HAVE ADDRESSED THE ISSUE.

Appellant addresses this issue (pp. 39-47), but neither the trial court nor the majority considered the actual bias issue (prong two of the state test for juror misconduct under People v. Nesler (1997) 16 Cal. 4th 561). If necessary, the matter should be remanded to the trial court to consider the issue.

In an abundance of caution, appellant will briefly reply to appellant’s argument on actual bias. We start with the commonsense notion that interjecting material obtained from outside sources into the deliberative process “tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias.” (People v. Nesler, supra at 587.)

The misconduct shows bias, that is, a state of mind resulting in the juror actually being influenced by extraneous information about a party. Here the foreperson had heard repeated orders from the court to not discuss the case with others. Nevertheless, she discussed the case with her manicurist during trial. “When a person violates his oath as a juror, doubt is cast on that person’s ability to otherwise perform his duties.” (People v. Cooper (1991) 53 Cal.3d 771, 835-836.) In other words, the foreperson “did not disregard the out-of-court information to which she had been exposed, but rather kept that information in mind and was influenced by it in considering the issues that arose during deliberations.” (Nesler, supra at 584.) She interjected the information which explained away, if not “contradicted other evidence presented at the trial, precisely when the jury was debating the merits of” Stephanie’s credibility about the two counts in question. (Nesler, supra at 585.) [Footnote 25]

That she thought the information important enough to relay to the others and diffuse credibility concerns being discussed about the counts of conviction, demonstrates that she herself was influenced by the material and used it to influence the others. As stated in Nesler, supra, at 583: “[the juror] was unable to put aside her impressions or opinions based upon the extrajudicial information she received and to render a verdict based solely upon the evidence received at trial.”

Appellant’s argument on page 42 that the foreperson did not “initiate any conversation about the case with her manicurist” is unsupported. How else could her manicurist know the foreperson was on a jury in a molest case?

The undisputed fact is that the foreperson discussed the nature of the case with the manicurist and then took back her comments to the deliberations for use in defusing the concerns of one or more jurors. The trial court was not required to find in accord with Juror 2’s sugar-coated, belated, contradicted and recanted recollections of how the discussion with the manicurist took place.

In Nesler, this Court held that a juror’s listening to another’s “remarks concerning defendant cannot be considered inadvertent. Moreover, her subsequent failure to disclose the information to the court and her intentional use of the information during deliberations are more than adequate to establish serious misconduct.” (Id. at 580)

The trial court certainly did not accept the appellant’s rendition that the “story was so meaningless” that the foreperson did not remember telling it to the rest of the jury until she conferred directly with Juror No. 8 after the evidentiary hearing….” (AOB 44; See p. 41, fn. 22 supra.)

Appellant’s statement that the new juror’s concerns with Stephanie’s credibility were not very strong and that he “was easily persuaded to put such concerns aside” (AOB 45) are unsupported by the record and belied by the acquittals of all the other counts (i.e., Stephanie’s version was found not credible by this and other jurors). Further, it was the foreperson who directed the course of discussion in the deliberations with the new juror, and as she stated, in an effort to bring the new juror “up to speed” and “convince him that there were other issues to consider other than `demeanor’,” she relayed the father-of-the bride story and cut off discussion on the issue. (SCT 490-491.)

Stephanie’s accusations were unconvincing to the jury on every count in the eyes of the jurors except for the two counts subject to the misconduct. Her credibility was essential to these convictions and it is wrong to say (see AOB 45) that the foreperson’s injection of the story to explain away Stephanie’s acting as if nothing happened was innocuous or had no impact on her view of the case. [Footnote 26] The foreperson’s conduct demonstrated an actual bias that also supports the ruling below.

CONCLUSION

For the above stated reasons, the decision of the Court of Appeal should be affirmed.

Dated: February 5, 2004

Respectfully submitted,

Charles M. Sevilla

Attorney for Respondent Doe

FOOTNOTES:

Footnote 1: When referring to the Court of Appeal opinion, Doe will cite to the “Slip Opn.,” found in Exhibit A to the District Attorney’s petition for review. “RT” will stand for the reporter’s transcript of the trial. “CT” stands for Clerk’s Transcript, “SCT” stands for the Sealed Clerk’s Transcript, and “PXRT” for the preliminary hearing. Appellant’s opening brief will be referred to as “AOB.”

Footnote 2: The trial court dismissed counts 6 and 7 (RT 1239, 1242), and the jury acquitted the balance of these counts except for counts 4 and 5.

Footnote 3: Juror 2, the foreperson (RT 1978), denied making the statement in a declaration (SCT 611), and again in her testimony at the hearing. (RT 2052.) She testified that Juror 8 made a similar statement (RT 2052), but denied anyone said anything about a father of a molested woman being the father of the bride at the wedding. (RT 2076.)

Footnote 4: Her mother was aware that Doe took her to the game. (RT 355-357.)

Footnote 5: The only paint balls given Sean at the party were never in Doe’s apartment according to the witnesses who gave Sean the present, Erin and John Popka. (RT 1748, 1730-1732.) Doe bought Sean paint balls the next day. (RT 1319-1320.)

Footnote 6: A defense computer expert testified that upon examination of the computer in question, no access of the files occurred on the afternoon of September 14th. (RT 1490.)

Footnote 7: Mrs. C. testified Yuri did not attend (RT 409), as did Galina (RT 916), Doe (RT 1336), and Erin Fisher (RT 1608-1609.)

Footnote 8: The phone calls to Doe occurred the day before she talked to Tobias about the alleged molest. (RT 852.)

Footnote 9: Doe gave Stephanie a gift toy frog and some candy. (RT 679.) “Frog” was a nickname Doe gave her based upon how she appeared when shooting basketballs. (RT 759, 1308.)

Footnote 10: Mrs. S was also unaware of any such directive. (RT 485.) Mrs. S testified that Stephanie did not show any behavioral changes until one week after the September 14th party when she and Stephanie argued. (RT 495, 497.)

Footnote 11: Mrs. C. denied any discussion that the party be at the Doe’s home. (RT 376.) However, Mrs. S and Doe talked about having the party while the C’s were on vacation. (RT 524.)

Footnote 12: Mrs. Doe, respondent’s mother, commented to Stephanie about the huge hamburger she was preparing to eat and asked if she could consume it all. The reply was, “Watch me.” And she ate it. (RT 1680.)

Footnote 13: The juror declarations were received in evidence. (RT 2077.) Doe made his submission of declarations subject to Evidence Code 1150. (CT 535, n. 8.) This was reiterated at the conclusion of the hearing when the newest post-hearing juror declarations were admitted as evidence “subject to the restrictions of Evidence Code 1150.” (RT 2035.)

Footnote 14: This evidence comes from her post-hearing declaration and interview with the District Attorney, received as evidence. (RT 2035.)

Footnote 15: Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1126-1127, judgement vacated on o.g., 538 U.S. __; 123 S. Ct. 2072; 155 L. Ed. 2d 1056, discussed infra.

Footnote 16: Early criminal cases used the abuse of discretion standard of review for granted motions for new trial: People v. Flood (1894) 102 Cal. 330 (based upon insufficiency of evidence); People v. Canfield (1916) 173 Cal. 309 (for lack of fair trial due to introduction of other crimes evidence); People v. Ferlin (1928) 203 Cal. 597 (new trial motion granted under Penal Code section 1181, lack of evidence); People v. McCord (1936) 15 Cal.App.2d 136, 140 (verdict contrary to law: “The question of whether error is prejudicial is a question for the determination of the trial court in ruling upon the motion for new trial and the trial court is allowed a wide discretion in making its determination of this question. Where there is error in the record and the trial court grants a new trial because of such error, its ruling should not be disturbed unless it clearly appears that the trial court has abused its discretion.”)

Footnote 17: In Walling v. Kimball (1941) 17 Cal.2d 364, 368-369, this Court upheld a trial court finding of no prejudicial attorney misconduct as “a finding of fact which the trial court was justified in making when the motions for new trial were denied….” The Court held that the trial judge “was in the best position to observe the demeanor of the parties and to gauge any possible effect it might have had upon the jury.” “The trial judge is in a much better position than an appellate court to determine whether the verdict in a case is probably due wholly or in part to such misconduct and his conclusion in the matter should not be disturbed unless it is plainly wrong.” (Id. at p. 369.)

Footnote 18: “[J]uror misconduct is an area in which the broad discretion is accorded to the trial judge. (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 139, p. 640.) Witkin distills the law on the point: `The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, his discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judge’s ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion.’ (8 Witkin, supra, § 143, p. 644.)” (Bell, supra at pp. 930-931.) Accord 6 Witkin & Epstein, Cal. Criminal Law (3rd Ed. 1989), § 3084.

Footnote 19: See Alford v. Superior Court (2003) 29 Cal. 4th 1033, 1044 (as a party, the district attorney under general due process principles is entitled to notice of the date and place of the hearing on a defense Pitchess motion); Miller v. Superior Court (1999) 21 Cal. 4th 883, 893 (in discussing the lack of legislative intent on section 29, held that it did not expand the prosecutor’s right to obtain evidence forbidden under article I, section 28(d).) It is just as unlikely section 29 was intended to alter the appellate standard of review from a granted motion for new trial based on jury misconduct following a noticed evidentiary hearing. Compare Menendez v. Superior Court (1992) 3 Cal. 4th 435, 456 (upholding superior court evidentiary hearing on privileged material held largely in camera outside the presence of prosecution but in the presence of defendants and their counsel).

Footnote 20: See RT 420, “you must not discuss this case with any other person except a fellow juror. See also RT 636 (“remember my admonitions about not discussing this case”), RT 922, 1107, 1217, 1472, 1662, 1774.) (In re Hitchings (1993) 6 Cal. 4th 97, 118 (“Violation of this duty is serious misconduct.”))

Footnote 21: See, e.g., People v. Honeycutt (1997) 20 Cal. 3d 150, 158 (“the errant juror was the foreman whose perceptions and conclusions may often sway other jurors.”)

Footnote 22: Appellant is thus wrong in stating that the trial court made no findings on the foreperson’s credibility. (AOB 31.) Finding intentionality in the misconduct undermines the foreperson’s allegedly belated recall of the events.

Footnote 23: The DA investigator’s post-hearing juror interviews were admitted as evidence subject to Evidence Code section 1150. (RT 2035; CT 596, n. 2.)

Footnote 24: In accord with People v. Collins (1976) 17 Cal. 3d 687, 693-694 the trial court instructed: “You must therefore set aside and disregard all past deliberations and begin deliberating anew. This means that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place.” (RT 1961.)

Footnote 25: Additionally, the juror committed “passive misconduct” in not reporting the discussion with the manicurist to the court. (Nesler, supra at 586.)

Footnote 26: Appellant’s claim that Stephanie was corroborated by the computer files (AOB 46), was contradicted by the defense computer expert testimony that the files were not accessed during the time Stephanie said she was in appellant’s apartment. Appellant also disputed Stephanie’s mother’s claim about telling him not to be alone with Stephanie.