Filed 9/7/16 P. v. Nelson CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B261378

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA110447)
         v.

JAMES E. NELSON,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Laura F. Priver, Judge. Affirmed.


                   Murray A. Rosenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R.
Johnsen and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION


       A jury convicted James Nelson of attempted voluntary manslaughter, as a lesser
included offense of attempted murder. There was some evidence the jurors briefly
discussed the fact that Nelson did not testify at trial in his defense. We conclude that the
trial court did not err in denying Nelson’s motion for a new trial because the admissible
evidence of jury misconduct was not prejudicial. Therefore, we affirm.


                 FACTUAL AND PROCEDURAL BACKGROUND1


       A.     Michelle Barnes and Her Children
       Michelle Barnes has three children, all of whom were detained by the juvenile
court in 2008. Her oldest child, J., was placed with Ester Nelson, who lives in a house in
Compton, and whose brother is the father of one of Barnes’s other children. Ester Nelson
is thus the aunt of one of Barnes’s children, but not J. J. sometimes plays at the house of
a next-door neighbor, Christina Valencia, with her son.
       In 2008 and 2009, Barnes had monitored visits with J., usually at a fast-food
restaurant. These visits were sometimes monitored by Ester Nelson, and sometimes by
social workers or others. Barnes also had monitored (by Ester Nelson) telephone
conversations with J. Whether Barnes could have monitored visits at Ester Nelson’s
house was disputed.
       The relationship between Barnes and Ester Nelson deteriorated after the juvenile
court placed J. with Ester Nelson. Barnes was displeased with the care Ester Nelson was
providing for J. The two women argued about this, and Barnes complained about Ester



1      Because Nelson’s appeal from the trial court’s denial of his motion for new trial
involves only the issue of juror misconduct, we summarize the facts briefly in a light
most favorable to the judgment. (See Gyerman v. United States Lines Co. (1972) 7
Cal.3d 488, 492, fn. 1; Superior Gunite v. Ralph Mitzel Inc. (2004) 117 Cal.App.4th 301,
304, fn. 1.)

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Nelson to the juvenile court and county social workers. By the time of trial in this case,
Barnes had custody of J. again.


       B.     December 24, 2009
       On December 24, 2009 Barnes went to Ester Nelson’s house to bring J. Christmas
presents. She had made arrangements for the visit with Ester Nelson in advance. Harold
Griffin, whom Barnes had been dating since approximately 2007, accompanied her to
Ester Nelson’s house, but he stayed in the car while Barnes visited J. The visit lasted less
than five minutes, and Barnes had no dispute with Ester Nelson.


       C.     December 25, 2009
       On Christmas morning, 2009 Barnes called J. J. asked Barnes to bring him a plate
of food she had cooked. Barnes believed Ester Nelson was monitoring the call, and thus
knew she was coming.
       Later that day, between 4:30 p.m. and 5:00 p.m., Barnes drove to Ester Nelson’s
house to bring J. the plate of food. Griffin again accompanied Barnes, and sat in the
passenger seat of the car. When they arrived, there were no parking spaces adjacent to
the curb, so Barnes parked in the middle of the street in front of Ester Nelson’s house,
and Barnes called Ester Nelson on her cell phone. A young woman’s voice answered,
and then hung up.
       While Griffin remained in the passenger seat of the car listening to music, Barnes
walked up to Ester Nelson’s house and rang the doorbell. When a man opened the door,
Barnes asked if J. was there. The man said he was not, and closed the door. Barnes then
walked to Valencia’s house next door, thinking that J. might be there, playing with
Valencia’s son. Barnes spoke with Valencia on the front steps of her house, and learned
J. was not there.
       At some point, Ester Nelson’s adult son James Nelson (Nelson), who has been
confined to a wheelchair since the age of 14, came down the driveway of his mother’s
house in an electric wheelchair. Nelson approached the passenger side of Barnes’s car,

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where Griffin was still seated. Nelson began cursing at Griffin, accusing him of
disrespecting his mother, and telling him to leave his mother alone. Griffin said he did
not understand what Nelson was talking about, and tried to ignore him. Nelson then went
around behind the car to the driver’s side, opened the door, and spit in Griffin’s face.
Nelson continued to scream and curse at Griffin, and yelled, “I’m gonna fuck you up.”
       Griffin got out of the passenger side door and called to Barnes that it was time to
leave. As Barnes walked back to her car, Nelson approached her in his wheelchair.
Nelson said, “Get the fuck away from here. Y’all leave my mama alone.” When Barnes
asked Nelson what he was talking about, Nelson said he had spit in Griffin’s face and “he
didn’t do shit.” Barnes then spit at Nelson.
       Nelson ran over Barnes’s foot or ankle with his wheelchair, and the two of them
began exchanging punches. According to Barnes, she was trying to defend herself and
get Nelson off her. Barnes’s dress became caught in Nelson’s wheelchair and was torn.
Griffin got out of the car, ran towards Barnes and Nelson, and tried to separate them.
Griffin again yelled at Barnes that it was time to leave, and he immediately went back to
the passenger side of the car. Griffin had opened the passenger door and turned to look
back at Barnes and Nelson, when Nelson removed a gun from “his waistband” or “groin
area” and started firing at him. Griffin got inside the car.
       Ester Nelson came out of her house with another woman and said, “Don’t do that,
James Earl, don’t do that.” But Nelson fired five or six shots while Griffin lay across the
front seat of the car. Barnes, who was standing next to Nelson as he fired, “heard
clicking coming from the gun.”2 Nelson said again, “I’m gonna fuck you up.” Barnes
then got into her car, called 911, and drove Griffin to the hospital.
       Griffin had bullet wounds in his right ankle and heel, his right knee, his right thigh
and his left thigh, all of which he suffered after he had taken cover in the car. He was in


2      Valencia was inside her house and did not see who fired the gunshots. Ester
Nelson, who came outside when she heard the argument, also did not see who fired the
shots.


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the hospital for five or six days, and had surgery to remove a bullet from his knee.
Barnes had an abrasion and swelling on her ankle, and swelling on her face. The rear
passenger window of her car was shot out, and there were bullet holes in the front
passenger seat and under the steering wheel and the emergency brake.
          On January 12, 2010 sheriff’s deputies went to Ester Nelson’s house with an arrest
warrant for Nelson, but he was not there. Although before the shooting Nelson was often
at his mother’s house, he stopped going to her house after the incident. Nelson was
arrested on May 24, 2010 during a traffic stop based on the outstanding warrant for his
arrest.


          D.    The Charges and the Verdict
          The People charged Nelson with attempted murder (Pen. Code, §§ 187, 664),3
assault with a firearm (§ 245, subd. (a)(2)), two counts of battery (§ 242), and two counts
of making a criminal threat (§ 422). The People alleged that Nelson personally used, and
personally and intentionally discharged, a firearm that caused great bodily injury, and that
he personally used a firearm in the commission of a felony or attempted felony.
(§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d).) The People also alleged that
Nelson personally inflicted great bodily injury on a person other than an accomplice
during the commission of a felony or attempted felony. (§ 12022.7, subd. (a).)
          During trial the court granted Nelson’s motion to dismiss the two battery counts.
The court also granted Nelson’s motion to dismiss one of the two counts of making a
criminal threat (as to Griffin) and denied Nelson’s motion to dismiss the other count of
making a criminal threat (as to Barnes).
          The jury found Nelson not guilty of attempted murder, but found him guilty of the
lesser included offense of attempted voluntary manslaughter. The jury also found Nelson
guilty of assault with a firearm, and not guilty on the remaining count of making a



3         Undesignated statutory references are to the Penal Code.

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criminal threat. Finally, the jury found true the firearm and great bodily injury
allegations.


       E.      The Motion for a New Trial and Sentencing
       Nelson filed two motions for a new trial, one prepared by his attorney, filed March
5, 2013, and one he prepared while representing himself, filed December 9, 2013. In the
motion prepared by his attorney, Nelson argued he was entitled to a new trial because the
court erroneously dismissed a juror because of his views on law enforcement, the
prosecutor engaged in misconduct by eliciting testimony that Nelson was on parole, and
the jurors engaged in misconduct by discussing Nelson’s failure to testify. Counsel for
Nelson supported the motion with his declaration, in which he stated, “After the trial had
concluded, I spoke with juror number three and she told me that during the deliberations
the jurors discussed the fact that . . . Nelson did not testify in his own defense. She stated
that during the deliberations the question was raised; ‘I wonder why he [Nelson] didn’t
testify?’ Then there was a brief discussion about reasons why Nelson may not have
testified, and then the jurors moved on to another issue.” Counsel for Nelson also stated
in his declaration, “Juror number three further informed me that the verdict[s] of guilty
on the charge of attempted voluntary manslaughter and assault with a firearm do not
represent her verdict. She informed me that a verdict of not guilty on all counts was an
accurate representation of her verdict.”
       In the motion for a new trial Nelson prepared while representing himself, Nelson
argued that he had received ineffective assistance of counsel, the court erred in denying
his motion for self-representation, and “[t]here was juror misconduct in deliberations
where the jurors discussed [his] failure to testify in his own defense.” Nelson’s motion
for a new trial included a declaration by one of the jurors, who stated, “During jury
deliberations we briefly discussed the fact that [Nelson] did not testify in his own
defense. During deliberations the question was raised; ‘I wonder why he [Nelson] didn’t
testify?’ There was then a very brief discussion and we then moved on to another issue.”
The juror also stated, “The verdict of guilty on the charge of attempted voluntary

                                              6
manslaughter does not represent my verdict; the verdict of not guilty on the charge of
attempted voluntary manslaughter would accurately represent my verdict.”
       At the hearing, the court stated it had read and considered the motion filed by
Nelson and the motion filed by Nelson’s former attorney. The court stated, “On all the
grounds set forth in each of those motions, and I’m doing that to protect your rights so all
those issues are before the appellate court if you think I’m wrong, I’m going to deny the
motion for new trial on each of those grounds.” The court’s minute order made clear the
court was denying both the motion filed by Nelson and the motion filed by Nelson’s
former attorney. The court sentenced Nelson to an aggregate prison term of 18 years.
Nelson appealed.4


                                       DISCUSSION


       Nelson cites to four statements that he argues amount to prejudicial jury
misconduct. They are (1) the statement in trial counsel for Nelson’s declaration that a
juror told him the jury briefly discussed Nelson’s failure to testify; (2) the statement in
trial counsel for Nelson’s declaration that a juror told him that the guilty verdicts did not
represent her verdicts; (3) the statement in the juror’s declaration that the jury briefly
discussed Nelson’s failure to testify; and (4) the statement in the juror’s declaration that
the guilty verdicts did not represent her verdicts.
       Statements (1) and (2) are not admissible because they are hearsay statements by
counsel, which cannot establish juror misconduct. “Hearsay evidence offered in support
of a new trial motion that is based on alleged jury misconduct ordinarily is insufficient to
establish an abuse of discretion in either denying the motion or declining to conduct an




4      Nelson’s notice of appeal was untimely, but this court granted Nelson’s
application for relief from default for failure to file a notice of appeal.


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evidentiary hearing.”5 (People v. Manibusan (2013) 58 Cal.4th 40, 55 (Manibusan); see
People v. Dykes (2009) 46 Cal.4th 731, 810, 811 [because “‘“ a jury verdict may not be
impeached by hearsay,”’” “ordinarily a trial court does not abuse its discretion in
declining to conduct an evidentiary hearing on the issue of juror misconduct when the
evidence proffered in support constitutes hearsay”]; People v. Bryant (2011) 191
Cal.App.4th 1457, 1468 [“a trial court does not abuse its discretion in denying a motion
for new trial based upon juror misconduct when the evidence in support constitutes
unsworn hearsay”]; People v. Villagren (1980) 106 Cal.App.3d 720, 729 [“a jury verdict
may not be impeached by hearsay affidavits”].) Nelson concedes that the declaration of
his trial counsel “does not provide substantial evidence of misconduct because it contains
hearsay statements.”
       Statement (4), that the guilty verdicts did not represent the juror’s verdict, is not
admissible under Evidence Code section 1150 because it describes the juror’s subjective
belief about the verdicts.6 (See Manibusan, supra, 58 Cal.4th at p. 57; People v.
Engstrom (2011) 201 Cal.App.4th 174, 184 [“[a] verdict cannot be impeached simply
because it was mistaken or erroneous”]; see, e.g., People v. Romero (1982) 31 Cal.3d
685, 688-689 [statements in juror declarations that the verdict was inaccurate were
inadmissible because they involved “essentially subjective reasoning on the part of the
jurors”]; People v. Chaney (1988) 202 Cal.App.3d 1109, 1121 [statements in a juror
declaration, “‘I personally believe that defendant is guilty of first degree murder,
and . . . at no time would I agree that the defendant was not guilty,’” were inadmissible


5     Nelson did not ask the trial court to conduct an evidentiary hearing, nor on appeal
does he argue that the trial court should have done so.

6       Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to statements
made, or conduct, conditions, or events occurring, either within or without the jury room,
of such a character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.”

                                              8
under Evidence Code section 1150, subdivision (a), because they disclosed the juror’s
“personal beliefs and mental thought processes”], disapproved on another ground in
People v. Marshall (1996) 13 Cal.4th 799, 825-826; Bossi v. State of California (1981)
119 Cal.App.3d 313, 317-318 [statement in a juror declaration that the jurors were not in
agreement on the questions in the verdict was inadmissible because it was offered “to
show the mental processes of the jurors”].) Evidence Code section 1150 prevents a
juror, like the juror here, “‘“from upsetting a verdict of the whole jury by impugning his
own or his fellow jurors’ mental processes or reasons for assent or dissent.”’” (People v.
Gonzales (2012) 54 Cal.4th 1234, 1281.) As Nelson concedes, “Evidence Code section
1150 does not allow for a description of the mental process [the juror] used to determine
that she did not agree with the guilty verdicts found.”
       Statement (3), that the jurors discussed why Nelson did not testify in his defense,
was admissible, and the People do not dispute that this statement is evidence of juror
misconduct. (See Manibusan, supra, 58 Cal.4th at p. 59 [“[i]nsofar as the [juror]
declaration indicates the jurors discussed defendant’s failure to testify, it is admissible to
establish misconduct”].) This discussion was improper, and it violated the court’s
instruction to the jury, pursuant to CALCRIM No. 355, “Do not consider, for any reason
at all, the fact that the defendant did not testify. Do not discuss that fact during your
deliberations or let it influence your decision in any way.” (See People v. Avila (2009)
46 Cal.4th 680, 726 (Avila) [“‘by violating the trial court’s instruction not to discuss
defendant’s failure to testify, the jury committed misconduct’”].) The People argue,
however, that the jury misconduct evidenced by statement (3) was not prejudicial and did
not justify a new trial.
       “Juror ‘misconduct raises a presumption of prejudice that may be rebutted by
proof that no prejudice actually resulted.’” (People v. Sandoval (2015) 62 Cal.4th 394,
437 (Sandoval); see Manibusan, supra, 58 Cal.4th at p. 59.) The presumption of
prejudice from jury misconduct “‘“may be rebutted . . . by a reviewing court’s
determination, upon examining the entire record, that there is no substantial likelihood
that the complaining party suffered actual harm.”’” (Avila, supra, 46 Cal.4th at p. 726.)

                                               9
The presumption may be rebutted where the misconduct was “a trivial and
inconsequential breach of the trial court’s instruction,” or where a juror’s improper
comments were “brief and isolated.” (Sandoval, at p. 437; see Manibusan, supra, 58
Cal.4th at p. 59 [“‘[e]very lawyer, indeed anyone with common sense, knows
that . . . individual jurors do wonder why a presumably innocent defendant does not
testify,’” and “‘“[t]ransitory comments of wonderment and curiosity” about a defendant’s
failure to testify, although technically misconduct, “are normally innocuous”’”]; People
v. Hord (1993) 15 Cal.App.4th 711, 727 [“[a] passing reference to an inappropriate
matter [has been] held not to be prejudicial”]; see also People v. Lavender (2014) 60
Cal.4th 679, 691 [“[w]hen we talk about jury deliberations, we are talking about the
conduct of human beings who are fallible,” and because it is “‘a rare jury trial in which
there are no mistakes on anyone’s part,’” “‘[t]o demand theoretical perfection from every
juror during the course of a trial is unrealistic’”].) “Whether prejudice arose from juror
misconduct . . . is a mixed question of law and fact subject to an appellate court’s
independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582; accord,
People v. Lewis (2009) 46 Cal.4th 1255, 1309.)
       Here, the presumption of prejudice was rebutted. The juror declaration stated:
“During jury deliberations we briefly discussed the fact that [Nelson] did not testify in his
own defense. During deliberations the question was raised; ‘I wonder why he [Nelson]
didn’t testify?’ There was then a very brief discussion and we then moved on to another
issue.” The juror stated twice that the discussion of Nelson’s failure to testify was brief,
and that the jury then moved on to discuss another issue. (See Manibusan, supra, 58
Cal.4th at p. 59 [“[t]he statement that defendant’s failure to testify ‘came up’ suggests
that any comments about this subject were merely brief and passing observations, and the
record offers no basis for concluding otherwise”]; Avila, supra, 46 Cal.4th at p. 727
[misconduct not prejudicial where the discussion of the defendant’s failure to testify “was
not of any length or significance”]; People v. Leonard (2007) 40 Cal.4th 1370, 1425 [“no
substantial likelihood that defendant was prejudiced by the jury’s brief discussion of his
failure to testify” where “the comments on defendant’s failure to testify mentioned in

                                             10
defendant’s new trial motion merely expressed regret that defendant had not testified,
because such testimony might have assisted the jurors in understanding him better”].)
There is also no evidence that the jurors discussed the matter any further, or that the
jurors used Nelson’s failure to testify as evidence of guilt. (Cf. People v. Hord, supra, 15
Cal.App.4th at p. 728 [a juror’s statement that “‘[t]he defendant didn’t testify so he is
guilty’” would “go beyond mere curiosity and lean more toward a juror’s drawing
inappropriate inferences from areas which are off limits”].) Under these circumstances,
“an independent review of the record shows no substantial likelihood the misconduct
caused actual harm” (Manibusan, at p. 59), and the trial court did not err in denying
Nelson’s motion for a new trial.
       Nelson argues that his “sole defense at trial was self-defense” and that the “case
boiled down to a credibility contest between [him] and . . . Griffin [and] Barnes,” which
“elevate[d the jury] misconduct to very serious status.” The existence of such a
credibility contest, however, did not establish prejudice. A defendant’s version of events
will probably differ from a victim’s version in most cases. If that were the test, juror
misconduct relating to the defendant’s failure to testify would almost always be
prejudicial. In any event, although the jury ultimately did not believe it, Nelson
presented evidence supporting his version of the incident and his theory of self-defense
through the testimony of Ester Nelson and Valencia. Ester Nelson testified that Barnes
came to her house on December 25, 2009 without permission, Barnes and Griffin
attacked Nelson by kicking and hitting him, Griffin hit Nelson’s head so hard he almost
knocked Nelson out of the wheelchair, and Griffin showed Nelson “no mercy.” Ester
Nelson stated that Nelson was unable to defend himself, and she asked Griffin and
Barnes not to hit her son. Ester Nelson testified that, although she did not see who did
the shooting, she saw Griffin run away from the scene.7 Valencia testified that Barnes
“turned into the exorcist” and, with Griffin, beat Nelson “repeatedly.” Valencia stated



7      Ester Nelson also testified that she saw her son earlier that day, helped him get
dressed, and did not see a gun in his possession or anywhere on him.

                                             11
that Griffin hit Nelson so hard Nelson was “lifted up off his wheelchair” and “blood went
everywhere.” Valencia also testified that Nelson did not throw any punches, but “was
just trying to cover up because” Barnes and Griffin were beating him up. Thus, even
though Nelson did not testify, the jury heard the testimony of two witnesses who
supported Nelson’s theory of self-defense.

                                    DISPOSITION

      The judgment is affirmed.




             SEGAL, J.

We concur:




             PERLUSS, P. J.




             ZELON, J.




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