Filed 3/23/16 P. v. Lopez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069645

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF10002071)

DAVID ISAAC LOPEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Richard A.

Erwood, Judge. Affirmed.



         Richard de la Sota, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted David Lopez of second degree murder. After the verdict, Lopez

moved for a new trial, alleging juror misconduct during deliberations. Lopez appeals the

trial court's denial of his new trial motion, arguing the court erred in declining to hold an

evidentiary hearing. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On December 8, 2014, a jury convicted Lopez of second degree murder for

shooting and killing Matthew Roberts during a failed gun transaction. (Pen. Code,

§ 187.)1 The jury found true the allegation Lopez had discharged a firearm causing death

to a person other than an accomplice. (§ 12022.53, subd. (d).) At trial, the jury heard

testimony from a witness to events before, during, and after the murder. Police recovered

a buried gun determined to have discharged the bullet found near Roberts' body; a

magazine recovered with the gun contained Lopez's DNA.

       Following the verdict, Lopez filed a motion for a new trial, alleging juror

misconduct during deliberations. The motion contained no sworn affidavits but attached

a report by a private investigator. The report indicated that between December 4 and 8,

2014, while deliberations were taking place, Juror 12's wife (F.H.) communicated

through text and social media messages with her cousin (E.S.), while E.S. was with

Lopez's girlfriend, C.Z. The report included statements allegedly made by E.S., F.H., and

Juror 12 to the investigator after the verdict.




1      Further statutory references are to the Penal Code, unless otherwise specified.
                                                  2
       The People opposed Lopez's new trial motion, arguing the investigator's report

contained multiple levels of hearsay and did not satisfy Lopez's threshold burden to show

a "strong possibility" of prejudicial juror misconduct to warrant an evidentiary hearing.

The People argued Lopez's motion was based on alleged communications between E.S.

and F.H., two nonjurors, which at most suggested Juror 12 told his wife about the case,

not that there was a strong possibility of prejudicial juror misconduct.

       In reply, Lopez argued obtaining sworn declarations from F.H. and E.S. was not

feasible and that concerns about hearsay could be addressed at an evidentiary hearing.

Lopez argued statements in the investigator's report provided powerful circumstantial

evidence of prejudicial juror misconduct. Attached to Lopez's reply brief was an

undated, electronically signed declaration by the private investigator repeating the

statements allegedly made by E.S., F.H., and Juror 12 to the investigator. Among other

things, the declaration stated E.S. told the investigator that F.H. told E.S. during

deliberations that Lopez should be convicted because he was "a tweaker and gang

involved."2

       The trial court denied Lopez's new trial motion. The court found that statements

attributed to E.S., even if assumed to be true, were inconsistent and lacked credibility.

Finding it significant that Juror 12's name never came up during E.S. and F.H.'s purported

exchange, the court held Lopez failed to overcome his threshold burden to warrant an

evidentiary hearing. As to F.H.'s alleged statement to E.S. that Lopez was a "tweaker and


2      To avoid repetition, we include relevant facts from the investigator's declaration in
the discussion section.
                                              3
gang involved," the court found that anyone walking into the courtroom could have

concluded the murder was the result of a drug transaction gone poorly, given evidence at

trial that Lopez demanded drugs and money from Roberts in exchange for the gun.

       The court also denied Lopez's request to reduce the verdict to voluntary

manslaughter, finding sufficient credible evidence to support the verdict. The court

sentenced Lopez to a consecutive term of 15 years in state prison for the second degree

murder conviction (§ 187), 25 years to life for the sentencing enhancement (§ 12022.53),

and two years for prior convictions (§ 667.5, subd. (b)). Lopez appealed.

                                      DISCUSSION

       Lopez raises one issue on appeal. He argues the trial court committed reversible

error by denying Lopez's new trial motion without holding an evidentiary hearing. As we

explain, Lopez failed to meet his threshold burden to show a "strong possibility" of

prejudicial juror misconduct, and the trial court did not abuse its discretion in denying an

evidentiary hearing.

                                      I. Background

       Lopez's new trial motion rested on a string of alleged communications between

Juror 12's wife, F.H., and her cousin, E.S. Lopez submitted a report and declaration from

a defense investigator, who spoke to E.S., F.H., and Juror 12 after the verdict. E.S., F.H.,

and Juror 12 did not submit declarations or affidavits of their own. The investigator's

declaration described the investigator's alleged communications with E.S., F.H., and

Juror 12 as follows.



                                             4
       E.S. told the investigator that when deliberations began on December 4, 2014, she

posted a message on social media stating she was waiting in the courtroom with her

cousin for the jury to finish deliberations. F.H. replied to the message and asked which

cousin E.S. was referring to; E.S. stated she was with C.Z., who is Lopez's girlfriend.

(C.Z. is E.S.'s cousin, but F.H. and C.Z. are not related.) F.H. asked if they were waiting

for the Lopez verdict. E.S. said she was, and F.H. replied that she and a friend were

jurors on the case. F.H. said: "Between you and I, I think he is guilty because he is a

tweaker and gang involved."3 E.S. replied that Lopez was innocent and guilty would be

the wrong verdict. F.H. told E.S. there were three jurors who believed Lopez was not

guilty who kept asking for more papers, and this was why it was taking so long to reach a

verdict. E.S. told F.H. she should decide based on the evidence, not based on her

personal beliefs.

       The investigator called F.H. to ask about her participation as a juror in the Lopez

trial. F.H. told the investigator her husband was a juror in that case and gave him Juror

12's contact information.

       The investigator asked E.S. if F.H. might have told her she knew a juror on that

case. E.S. said F.H. may have said that, but she recalled F.H. saying both she and a

friend were jurors. The investigator asked for the name of F.H.'s husband and asked if

F.H. had mentioned Juror 12 knowing anything about the Lopez trial. E.S. said Juror 12's

name "didn't come up at all." E.S. then recalled that F.H. did say her friend was a juror



3      The briefs define a "tweaker" as a heavy methamphetamine user.
                                             5
on the Lopez case and that the friend told F.H. three jurors thought Lopez was not guilty.

E.S. said F.H.'s friend "was a girl for sure" and may have been a neighbor.

       The investigator then spoke to Juror 12, who confirmed being a juror. Juror 12

stated he did not feel pressured to reach a verdict and felt there was enough time to

review the evidence. While a couple of jurors wanted to convict Lopez of the greater

charge of first degree murder, Juror 12 said no juror thought Lopez was not guilty, and

manslaughter was not a consideration. Juror 12 did not discuss the case with another

juror during trial. The investigator asked if he discussed the case with anyone during

deliberations, and Juror 12 replied: "Don't know why, I talked to my wife after the trial."

The investigator asked if Juror 12 would be surprised if his wife had spoken about jury

deliberations. He laughed "nervously" and stated, "Wife wouldn't have a reason to. I

wasn't talking about it."

       The investigator then spoke to F.H. F.H. stated she learned that E.S. knew

someone connected to Lopez through E.S.'s social media post. When asked, F.H.

"quickly and adamantly" denied having told E.S. that three jurors thought Lopez was not

guilty. She stated she had not told her husband she spoke with E.S. about the trial or

Lopez. F.H. said E.S. told her that it was the prosecution's witness who shot the victim,

not Lopez. Although she denied telling E.S. anything, F.H. would not allow the

investigator to see messages on her phone, stating she did not want to get into trouble and

did not want her husband to get in trouble. F.H. conceded she may have told E.S. that the

people involved were a bunch of drug addicts. When the investigator asked how she



                                             6
would have known this, she paused and replied it was an assumption because "the valley

is full of drug addicts."

       The investigator served F.H. and E.S. with subpoenas. The following day, F.H.

allegedly texted E.S. and asked if she had told anyone F.H. knew a juror on the Lopez

case. F.H. asked why the case came up "out of the blue." She told E.S. it was "fucked up

whatever you're doing" and stated she would delete her from social media to avoid

having "drama in her life." E.S. sent a text message to the investigator two days later,

stating C.Z. was harassing her and helping with the investigation was "not worth it." F.H.

and E.S. did not appear in court to testify at the hearing on Lopez's new trial motion.

                                    II. Legal Principles

       A criminal defendant has a constitutional right to a trial by an impartial jury.

(U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 16.) An impartial jury is one in

which no juror has been improperly influenced, and every juror is capable and willing to

decide the case based solely on the evidence presented at trial. (People v. Hensley (2014)

59 Cal.4th 788, 824 (Hensley); People v. Cissna (2010) 182 Cal.App.4th 1105, 1110

(Cissna).) Pursuant to section 1181, subdivision (3), a court may grant a new trial in a

criminal case where the jury has "been guilty of any misconduct by which a fair and due

consideration of the case has been prevented."

       In evaluating a juror misconduct claim, the trial court must determine first whether

prejudicial juror misconduct occurred. (Hensley, supra, 59 Cal.4th at p. 824.) "A juror's

receipt or discussion of evidence not submitted at trial constitutes misconduct" and

"raises a rebuttable presumption of prejudice." (People v. Dykes (2009) 46 Cal.4th 731,

                                              7
809 (Dykes); see People v. Nesler (1997) 16 Cal.4th 561, 578-579.) The rebuttable

presumption serves as an evidentiary aid to the defendant, given the statutory bar of

evidence concerning a juror's subjective reasoning process. (Cissna, supra,

182 Cal.App.4th at p. 1116; In re Carpenter (1995) 9 Cal.4th 634, 652 (Carpenter);

Evid. Code, § 1150, subd. (a).) To rebut the presumption, the prosecution must

demonstrate there is no substantial likelihood that one or more jurors were biased by the

misconduct. (Hensley, at p. 824; Carpenter, at p. 653.) If there is a substantial likelihood

a juror was biased, the court must set aside the verdict. (Hensley, at p. 824.) "Regardless

of how weighty the evidence may be, a defendant is entitled to 12, not 11, impartial

jurors." (Ibid.)

       The trial court has broad discretion in acting upon a defendant's new trial motion.

(Dykes, supra, 46 Cal.4th at p. 809.) A defendant seeking a new trial for alleged juror

misconduct must meet his or her threshold burden to present "competent evidence"

supporting the claim. (Ibid.) "[I]t is within the discretion of a trial court to conduct an

evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and

to permit the parties to call jurors to testify at such a hearing. This does not mean,

however, that a trial court must hold an evidentiary hearing in every instance of alleged

jury misconduct. The hearing should not be used as a 'fishing expedition' to search for

possible misconduct," and "the defendant is not entitled to such a hearing as a matter of

right." (People v. Hedgecock (1990) 51 Cal.3d 395, 415, 419.) An evidentiary hearing

" ' "should be held only when the defense has come forward with evidence demonstrating

a strong possibility that prejudicial misconduct has occurred." ' " (Dykes, at pp. 809-810,

                                              8
italics added.) " ' "Even upon such a showing, an evidentiary hearing will generally be

unnecessary unless the parties" evidence presents a material conflict that can only be

resolved at such a hearing.' " (Ibid.; see People v. Avila (2006) 38 Cal.4th 491, 604

(Avila).)

       "A trial court's ruling on a motion for a new trial is so completely within that

court's discretion that a reviewing court will not disturb the ruling absent a manifest and

unmistakable abuse of that discretion." (People v. Hayes (1999) 21 Cal.4th 1211, 1260-

1261 (Hayes).) On appeal, Lopez bears the burden to show the trial court abused its

discretion by failing to conduct an evidentiary hearing on the issue of juror misconduct.

(Dykes, supra, 46 Cal.4th at p. 809; Avila, supra, 38 Cal.4th at p. 604.) We accept the

trial court's factual findings and credibility determinations if they are supported by

substantial evidence but exercise independent judgment to determine whether any

misconduct was prejudicial. (Dykes, at p. 809.)

                                        III. Analysis

       The only evidence Lopez offered in support of his new trial motion was a report

and declaration by a defense investigator describing his alleged communications with

Juror 12, F.H., and E.S. Juror 12, F.H., and E.S. did not submit declarations or affidavits

of their own. The investigator's unsworn report is not "competent evidence" of alleged

juror misconduct. (Dykes, supra, 46 Cal.4th at p. 809.) The investigator's declaration is

also defective because it is undated. (Avila, supra, 38 Cal.4th at p. 605.)

       These deficiencies aside, the investigator's declaration merely relays hearsay

statements allegedly made by E.S., F.H., and Juror 12 to the investigator. Such

                                              9
statements do not constitute "competent evidence" of juror misconduct. (Hayes, supra,

21 Cal.4th at p. 1252 [" 'Normally, hearsay is not sufficient to trigger the court's duty to

make further inquiries into a claim of juror misconduct.' "]; Dykes, supra, 46 Cal.4th

at p. 810 ["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. Manibusan (2013) 58 Cal.4th 40, 55 ["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 evidentiary hearing."].) Many of the statements

consisted of double and triple hearsay, with E.S. telling the investigator what F.H. had

told her, sometimes based on information F.H. purportedly learned from a friend on the

jury. Because Lopez's new trial motion was based solely on hearsay evidence, the trial

court did not abuse its discretion in declining to conduct an evidentiary hearing. (Avila,

supra, 38 Cal.4th at p. 605 [no abuse of discretion in declining to hold an evidentiary

hearing where defense declarations "consisted of double hearsay"].)

       Lopez argues any concerns regarding hearsay could be eliminated by calling

witnesses to testify at an evidentiary hearing. However, requiring testimony on the basis

of unsworn hearsay statements "is tantamount to the type of 'fishing expedition'

condemned [by our Supreme Court]. Either a juror is willing to come forward and, at

least on a preliminary basis, sign an affidavit or not. Unless the reticence results from

impermissible interference by the court or prosecutor, the reasons therefor should not be



                                              10
subject to further inquiry." (People v. Cox (1991) 53 Cal.3d 618, 699 (Cox), disapproved

on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.)

       Even if we were to assume the statements in the investigator's declaration were

true, they would not meet Lopez's burden of demonstrating a " ' "strong possibility that

prejudicial misconduct has occurred," ' " as required to warrant an evidentiary hearing.

(Dykes, supra, 46 Cal.4th at p. 809.) Assuming the truth of all hearsay statements

proffered, the most that can be inferred is that Juror 12 spoke to F.H. about the case and

told her who the defendant was. The statements do not support a "strong possibility" of

prejudicial juror misconduct, and it was not an abuse of discretion for the trial court to

decline to hold an evidentiary hearing. (Ibid.)

       For example, E.S. claimed F.H. told her three jurors believed Lopez was not

guilty. However, there is no evidence to suggest Juror 12 made any such statement to

F.H. Indeed, the investigator's declaration suggests otherwise: Juror 12 stated no juror

believed Lopez was not guilty, while E.S. stated Juror 12's name never came up and that

F.H.'s friend on the jury "was a girl for sure." Moreover, F.H. denied ever having told

E.S. three jurors thought Lopez was not guilty. E.S. also claimed F.H. told her Lopez

should be convicted because he was a "tweaker and gang involved." F.H. admitted

telling E.S. Lopez was a drug addict based on her assumption that "the valley is full of

drug addicts." However, there is no indication F.H. and Juror 12 spoke about Lopez

being a "tweaker and gang involved." Moreover, the trial court concluded that any




                                             11
person walking into the courtroom could have made the same assumption based on

evidence presented at trial.4

       None of the proffered statements implicates Juror 12. Lopez concedes as much,

arguing only that "Juror No. 12 may very well have gone home and talked over this

difficult decision with his wife" and that F.H. "may have been relying on statements that

her husband, the juror, made to her about the jury's deliberations." Evidence that F.H.

and E.S., two nonjurors, communicated about the case does not suggest a strong

possibility of prejudicial juror misconduct. (See Hayes, supra, 21 Cal.4th at p. 1259

[testimony of two nonjurors who allegedly spoke to a juror "would have been irrelevant

to any issue at a hearing on juror misconduct"].) Nor is there any basis to conclude Juror

12 failed to base his decision solely on the evidence presented on trial based on

statements he may have made to a nonjuror. (See Carpenter, supra, 9 Cal.4th at p. 656

["The juror also told nonjurors both what she knew and that she knew it was

forbidden. . . . But it does not follow that she thereby failed to base her verdict solely on

the evidence. Telling nonjurors what she knew could not itself have prejudiced

defendant."]; Cox, supra, 53 Cal.3d at p. 698 ["no basis for concluding the jury actually

considered evidence not received at defendant's trial"]; cf. People v. Nesler, supra,



4       Lopez makes inconsistent arguments as to the import of this statement. He claims
F.H. could only have learned about Lopez's alleged drug use and gang affiliation from
conversations with Juror 12. He also claims such evidence was not presented at trial,
implying Juror 12 relied on outside evidence to reach his verdict. Under either theory,
there is no evidence linking Juror 12 to F.H.'s statement about Lopez's alleged drug use
and gang affiliation. Further, to the extent the statement is offered as proof of Juror 12's
subjective reasoning process, it is inadmissible. (Evid. Code, § 1150, subd. (a).)
                                             12
16 Cal.4th at pp. 583-589 [juror committed prejudicial misconduct, necessitating a new

trial on the issue of sanity, when she disclosed outside evidence regarding defendant's

drug use to other jurors during deliberations].) Thus, aside from the hearsay problem,

Lopez did not meet his threshold burden of showing a strong possibility of juror

misconduct. The trial court did not abuse its discretion when it denied Lopez's new trial

motion without holding an evidentiary hearing.5




5       Lopez argues the trial court improperly made credibility determinations based on
statements contained in the defense investigator's declaration. Somewhat inconsistently,
he also argues the trial court failed to adequately consider evidence corroborating E.S.'s
statements and casting doubt on F.H.'s credibility. Assuming all hearsay statements in
the investigator's declaration to be true, there is substantial evidence to support the trial
court's finding that E.S.'s statements lacked credibility. E.S. claimed F.H. told her that
F.H. and a friend were jurors; she later said F.H. may have said she knew someone on
the jury. E.S. claimed F.H. told her three jurors believed Lopez was not guilty; F.H.
denied making that statement, and Juror 12 claimed no juror believed Lopez was not
guilty. E.S. claimed F.H. had a female friend on the jury and denied Juror 12's name
came up at all; F.H. mentioned knowing only her husband, Juror 12, on the jury. In any
event, the trial court credited neither E.S. nor F.H., stating their alleged communications
were "rumors and speculation" on social media that had "no credibility with the court
whatsoever." Because Lopez failed to present competent evidence supporting a strong
possibility of prejudicial misconduct, the trial court did not abuse its discretion in
declining to hold an evidentiary hearing.
                                             13
                                  DISPOSITION

      The judgment is affirmed.

                                                HUFFMAN, J.

WE CONCUR:



BENKE, Acting P.J.



AARON, J.




                                      14
