Filed 8/7/13 P. v. McCluney CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062263

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD212842)

JERRY WILLIAM MCCLUNEY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

General, A. Natasha Cortina, Ronald A. Jakob, and Kelly Ann Johnson, Deputy

Attorneys General, for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Defendant Jerry William McCluney appeals from a conviction and sentence after

he obtained a reversal of his convictions on two counts in a prior appeal and the case was

remanded to the trial court for further proceedings. In the prior appeal, McCluney

successfully argued that his convictions for assault with a firearm and possession of

cocaine for sale should be reversed because the trial court failed to conduct a hearing

regarding alleged juror misconduct. On remand, the trial court held a hearing and granted

McCluney's motion to release the jurors' contact information. The trial court

subsequently entertained McCluney's motion for a new trial on the ground of juror

misconduct, and denied the motion. The trial court then reinstated McCluney's

convictions on the two relevant counts.

       In this appeal, McCluney contends that the trial court erred in denying his motion

for new trial. According to McCluney, the People failed to rebut the presumption that the

jury misconduct, which involved a juror referring to the dictionary definition of "intent"

during deliberations, was prejudicial. We conclude that any presumption of prejudice

was sufficiently rebutted in this case. We therefore affirm McCluney's reinstated

convictions.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In April 2008, McCluney thought that his neighbor, Brian Goodin, had taken some

of McCluney's cocaine. McCluney went to Goodin's house, shot him multiple times, and

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beat him with a baseball bat. (People v. McCluney (Nov. 2, 2011, D057015) 2011

Cal.App.Unpub. LEXIS 8368 [nonpub. opn.] (McCluney I).)1

       On January 23, 2009, a jury convicted McCluney of assault with a firearm (Pen.

Code, § 245, subd. (b); count 2)2 and possession of cocaine for sale (Health & Saf. Code,

§ 11351.5; count 4). The jury found true the allegation that in committing the assault in

count 2, McCluney personally inflicted great bodily injury (§ 12022.7, subd. (a)) and

personally used a firearm (§ 12022.5, subd. (a)). The jury was unable to reach a verdict

with respect to count 1, attempted murder, or count 3, assault with a deadly weapon, and

the trial court declared a mistrial as to those counts.

       The People elected to retry McCluney on counts 1 and 3. On June 26, 2009, a

different jury convicted McCluney on count 3, assault with a deadly weapon (§ 245,

subd. (a)(1)), and found true the allegation that he personally used a deadly weapon (a

baseball bat), within the meaning of section 1192.7, subdivision (c)(23), in the

commission of the assault.. The second jury was also unable to reach a verdict on count

1, the attempted murder charge. The court declared a mistrial as to count 1.

       The trial court sentenced McCluney to prison for a term of 21 years four months.

       McCluney appealed from the judgment of conviction and sentence, arguing,

among other things, that the trial court erred in failing to conduct a hearing regarding

1      The People filed an unopposed request for judicial notice of the record in the prior
appeal in this case. We grant the request for judicial notice and refer to the record in the
prior appeal, as well as the unpublished opinion issued by the court, when relevant to this
appeal.

2      Further statutory references are to the Penal Code unless otherwise indicated.
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alleged juror misconduct at the first trial, at which he was convicted on counts 2 and 4.

This court agreed with McCluney that the trial court should have held a hearing regarding

the alleged juror misconduct, vacated McCluney's convictions on counts 2 and 4, and

remanded the case to the trial court for it to hold a hearing on McCluney's motions to

disclose the contact information for the members of the first jury.

       On remand, the trial court held a hearing pursuant to Code of Civil Procedure

section 237 and granted McCluney's motion to release the jurors' contact information.

Approximately six weeks later, McCluney moved for a new a trial on the basis of juror

misconduct.

       On July 6, 2012, the trial court held a hearing on McCluney's motion for a new

trial. The court denied the motion and reinstated McCluney's convictions on counts 2 and

4. That same day, McCluney filed a notice of appeal.

                                              III.

                                        DISCUSSION

       McCluney contends that a juror's misconduct in looking up a dictionary definition

of "intent" during deliberations in McCluney's first trial created juror bias. He argues that

the trial court erred in denying his new trial motion because, he maintains, the

prosecution failed to rebut the presumption of prejudice from juror bias with respect to

this incident. We disagree.

A.     Additional background

       After the jury in the second trial reached its verdict, McCluney requested that the

court release contact information for the jurors in the first trial, or set a hearing pursuant

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to Code of Civil Procedure section 237. McCluney's request was based on evidence

discovered by a defense investigator that suggested there may have been juror

misconduct during deliberations in the first trial. The investigator said that he had spoken

with a juror from the first trial who told the investigator that " 'another juror had looked

up "intent" in a dictionary but did not comment on the meaning of the word.' " This juror

told the investigator that " '[t]his occurred after the decision on the lesser counts and prior

to the jury hanging on the remaining count(s).' " (McCluney I, supra, at *26.) The trial

court denied the motion. (Ibid.)

       On appeal, this court concluded that the trial court had abused its discretion in not

conducting a hearing regarding the alleged juror misconduct. (McCluney I, supra,

D057015.) We vacated McCluney's convictions on counts 2 and 4 and remanded the

case to the trial court for a hearing pursuant to Code of Civil Procedure section 237.

(McCluney I, supra, at *33.)

       On remand, the trial court held a hearing and granted McCluney's request to

release the jurors' contact information. McCluney subsequently moved for a new trial,

arguing that there had been prejudicial juror misconduct in his first trial.

       At a hearing on the motion for a new trial, the court heard testimony from Juror

No. 8. Juror No. 8 remembered a discussion in the jury room during deliberations in

McCluney's first trial concerning a dictionary. According to Juror No. 8, the jurors had

been "going around and around about intent" when one of the other jurors said, " 'The

dictionary says—.' " Before that juror said anything more, the other jurors stopped him

and told him that he could not discuss what he had read in the dictionary. Juror No. 8

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said that at the point that the juror in question had mentioned the dictionary, the jury had

"already reached a verdict" on the counts on which the jury ultimately was able to reach a

verdict (counts 2 and 4). Juror No. 8 could not recall whether anyone had actually

brought a dictionary into the jury room. Juror No. 8 did remember, however, that the

other jurors immediately told the juror who mentioned the dictionary that they were not

permitted to " 'look at anything else' " and that the juror should not reveal anything else

concerning what the dictionary said about "intent."

       The trial court concluded that although McCluney had established juror

misconduct, the People had rebutted any presumption of prejudice resulting from that

misconduct. In reaching this conclusion, the court determined that the juror who had

consulted the dictionary had not shared with the other jurors any definition that he had

found. The court was also satisfied that no dictionary had been taken into the jury room.

B.     Legal standards

       "The trial court is vested with broad discretion to act upon a motion for new trial.

[Citation.] When the motion is based upon juror misconduct, the reviewing court should

accept the trial court's factual findings and credibility determinations if they are

supported by substantial evidence, but must exercise its independent judgment to

determine whether any misconduct was prejudicial. [Citations.]" (People v. Dykes

(2009) 46 Cal.4th 731, 809.)

       Use of a dictionary by a juror constitutes misconduct. (People v. Karis (1988) 46

Cal.3d 612, 642 (Karis).) "Jurors are not allowed to obtain information from outside



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sources either as to factual matters or for guidance on the law." (Ibid.; see also People v.

Barton (1995) 37 Cal.App.4th 709, 715.)

        Juror misconduct involving the receipt of extraneous information that was not part

of the evidence received at trial creates a presumption that the defendant was prejudiced

by the evidence and may establish juror bias. (People v. Nesler (1997) 16 Cal.4th 561,

578 (Nesler).) This is because "[d]ue process means a jury capable and willing to decide

the case solely on the evidence before it . . . ." (Smith v. Phillips (1982) 455 U.S. 209,

217.)

        Because juror misconduct gives rise to a presumption of prejudice, the prosecution

must rebut the presumption by demonstrating that "there is no substantial likelihood that

any juror was improperly influenced to the defendant's detriment." (People v. Clair

(1992) 2 Cal.4th 629, 668 (Clair); see also People v. Hardy (1992) 2 Cal.4th 86, 174

["The presumption of prejudice may be rebutted, inter alia, by a reviewing court's

determination, upon examining the entire record, that there is no substantial likelihood

that the complaining party suffered actual harm"].)

        "We assess prejudice by a review of the entire record. 'The verdict will be set

aside only if there appears a substantial likelihood of juror bias. Such bias can appear in

two different ways. First, we will find bias if the extraneous material, judged objectively,

is inherently and substantially likely to have influenced the juror. [Citations.] Second,

we look to the nature of the misconduct and the surrounding circumstances to determine

whether it is substantially likely the juror was actually biased against the defendant.



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[Citation.] The judgment must be set aside if the court finds prejudice under either test.'

[Citation.]" (People v. Tafoya (2007) 42 Cal.4th. 147, 192.)

       "The first of these tests is analogous to the general standard for harmless error

analysis under California law." (In re Carpenter (1995) 9 Cal.4th 634, 653.) " 'Under

this standard, a finding of "inherently" likely bias is required when, but only when, the

extraneous information was so prejudicial in context that its erroneous introduction in the

trial itself would have warranted reversal of the judgment. Application of this "inherent

prejudice" test obviously depends upon a review of the trial record to determine the

prejudicial effect of the extraneous information.' [Citation.]" (People v. Danks (2004) 32

Cal.4th 269, 303.)

       " '[E]ven if the extraneous information was not so prejudicial, in and of itself, as to

cause "inherent" bias under the first test,' the nature of the misconduct and the 'totality of

the circumstances surrounding the misconduct must still be examined to determine

objectively whether a substantial likelihood of actual bias nonetheless arose.' [Citation.]

'Under this second, or "circumstantial" test, the trial record is not a dispositive

consideration, but neither is it irrelevant. All pertinent portions of the entire record,

including the trial record, must be considered. . . .' [Citation.]" (Danks, supra, 32 Cal.4th

at p. 303.)

C.     Analysis

       The People concede that the juror's conduct in referring to a dictionary constitutes

misconduct. (See Karis, supra, 46 Cal.3d at p. 642.) However, the People contend that

the trial court correctly determined that any presumption of prejudice from this

                                               8
misconduct was rebutted because the juror's misconduct related only to the attempted

murder charge against McCluney, and the jury did not convict him of that charge.

       Because the juror's conduct raises a rebuttable presumption of prejudice, the

prosecution had the burden to rebut the presumption by demonstrating that "there is no

substantial likelihood that any juror was improperly influenced to the defendant's

detriment." (Clair, supra, 2 Cal.4th at p. 668.)

       With respect to the first test for determining whether there appears to be a

substantial likelihood of juror bias, that test requires that the extraneous information to

which the jury was exposed be examined in context. (Danks, supra, 32 Cal.4th at p.

303.) Here, the trial court found that, at most, a single juror was exposed to the

extraneous material. This finding is supported by substantial evidence. That extraneous

material—i.e., a dictionary definition of "intent"—was not inherently or substantially

likely to have influenced that juror's verdicts on counts 2 and 4—the only counts on

which McCluney was convicted by that jury. According to Juror No. 8, by the time

another juror mentioned the dictionary definition of "intent," the jury had already reached

its verdicts on counts 2 and 4, and jurors were discussing only whether McCluney had the

requisite specific intent to be convicted of the attempted murder charge. The jury was

ultimately unable to reach a verdict on the attempted murder charge. Given that all

members of the jury had already agreed that McCluney was guilty of counts 2 and 4, both

of which charged general intent crimes, the fact that a single juror may have looked at a

dictionary definition of the word "intent" was not inherently and substantially likely to

have influenced the jury's verdicts on counts 2 and 4.

                                              9
       Our inquiry does not end with our conclusion that, judged objectively, a juror's

reference to the dictionary definition of "intent" was not inherently and substantially

likely to have influenced the verdict. We must also " 'look to the nature of the

misconduct and the surrounding circumstances to determine whether it is substantially

likely [that any particular] juror was actually biased against the defendant. . . .'

[Citation.]" (Tafoya, supra, 42 Cal.4th at p. 192, italics added.) Our review of the record

leads us to the conclusion that it is not substantially likely that the juror who obtained an

extraneous dictionary definition of "intent" was actually biased against McCluney. The

juror did not bring up this information to the other jurors in a manner that indicated a

desire to use the information against McCluney. Rather, it appears that this juror was

simply involved in a misguided effort to determine whether McCluney entertained the

required mental state to be convicted on the attempted murder charge.

       The fact that the jury found McCluney guilty only on counts 2 and 4, and did not

reach verdicts on counts 1 and 3, also indicates that it is not substantially likely that any

juror was actually biased against McCluney. As was made clear in McCluney I, supra,

D057015, McCluney testified at trial and essentially admitted to having engaged in the

conduct underlying his convictions on counts 2 and 4. The fact that the jury in the first

trial convicted McCluney of only those two charges, and did not convict him on the

remaining counts, demonstrates that the jury deliberated without actual bias against

McCluney.

       Because "there is no substantial likelihood that any juror was improperly

influenced to the defendant's detriment" (Clair, supra, 2 Cal.4th at p. 668), there is no

                                              10
basis for reversing McCluney's convictions on counts 2 and 4 on the ground of juror

misconduct.

                                          IV.

                                    DISPOSITION

      The judgment is affirmed.



                                                                             AARON, J.

WE CONCUR:



              NARES, Acting P. J.



                     HALLER, J.




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