Filed 3/22/16 P. v. Archuleta CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                        H040641
                                                                  (Santa Cruz County
         Plaintiff and Respondent,                                 Super. Ct. No. F24813)

         v.

DAVID CLAIR ARCHULETA,

         Defendant and Appellant.


         A maintenance truck was stolen from DeLaveaga Golf Course (DeLaveaga) in
Santa Cruz on the night of May 9, 2013. At approximately 4:00 a.m. the following
morning, three men used the truck during a burglary and attempted burglary. The truck
was found abandoned and on fire an hour later. Between 5:00 and 6:15 a.m., a debit card
stolen during the burglary was used to make an ATM withdrawal, purchase money orders
at a convenience store, and purchase gift cards at two Safeway stores. The Safeway
transactions were captured on surveillance video, as were the burglary and attempted
burglary. Police arrested three men in connection with the crimes: Adam Jones, Robert
Bombaci, and defendant David Clair Archuleta.
         Following a four-day trial, a jury convicted Archuleta of unlawful taking of a
vehicle (Veh. Code, § 10851); attempted second degree commercial burglary (Pen. Code,
§§ 664, 459); second degree commercial burglary (id., § 459); grand theft by use of an
access card (id., § 484g); and arson (id., § 451). On appeal, Archuleta contends there was
insufficient evidence to convict him of arson. He also asserts an ineffective assistance of
counsel claim, an evidentiary challenge, and maintains the trial court erred by not holding
a full evidentiary hearing on his posttrial claim of juror misconduct. We affirm.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     Break-ins at the DeLaveaga Maintenance Facility
       DeLaveaga is located in a park in Santa Cruz and is maintained by employees of
the Santa Cruz Parks Department. The DeLaveaga maintenance building contains an
office and four bays, where equipment is stored. Maintenance vehicles are stored in a
fenced-in area located just outside the maintenance building. (The area is fenced on three
sides; the maintenance building encloses it on the fourth side.) A gate in the fence is
padlocked at night.
       On April 29, 2013, DeLaveaga maintenance employees arrived at work to find the
employee lockers and the bathroom window in the maintenance building open. The
bathroom window screen was off. The key to one maintenance vehicle, a Ford Ranger
truck, was missing, as was a key ring with a number of keys, including a key to the
padlock used to secure the gate.
       On the morning of May 10, 2013, DeLaveaga maintenance employees noticed that
the gate was open and the Ford Ranger truck was missing. The padlock that usually
secured the gate was intact.
       The Ford Ranger, a white pickup truck, said “DeLaveaga Golf Course” on the
tailgate. It was in working order prior to being stolen.
       A Santa Cruz police officer identified and photographed a shoe print located near
the location where the Ford Ranger truck had been parked. An expert in shoe print
analysis testified that the shoe print was left by a DC brand shoe. At the time of his arrest
on May 22, 2013, Archuleta was wearing black DC brand shoes with white soles.
       B.     Vehicles Observed Near DeLaveaga on the Night of May 9, 2013
       Timothy Loustalot lives down the road from DeLaveaga. At about 10:00 or
10:30 p.m. on May 9, 2013, he saw two vehicles parked in a turnout across the street
                                             2
from his house. He testified that one vehicle was a light-colored, late model SUV. The
other was a burgundy pickup truck. Loustalot observed a police officer drive up,
illuminate the vehicles with a spotlight, and communicate with the drivers.
       Santa Cruz Police Officer Ian Burnham testified that he was patrolling the area
near DeLaveaga on the night of May 9, 2013. At about 9:45 or 10:00 p.m., on his way
towards DeLaveaga, he saw two vehicles pulled off to the side of the road with three men
next to them. Burnham stopped to contact the men. He observed that one vehicle was a
white Ford F-150 pickup truck. (Officers later discovered that a white Ford F-150 was
registered to Michelle Mathieu, Archuleta’s wife.) The other vehicle was a two-tone,
“Blazer-type SUV.” The lower section of the SUV was dark green or dark red. (Jones
drives a burgundy Dodge Ram Charger, which has a four-by-four shape.) One of the
men approached the patrol car and said he was picking up a friend whose truck had run
out of gas. Burnham identified the man he spoke with as Jones. Burnham left and
patrolled in the park. He returned about 30 minutes later and saw the men filling up the
tank of the Ford F-150 with a large gas can.
       Loustalot also saw the men put gas into the light-colored vehicle using a large
canister. He testified that after the police officer contacted the men but before they filled
up the light-colored vehicle, a small white pickup truck drove away from DeLaveaga.
       C.     Burglary and Attempted Burglary
       Pearce European (Pearce), an auto repair shop, and a Hertz rental car location are
located next door to one another in the same building in Capitola. Pearce co-owner,
Chris Immel, received a call from the alarm company at about 4:00 a.m. on May 10,
2013, telling him the alarm at the auto repair shop had been activated. Thinking it might
be a false alarm, Immel drove to the shop. When he arrived, he saw the front window
had been smashed and called the sheriff. Santa Cruz County Deputy Sheriff Dominic
Bitonti responded to Immel’s call at 4:28 a.m.


                                               3
       A cashbox containing an ATM card and a safe containing approximately $800 in
petty cash and the PIN number to the ATM card were missing from Pearce. Pearce
surveillance footage shows a truck backing into a parking place in front of the building.
The letters “DeLav” are visible on the back of the truck. Someone wearing a black
sweatshirt with the hood up and black shoes with white soles can be seen exiting the
truck. Later, two other individuals are seen.
       A number of unauthorized charges were made to the Pearce ATM card between
5:00 and 6:15 a.m. on May 10, 2013. Those charges included a $600 ATM withdrawal,
two charges at DJ’s Minimart for $468.29 and $401.50, a $605.95 charge at a Safeway
located on Morrissey, and three charges at a Safeway located on 41st Avenue for
$201.79, $201.79, and $204.60.
       Hertz surveillance videos show a vehicle backing into a parking place in front of
the building at 3:52 a.m. on May 10. An individual can be seen standing at a Hertz
window for some time. After viewing the video, the Hertz manager noticed that the
window was damaged and looked as if someone had tried to pry it open. A total of three
individuals are visible in the Hertz footage.
       D.     Vehicle Fire
       At approximately 4:55 a.m. on May 10, 2013, the Santa Cruz County Sheriff’s
Office received a call reporting that a vehicle was on fire on Carbonera Drive.
       Deputy Sheriff Bitonti went to the scene of the vehicle fire after reviewing
surveillance video at Pearce. Bitonti testified that the burned vehicle was the vehicle
shown in the Pearce surveillance video just prior to the burglary. He recognized the truck
because, like the one in the video, it had the letters “DeLa” on the back. Officers
confirmed that the burned truck was the vehicle stolen from DeLaveaga based on the
vehicle license plate.
       Santa Cruz Police Department Detective Paul Deocampo reviewed surveillance
video from a residence located near the scene of the vehicle fire. He testified that the
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video showed a white Ford Ranger truck, like the one stolen from DeLaveaga, drive by at
approximately 4:41 a.m. on May 10, 2013. The white Ford Ranger truck was followed
by a white Ford F-150. In the video, the vehicles can be seen turning onto Carbonera
Drive.
         Deocampo testified that he had witnessed between 25 and 30 vehicle fires as a
police officer, none of which resulted in the level of damage he observed in the
DeLaveaga truck. The damage to the truck was focused in the main cab area. The
steering wheel, visors, and rearview mirror had been completely incinerated. Anything
flammable in the cab had been destroyed. Even the interior paint had been burned off.
Accordingly, Deocampo opined that the fire had been extremely hot.
         Deocampo testified that, before becoming a police officer, he worked in the
automotive business for 15 years, including five years as a mechanic and 10 years in
industrial fabrication. He opined that the fire had not been caused by the fuel line,
because he observed no damage to the fuel line, gas cap, or gas tank. He further noted
that fuel line fires generally start under the hood or under the vehicle, whereas this fire
appeared to have started in the cab. Deocampo also opined that the fire was not caused
by faulty wiring, reasoning that a wiring fire would not get sufficiently hot to do the
damage he observed. He further testified that the fire was not consistent with any of the
mechanical vehicle fires he had observed in the past. In passing, Deocampo referred to
the truck as having been “set on fire.” When asked whether he could determine the cause
of the fire, Deocampo responded “I couldn’t. I can only assume.”
         Officers found a safe and a cash box about 10 or 15 feet away from the truck.
The cash box said “Pearce European Japanese, Santa Cruz, California” on it. Pearce
co-owner, Courtney Immel, identified the safe and cash box as those stolen from the auto
repair shop.




                                              5
       E.     Purchases at DJ’s Minimart and Safeway
       The Pearce ATM card was used to make two purchases at DJ’s Minimart at
5:32 a.m. and 5:35 a.m. on May 10, 2013. Michael Cortez, a cashier at DJ’s Minimart,
testified that he sold two money orders to one man at 5:30 or 5:45 a.m. on May 10, 2013.
The man was wearing a hat with the hood of a sweatshirt pulled up over it. Shortly
before trial, a detective asked Cortez to look at photographs of six individuals and
determine whether any of them showed the man to whom he sold the money orders on
May 10, 2013. Cortez identified Archuleta as the purchaser of the money orders.
       Law enforcement obtained surveillance videos from the Morrissey and 41st
Avenue Safeway locations for the time periods surrounding the transactions using the
Pearce ATM card. Footage from the Morrissey Safeway shows a white Ford F-150 pull
into the parking lot shortly before the unauthorized transactions. Three men participated
in the transactions in the Morrissey Safeway. Stills showing their faces were shown to
Nicholas Baldrige, a deputy with the Santa Cruz County Sheriff’s Office. He identified
two of the men as Bombaci and Jones based on prior contacts with those men. Laurel
Schonfield, an officer with the Santa Cruz Police Department, identified the third man as
Archuleta based on numerous prior encounters with him. In the video, the man
Schonfield identified as Archuleta is wearing dark-colored pants and a black sweatshirt
with the hood pulled up. A Safeway club card belonging to Susan Bombaci was used
during the unauthorized transaction at the Morrissey Safeway. Robert Bombaci’s
mother, with whom he lived, is named Susan Bombaci.
       Surveillance video from outside the 41st Avenue Safeway shows a vehicle drop
off one individual. Detective Steve Ryan testified that the vehicle appeared to be the
white Ford F-150 registered to Archuleta’s wife. Something red the size and shape of a
large gas can is visible in the truck bed. Video from inside the store shows the suspect
wearing a sweatshirt with the hood up and black shoes with white soles, attire similar to
that worn by the individual identified as Archuleta in the Morrissey Safeway video and
                                             6
similar to that worn by one of the suspects in the Pearce surveillance footage.
       F.       Arrests
       Police arrested Jones in connection with the stolen truck, burglary, and suspected
arson on May 15, 2013. A five gallon gas can was found in his vehicle, a burgundy
Dodge Ram Charger, at the time of his arrest. Detective Ryan testified, based on Google
image searches he had performed, that a Dodge Ram Charger has two doors and a
four-by-four shape. Detective Ryan testified that he found a black hooded sweatshirt
with a white Santa Cruz logo in Jones’s vehicle, which he described as being “identical”
to the sweatshirt seen on one of the suspects in the surveillance videos.
       Bombaci was arrested on May 22, 2013. At that time, a key was found in his
pants pocket. It was later determined that the key opened the padlock used to secure the
maintenance fence at DeLaveaga. Just prior to his arrest, Bombaci was with another
individual who was driving the white Ford F-150 registered to Archuleta’s wife. (That
individual was neither Archuleta nor his wife.)
       Archuleta also was arrested on May 22, 2013. Detective Deocampo testified that
he located Archuleta at a storage facility where Archuleta was trying to break into his
own storage unit because he did not have the key. Deocampo further testified that
Archuleta had in his possession tools for lock picking and crow bars. Deocampo stated
that items like those in Archuleta’s possession are commonly used for unlawful purposes.
As noted above, Archuleta was wearing black DC brand shoes with white soles when he
was arrested.
       G.       Verdict and Archuleta’s Motion for a New Trial
       After deliberating for an hour and a half on a Friday afternoon, the jury returned
verdicts of guilty as to all five counts.
       Archuleta moved for a new trial on juror misconduct grounds, among others. For
his juror misconduct argument, he relied on a posttrial questionnaire in which Juror A
indicated that Juror B had “push[ed] for a guilty verdict” without deliberations because
                                             7
she had a conference to attend the following Monday for work. The juror questionnaire
further indicated that Juror A “had to fight for” a “thorough discussion” of the evidence
and that she and two other jurors “had to push to really peruse the evidence.”
Accordingly to the questionnaire, “[i]n the end, [the jury] did have a perusal of all of the
evidence . . . .” Defendant also requested a hearing to inquire further into the deliberation
process. The court denied the motion for a hearing and the motion for a new trial.
        H.       Sentencing and Appeal
        The trial court sentenced defendant to a term of five years four months in prison
on December 6, 2013. The sentence consisted of three years, the upper term on the arson
conviction; plus a consecutive eight months, one-third the middle term for unlawful
taking of a vehicle; plus a consecutive four months, one-third the middle term for
attempted second degree commercial burglary; plus a consecutive eight months, one-third
the middle term for second degree commercial burglary; plus a consecutive eight months,
one-third the middle term for grand theft by use of an access card.
        Defendant timely appealed.

II.     DISCUSSION

        A.       Sufficiency of the Evidence Supporting the Arson Conviction
        Archuleta challenges his arson conviction on sufficiency of the evidence grounds.
He claims there is insufficient evidence to establish (1) the fire was intentionally set or
(2) he set it.
                 1.    Standard of Review
        “When considering a challenge to the sufficiency of the evidence to support a
criminal conviction, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71


                                              8
Cal.App.4th 62, 71.) “In making this determination, we do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (Ibid.) Nor
do we ask whether we “ ‘believe[] that the evidence at the trial established guilt beyond a
reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v.
Virginia (1979) 443 U.S. 307, 319.)
                2.     Substantive Law
         “A person is guilty of arson when he or she willfully and maliciously sets fire to or
burns or causes to be burned or who aids, counsels, or procures the burning of, any
structure, forest land, or property.” (Pen. Code, § 451.) Thus, the People were required
to establish Archuleta set fire to, burned, caused to be burned, or aided the burning of the
truck.
         Circumstantial evidence may be relied upon to establish culpability for arson.
(People v. Beagle (1972) 6 Cal.3d 441, 449, superseded by statute on other grounds as
stated in People v. Castro (1985) 38 Cal.3d 301, 307-313.) Evidence courts have relied
upon in affirming arson convictions in the face of sufficiency of the evidence challenges
includes motive evidenced by a threat, the defendant’s prior presence in the burned
building, the defendant’s possession of inflammatory materials, the defendant’s presence
in the vicinity at the time of the fire, lack of evidence of natural or accidental cause but
evidence of intentional cause, more than one fire with temporal and spatial proximity,
and the defendant’s possession of an instrumentality used to start a fire. (People v.
Beagle, supra, at p. 449.)
                3.     Analysis
         Sufficient evidence supports the jury’s verdict finding Archuleta guilty of arson.
First, there was ample evidence, in the form of surveillance videos, and officer
identification, that Archuleta participated in an attempted burglary and burglary using the
                                               9
stolen DeLaveaga truck. From that evidence, the jury could reasonably infer a motive to
destroy the truck and, with it, any evidence of Archuleta’s association with the truck.
Second, the Hertz and Pearce surveillance videos (combined with the Safeway videos and
officers identification) establish Archuleta’s presence in the truck approximately one hour
before the fire. Third, surveillance video from outside the 41st Avenue Safeway shows
Archuleta exit the Ford F-150; a gas can is visible in the truck’s bed. Jurors reasonably
could infer that the gas can contained inflammatory material (i.e., gasoline), particularly
given the testimony that Jones and another man were seen with a vehicle resembling
Bombaci’s and using a similar gas can to fill up the tank of a white Ford F-150 hours
earlier. Fourth, jurors heard testimony regarding a home surveillance video that shows a
white Ford F-150 and a white Ford Ranger truck, like the one stolen from DeLaveaga,
drive in the vicinity of the fire about 10 or 15 minutes before the fire was reported.
Surveillance footage from Pearce and Hertz placed Archuleta in the stolen white Ford
Ranger truckabout an hour earlier and surveillance footage from the Safeway locations
placed Archuleta in a white Ford F-150 about an hour later. Based on the foregoing
evidence, jurors reasonably could infer that defendant was present in the vicinity of the
fire at the time it started. Finally, Detective Deocampo could not identify a natural cause
of the fire.
       Even absent Deocampo’s testimony (discussed further below), we conclude the
evidence of motive, prior presence in the burned truck, possession of inflammatory
materials (the gas can), and presence in the vicinity at the time of the fire are sufficient to
support Archuleta’s arson conviction.

       B.      Ineffective Assistance of Counsel Claim
       Archuleta maintains his trial counsel rendered ineffective assistance by neither
objecting to, nor moving to exclude, Detective Deocampo’s testimony suggesting that the
truck fire was the result of arson. Specifically, Archuleta argues his counsel should have


                                              10
moved to strike Deocampo’s statement that the truck had been “set on fire” and objected
that he was not qualified to rule out potential causes of the fire.
              1.      Legal Principles
       “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish both that
his counsel’s performance was deficient and that he suffered prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance
component of an ineffective assistance of counsel claim requires a showing that
“counsel’s representation fell below an objective standard of reasonableness” “under
prevailing professional norms.” (Id. at p. 688.) “It is . . . particularly difficult to establish
ineffective assistance of counsel on direct appeal, where we are limited to evaluating the
appellate record. If the record does not shed light on why counsel acted or failed to act in
the challenged manner, we must reject the claim on appeal unless counsel was asked for
and failed to provide a satisfactory explanation, or there simply can be no satisfactory
explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) With respect to prejudice,
a defendant must show “there is a reasonable probability”—meaning “a probability
sufficient to undermine confidence in the outcome”—“that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
(Strickland, supra, at p. 694.)
              2.      Analysis
       As noted above, where the record does not demonstrate the reason counsel took
certain action or failed to take certain action, an appellate court must reject the
defendant’s ineffective assistance of counsel claim “unless counsel was asked for and
failed to provide a satisfactory explanation, or there simply can be no satisfactory
explanation.” (People v. Scott, supra, 15 Cal.4th at p. 1212.) Here, the record is devoid
                                               11
of any reason or reasons defense counsel may have elected not to move to strike
Deocampo’s statement that the truck had been “set on fire.” Counsel may have made a
tactical decision not to draw the jurors’ attention to the passing comment. (See, e.g.,
People v. Huggins (2006) 38 Cal.4th 175, 206 [finding no ineffective assistance of
counsel when counsel’s failure to object could be explained as a tactical decision not to
draw the jurors’ attention to comments by the prosecutor]; People v. Milner (1988) 45
Cal.3d 227, 245 [finding no ineffective assistance of counsel when counsel failed to
object to the prosecutor’s statements during argument because counsel could reasonably
have chosen to ignore the statements rather than draw attention to them by objecting].)
Because we cannot say “there simply can be no satisfactory explanation” for counsel’s
failure to move to strike Deocampo’s statement that the truck had been “set on fire,” we
must reject Archuleta’s ineffective assistance of counsel claim to the extent it is based on
that conduct.
       The record likewise does not disclose any reason why trial counsel may have
elected not to object that Deocampo was not qualified to opine that the fire was not
caused by the fuel line or by faulty wiring. Counsel may have made the tactical decision
not to object based on the reasonable belief that the court would have found Deocampo to
be qualified as an expert on vehicle fires based on his five years of experience as a
mechanic and 10 years of experience in industrial automotive fabrication. Because a
satisfactory explanation for counsel’s failure to object exists, we reject Archuleta’s
ineffective assistance of counsel claim.
       Even assuming trial counsel’s performance was deficient, Archuleta’s challenge
fails because he has not established any prejudice resulting from that assumed error.
(Cal. Const., art. I, § 13 [prohibiting reviewing court from setting aside a judgment due to
trial court error unless it finds the error prejudicial]; People v. Ledesma, supra, 43 Cal.3d
at pp. 216-217 [to prevail on a claim of ineffective assistance of counsel defendant must
show trial counsel’s performance was deficient and that deficiency prejudiced
                                             12
defendant].) As discussed above, there was sufficient evidence to convict Archuleta of
arson absent Deocampo’s testimony. Accordingly, there is no reasonable probability that
the result of the trial would have been different had trial counsel successfully moved to
strike or objected to portions of that testimony.

       C.     Admission of Evidence of Burglary Tools
       Archuleta argues the trial court erred by admitting Deocampo’s testimony that
Archuleta possessed tools that may be used for lock picking and unlawful purposes at the
time of his arrest. He contends that testimony was irrelevant or, if relevant, was unduly
prejudicial under Evidence Code section 352.
       Defense counsel objected to the testimony on relevance grounds at trial. The court
initially sustained that objection, but ultimately overruled it following a side bar. During
the side bar, the court first reasoned that the testimony might be relevant because the lock
securing the fenced-in area at DeLaveaga may have been picked. However, after
learning there would be testimony that the previously-stolen key that operates that lock
was found on Bombaci, the court indicated its intention to “go with [its] original” ruling.
However, the court changed its mind after the prosecutor argued the tools were relevant
to the attempted burglary at Hertz. The court also concluded the evidence was not more
prejudicial then probative.
              1.     Legal Principles and Standard of Review
       Only relevant evidence is admissible. (Evid. Code, § 350.) The Evidence Code
defines “relevant evidence” broadly as “evidence . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action.” (Id., § 210, italics added.) “ ‘[T]he trial court has broad discretion to determine
the relevance of evidence.’ ” (People v. Tully (2012) 54 Cal.4th 952, 1010.) “On appeal,
‘an appellate court applies the abuse of discretion standard of review to any ruling by a
trial court on the admissibility of evidence . . . .’ ” (People v. Hovarter (2008) 44 Cal.4th


                                             13
983, 1007-1008.) This court has explained that “[d]iscretion is abused only when in its
exercise, the trial court ‘exceeds the bounds of reason, all of the circumstances before it
being considered.’ [Citation.] There must be a showing of a clear case of abuse and
miscarriage of justice in order to warrant a reversal.” (Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 281, italics added (Shaw).) The erroneous admission of
evidence is reversible error only if “a different result would have been probable if [the]
error . . . had not occurred . . . .” (Code Civ. Proc., § 475.) “ ‘Prejudice is not presumed,
and the burden is on the appealing party to demonstrate that a miscarriage of justice has
occurred.’ ” (Turman v. Turning Point of Central California, Inc. (2010) 191
Cal.App.4th 53, 58.) It likewise is appellant’s burden to establish abuse of discretion.
(Shaw, supra, at p. 281.)
       A trial court has the discretion to “exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of Evidence Code
section 352, evidence is “prejudicial” if it “ ‘ “uniquely tends to evoke an emotional bias
against defendant” ’ without regard to its relevance on material issues.” (People v. Kipp
(2001) 26 Cal.4th 1100, 1121 (Kipp).) “ ‘ “[E]vidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury, motivating
them to use the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the substantial likelihood the
jury will use it for an illegitimate purpose.” ’ ” (People v. Scott (2011) 52 Cal.4th 452,
491.) “We apply the deferential abuse of discretion standard when reviewing a trial
court’s ruling under Evidence Code section 352.” (Kipp, supra, at p. 1121.)




                                             14
              2.     Admission of the Testimony Regarding Burglary Tools Did Not
                     Constitute Prejudicial Error
       The attempted burglary suspects tried to break into Hertz by prying open a
window. Accordingly, the trial court did not abuse its discretion in concluding
Deocampo’s testimony that Archuleta possessed crow bars and tools used for lock
picking at the time of his arrest was relevant to whether Archuleta was guilty of the
charged offense of attempted second degree commercial burglary.
       With respect to Evidence Code section 352, the probative value of the testimony
was low, as there was no evidence linking the tools found on Archuleta to the Hertz
attempted burglary. However, the probability that the testimony’s admission would
create a substantial danger of undue prejudice also was minimal. There was substantial
evidence that Archuleta attempted to burglarize Hertz and aided in the Pearce burglary—
namely, the Pearce, Hertz, and Safeway surveillance videos and the resulting officer
identifications. Thus, evidence that he possessed burglary tools would hardly have
surprised jurors, let alone “ ‘ “evoke[d in them] an emotional bias against
defendant . . . .” ’ ” (Kipp, supra, 26 Cal.4th at p. 1121.) We therefore perceive no abuse
of discretion in the court’s conclusion that the probative value of the testimony was not
substantially outweighed by the probability that its admission would create substantial
danger of undue prejudice.
       Even assuming the trial court abused its discretion in admitting the testimony, that
error was harmless. Generally, the admission of evidence in violation of state law, here
Evidence Code section 352, is reversible only upon a showing that it is “reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) A due process
clause violation, requiring review under the more stringent federal standard set forth in
Chapman v. California (1967) 386 U.S. 18, occurs where the admission of the evidence
“makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.)


                                            15
The admission of the testimony was not “ ‘so prejudicial as to render the defendant’s trial
fundamentally unfair.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) Accordingly,
we apply the Watson harmless error standard. Because the testimony merely was
cumulative of other evidence that Archuleta engaged in burglary activities, he fails to
show a reasonable probability that the trial court’s ruling, even if error, affected the
outcome of his case.

       D.     Juror Misconduct
       Finally, Archuleta asserts the trial court erred by failing to hold a full evidentiary
hearing on the allegation of juror misconduct raised in his motion for a new trial. He
contends the juror questionnaire he submitted to the trial court indicated at least one juror
refused to deliberate, and that a hearing was required to determine whether other jurors
were pressured into reaching a verdict without adequate deliberations.
              1.       Standard of Review and Governing Legal Principles
       “We review for abuse of discretion the trial court’s denial of defendant’s
postverdict request for an evidentiary hearing into allegations of jury misconduct.”
(People v. Carter (2003) 30 Cal.4th 1166, 1216.)
       “The trial court has the discretion 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. [Citation.] Defendant is not, however, entitled to an
evidentiary hearing as a matter of right.” (People v. Avila (2006) 38 Cal.4th 491, 604.)
“A court must hold an evidentiary hearing on alleged jury misconduct only when the
defendant shows ‘a strong possibility that prejudicial misconduct has occurred. 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.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 55.) “These restrictions are
necessary because allowing routine postverdict juror examinations ‘ “would open the


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door to harassment of jurors and . . . ultimately damage the jury process and the
administration of justice.” ’ ” (Ibid.)
       Jurors have a duty to deliberate. (In re Bolden (2009) 46 Cal.4th 216, 228.)
“ ‘A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative
process; that is, he or she will not participate in discussions with fellow jurors by
listening to their views and by expressing his or her own views. Examples of refusal to
deliberate include, but are not limited to, expressing a fixed conclusion at the beginning
of deliberations and refusing to consider other points of view, refusing to speak to other
jurors, and attempting to separate oneself physically from the remainder of the jury.’ ”
(Ibid.) A refusal to deliberate constitutes misconduct. (People v. Lomax (2010) 49
Cal.4th 530, 589.)
              2.      Analysis
       Archuleta fails to show the trial court erred in finding the juror questionnaire
insufficient to warrant further inquiry for two reasons. First, the juror questionnaire did
not show “ ‘a strong possibility that prejudicial misconduct . . . occurred.’ ” (People v.
Manibusan, supra, 58 Cal.4th at p. 55.) Rather, the questionnaire showed only that one
juror initially indicated a desire not to deliberate and attempted to convince others to do
the same, but that three or more jurors successfully fought for a discussion of the
evidence. The questionnaire does not indicate that any juror ultimately failed to engage
in the deliberations when they occurred. Second, the only evidence of the alleged
misconduct—the juror questionnaire—presented no “ ‘material conflict that [could] only
be resolved at [an evidentiary] hearing.’ ” (Ibid.) Accordingly, we find no abuse of
discretion in the trial court’s denial to Archuleta’s request for an evidentiary hearing.

III.   DISPOSITION
       The judgment is affirmed.




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                             Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Archuleta
H040641
