Filed 7/7/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S106489
           v.                        )
                                     )
FRED LEWIS WEATHERTON,               )
                                     )                       Riverside County
           Defendant and Appellant.  )                   Super. Ct. No. INF030802
____________________________________)


      A jury convicted defendant Fred Lewis Weatherton of robbery, attempted
murder, and two counts of first degree murder with special circumstances, then
returned a verdict of death.1 Because juror misconduct during the guilt phase
raises a substantial likelihood of actual bias, we reverse the judgment.
                                     I. FACTS
        In light of our conclusion, we summarize the relevant facts.
        On the afternoon of Halloween 1998, defendant, Ernest Hunt, Nelva Bell,
her roommate Connie Olivolo, Samuel Ortiz, Latonya Roberson, and her one-



1       Penal Code sections 211 (robbery), 187/664 (attempted murder), 187,
subdivision (a) (first degree murder), and 190.2, subdivision (a)(3) (multiple
murder) and (17) (robbery murder). (Further unlabeled statutory references are to
the Penal Code.) The jury further found that defendant personally discharged a
firearm during the crimes (former § 12022.53, subd. (d); § 1192.7, subd. (c)(8)),
and that he had suffered seven prior “Three Strikes” convictions (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)).



                                          1
year-old son convened at Hunt‟s home in Indio. The adults shared crack cocaine
brought by Bell and Olivolo. Defendant was known by the nickname “Boo-Boo.”
       Defendant had no money, but was intent on obtaining more drugs. During
the evening, he suggested Olivolo have paid sex with one of his friends. He and
Bell twice acquired crack on credit from a drug dealer. Later that evening, Bell,
Roberson, and her son left Hunt‟s and went to Ortiz‟s house to spend the night.
Defendant returned to the drug dealer‟s home, where he obtained more crack on
credit and displayed what appeared to be a firearm.
       Early in the morning of November 1, Bell awoke to hear defendant‟s voice
outside Ortiz‟s house. Defendant said, “Tonya, Tonya, I just found Ernest [Hunt]
dead.” Ortiz opened the door, then tried to close it at Bell‟s urging. Defendant,
carrying a long black gun, kicked the door open, entered, and asked, “Where the
money at?” Roberson swore she had none. Defendant replied, “Bitch, I ain‟t
playing with you,” and shot her in the forehead. Ortiz said, “Boo-Boo, you can
have my money,” saying his wallet was under the bed. Defendant retrieved the
cash then shot Ortiz in the head. Roberson was moaning; defendant shot her in the
throat. Bell, holding the boy, pleaded, “Boo-Boo, don‟t shoot me. I won‟t tell
nobody.” At defendant‟s direction, she put the child down, whereupon defendant
shot her in the back. He then stood over her and shot her in the face. Bell had
been covering her face with her hand. The bullet passed through her wrist and into
her mouth. She “played dead.” Defendant kicked her leg several times and left.
       Vernon Neal, who lived close by, arrived at Ortiz‟s house early that
morning. He saw Roberson sitting on the floor, the child sitting on a bed, and
Ortiz lying face down on the floor. Bell told Neal that Boo-Boo shot them. She
told a responding police officer the same thing, adding that defendant acted alone,
used a “big gun,” and committed the crimes “to rob us.” The police located and
arrested defendant at Hunt‟s house.

                                         2
       A police officer, who was an experienced tracker, found shoe prints at the
scene similar in size, wear, and sole design to the shoes defendant was wearing
when arrested. Prints led from Hunt‟s house to an area near Ortiz‟s home. Others
led north away from the Ortiz residence. The prints leading toward Ortiz‟s house
were close together, suggesting defendant was walking. The prints leading away
from the house were further apart, with deeper toe impressions, suggesting
defendant was running.
       Ortiz died at the scene; Roberson was pronounced dead at the hospital.
Bell was alert and talking at the hospital. She had been shot in the back. A second
bullet shattered her wrist, entered her mouth, split her tongue, and struck her teeth.
Bullet fragments recovered from Roberson‟s hospital gurney and fragments found
in the Ortiz house were determined to have been fired from the same gun.
       Bell was initially intubated and unable to talk. She did, however, select
defendant as her shooter from a photographic lineup. Asked if she was “100
percent positive,” she nodded yes. Bell later told Olivolo that Boo-Boo shot her.
Bell, who had known defendant for more than a year, testified she remained “100
percent sure” defendant had shot her and the others.
       The jury convicted defendant and returned a verdict of death.
                                 II. DISCUSSION
       Defendant contends Juror No. 1‟s misconduct during the guilt phase
requires reversal of his conviction and sentence.
       The jury returned a guilty verdict on February 20, 2002, and the verdict was
recorded. Three days later, the trial court received an anonymous phone message
that it played for the prosecutor and the defense. The caller said he overheard a
young man wearing a juror‟s badge say, “this guy should be getting the death
penalty, because that‟s what he wants.” The caller did not indicate when the
incident occurred. The court noted there were only three men on the jury: Juror

                                          3
No. 1 (P.P.), Juror No. 5 (M.K.), and Alternate Juror No. 5 (G.S.).2 Everyone
agreed the court should question the three jurors.
       On February 25, the trial court granted defendant‟s request to represent
himself, appointing defense counsel as standby counsel.
       At a February 27 hearing, the prosecutor reported that Juror No. 3 (D.A.)
approached an attorney, not otherwise involved in the case. When D.A. said she
wanted to discuss the matter, the attorney refused and reported the incident. The
court questioned D.A., who expressed “concern[] that [defendant] is not getting a
fair trial with the jurors.” When D.A. began to discuss deliberations, she was
interrupted and excused from the courtroom. The parties discussed how best to
proceed. D.A. returned and testified that other jurors had engaged in misconduct.
Specifically, she alleged P.P. and M.K. discussed the penalty toward the end of
guilt phase deliberations. P.P. said defendant “should get the death penalty,” and
M.K. agreed. The court questioned the other jurors on the panel, including P.P.
and M.K. All denied discussing or making up their minds about punishment.
       The trial court also questioned the alternate jurors. Alternate Juror No. 1
(K.G.) testified that, on several occasions, she heard jurors discuss punishment,
saying defendant should receive the death penalty. K.G. identified P.P. as the
person most involved in these discussions. She also testified that P.P. called her at
home during deliberations, saying “he had interesting news.” K.G. said P.P. also
called former Alternate Juror No. 6 (T.M.) (who replaced Juror No. 8 (M.R.)) and
another alternate juror, described as having red hair. Alternate Juror No. 4 (L.B.)


2       In reciting the relevant facts, the designation of jurors becomes somewhat
complicated, particularly because some numbered alternates later replaced
numbered jurors. For convenience of the reader, we refer to most jurors using
their initials.



                                          4
testified that, before deliberations, P.P. repeatedly expressed his opinion that
defendant was guilty. The other alternate jurors testified they did not recall
anyone discussing punishment. P.P. and T.M. were reexamined; both denied
discussing the case outside deliberations.
       At a February 28 hearing, the trial court discussed the allegations with the
parties. The parties agreed that P.P., K.G., and L.B. should be excused. The
prosecutor argued D.A. should be excused as well for talking to the attorney, but
defendant contended she could be rehabilitated and, in any event, the court should
inquire further regarding her allegation that defendant had been denied a fair trial.
The court indicated its decision to excuse D.A., K.G., L.B., and P.P. It did not
immediately inform the jurors of that decision and said it would ask the four jurors
additional questions. The prosecution expressed concern that the jurors‟ answers
might expose them to potential civil or criminal liability and wondered whether
the court should advise the jurors of their rights and provide attorneys.
       The trial court reexamined L.B. who recounted numerous conversations
with P.P. before deliberations began. P.P. told her he believed defendant was
guilty and because of Bell‟s testimony, “there should be nothing else.” P.P. also
said that, “when he got into the deliberation room he was going to vote guilty . . .
he wanted to see where everything was going. But his first vote was going to be
guilty.” P.P. anticipated “a lot of argument against him in [deliberations].” In
particular, he “felt he would have a battle and especially a battle with [D.A.], that
they would probably argue.” The court asked L.B. whether she thought P.P. “was
going to listen to what other people had to say.” L.B. said, “No. His mind was
made up. That‟s what I thought.” L.B. also testified that P.P. called her during
deliberations and reported arguing with D.A.
       The trial court reexamined P.P., telling him at the outset, “it is pretty clear
to me that you were basically talking to everybody about the case during the whole

                                           5
time prior to deliberations . . . . So that‟s no longer a question in my mind
anymore.” P.P. denied prejudging the case, denied saying he thought defendant
was guilty, and denied saying before deliberations that he would vote for guilt. To
the contrary, he testified he kept an open mind and fully participated in
deliberations. Finally, the court reexamined D.A. She testified she overheard P.P.
tell M.R. days after the trial began that “he felt that [defendant] was guilty.”
       At the conclusion of the hearing, defendant moved for a mistrial based on
jury misconduct. The trial court explained it could not declare a mistrial because
it had already recorded the guilty verdict. The court told defendant he could file a
motion for a new trial, but the prosecutor would be given time to respond. In the
interim, the penalty phase would begin. The jury was summoned, and the court
excused P.P., D.A., K.G., and L.B. Alternate Juror No. 2 (A.G.) replaced P.P.,
and G.S. replaced D.A. After admonition not to discuss the case with anyone, the
panel was excused.
       On March 4, the next court day, defendant filed a written motion for a new
trial and mistrial, attaching the declarations of D.A., M.R., K.G., and L.B. The
motion alleged P.P. prejudged the case and discussed the case with other jurors
outside of deliberations. Regarding what effect the allegations would have on the
penalty phase, the trial court asked the prosecutor, “if we assume then that there is
a presumption of prejudice here, how are you going to rebut or overcome that
prejudice?” The prosecutor asked, “as to what issue?” The court responded, “The
fact that a juror has pre-decided a case and participated in deliberation and
affected the other jurors that are still sitting.” When the prosecutor said that there
was no evidence that happened, the court said, “Sure we do. [P.P.] prejudged the
case, period.” The court later remarked, “[P.P.] prejudged. He committed
misconduct, and then he carried it into the jury room.” When the prosecutor
argued there was no evidence P.P.‟s misconduct tainted the other jurors, the court

                                           6
noted “defendant is entitled to 12, unbiased jurors.” The court also said, “the
reason we know [P.P.] was prejudging the case is because he talked to other jurors
and was trying to lobby them to vote guilty before the deliberations even started.”
After a recess, the court softened its view. It said that, at this point, whether P.P.
prejudged defendant‟s guilt was based on the testimony of other jurors who had
themselves admitted misconduct.3 At the prosecution‟s request, the court
ultimately took the motion under submission until after the penalty phase to permit
the prosecution to interview the jurors.4
       With the issue still in flux, the penalty phase began on March 4; a death
verdict was returned on March 7. On March 15, a hearing on defendant‟s motion
for a new trial began. At the outset, the trial court and the parties addressed the
authenticity and admissibility of declarations submitted.5

3      At the conclusion of the March 4 hearing, defendant said, “[it] seem[s] to
me the Court already had made a factual finding regarding [P.P.]. . . . This
morning I thought I heard you say that . . . [P.P.] had prejudged.” The trial court
said, “Well, sometimes I play the devil‟s advocate to help you out . . . .”
4      When asked for his views on how to proceed, defendant cited California
Criminal Law: Procedure and Practice (Cont.Ed.Bar 6th ed. 2002) section 55.33,
page 1634: “[A] motion for new trial between the guilt and penalty phases may
forestall or render unnecessary the penalty phase. The court and prosecutor may
prefer to litigate a motion for new trial before resources have been spent on a
penalty phase. If reversible error has already been committed, a penalty phase
would be futile.” Given significant evidence of serious misconduct, it would be
more prudent to rule on a motion before proceeding to the penalty phase.
5       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.” Where to draw the admissibility line may prove difficult.
                                                           (Footnote continued on next page.)


                                            7
        A hearing was held on March 20. At the trial court‟s direction, conflict
attorneys were in attendance. K.G. was called to the stand. The court first advised
her that some of her testimony might subject her to criminal prosecution or
contempt of court. It advised K.G. of her right against self-incrimination and told
her that attorneys were present to assist her if she chose to invoke the Fifth
Amendment. Defendant asked K.G. if she “ever ha[d] an occasion to discuss this
case with anybody?” The court interjected, “Ma‟am, that‟s one of the questions
that . . . may incriminate you if your answer would show that you violated your
oath as a juror” and asked whether she wanted to speak with an attorney. When
K.G. began to cry, the court excused her from the courtroom and appointed one of
the conflict attorneys to “tell [her] what [her] options are.” The appointed attorney
first noted that a grant of immunity by the prosecution or the court might be an
appropriate solution. The prosecution indicated it would not offer immunity to
any juror, but allowed that the court might decide to grant use immunity. When
recalled to the stand, K.G. asserted her Fifth Amendment rights, and the court
granted her use immunity. 6


(Footnote continued from previous page.)

Admissibility of evidence under this statute was litigated in the trial court, and
neither party raises the issue here. We express no opinion on the court‟s rulings or
on the admissibility of evidence relied upon by the court.
6       The trial court similarly advised M.R., D.A., L.B., and P.P. After L.B. and
P.P. invoked their Fifth Amendment rights, the court granted them use immunity.
The court also told the remaining jurors that some jurors had admitted committing
misconduct and attorneys had been appointed to advise them of their rights. The
court informed the remaining jurors of their rights and told them lawyers could
assist them as well, although it noted “this may not involve you.” We have been
unable to find another instance in which a court investigating possible jury
misconduct similarly advised jurors of their Fifth Amendment rights and offered
to appoint an attorney. Given the speculative nature of the nascent Fifth
                                                          (Footnote continued on next page.)


                                           8
        K.G. testified that jurors discussed the case from the beginning of trial. On
the first day, P.P. told K.G., D.A., and T.M. that he would vote guilty because
“there was no denying Nelva Bell‟s testimony.” Two to five other times, P.P. told
K.G. that defendant was guilty. K.G. testified that other jurors also said defendant
was guilty before deliberations had begun. After K.G., P.P., D.A., and L.B. had
been excused from the jury, P.P. told them he had lied to the court about not
discussing the case with others because “he was covering for everybody else, as he
would assume that everyone else was covering for him.” On cross-examination,
K.G. admitted engaging in misconduct, having a “pretty poor memory,” and
“having trouble recalling all these facts.”
        D.A. testified that, before deliberations began, P.P. told her, L.B., and T.M.
that “he was going to vote guilty no matter what.” On another occasion, P.P.
explained to T.M. why he thought defendant was guilty. On cross-examination,
D.A. admitted committing misconduct. The prosecutor also asked about
discrepancies in her testimony and placed into evidence an audio recording of
D.A. telling a defense investigator that P.P. said, “no matter what happens, I‟m
going in there and vote guilty the first . . . time I vote because just in case.” The


(Footnote continued from previous page.)

Amendment issue in these circumstances (see Juror Number One v. Superior
Court (2012) 206 Cal.App.4th 854, 865 [rejecting the Fifth Amendment claim as
speculative]) and lacking some articulation of a crime the jurors may have
committed, the court‟s decision to proceed in this fashion threatened to undermine
its ability to acquire complete and accurate information, untainted by jurors‟ now-
heightened concerns about their own interests. (See People v. Tuggles (2009) 179
Cal.App.4th 339, 380 [“When a defendant makes a prima facie showing of juror
misconduct, the trial court must conduct a hearing . . . „to determine the truth of
the allegations.‟ ”].) Because we reverse the judgment for prejudicial juror
misconduct, however, we have no occasion to pass on the propriety of the court‟s
decision to proceed in this manner.



                                           9
investigator asked D.A. what was meant by “just in case,” and D.A. said she
“assum[ed] just in case we all said not. . . . You know because he wanted to
discuss it . . . I don‟t know if he was dead set on guilty . . . .”
       L.B. testified that she drove P.P. home from court almost every day
beginning in the second week of the trial. During their commute, P.P.
“consistently said that the defendant was guilty.” On one occasion, L.B. went to
lunch with P.P. and D.A. P.P. said “he was probably going to be arguing with
[D.A.] during the [eventual] deliberations because they were at opposite sides.”
P.P. later called L.B., an alternate juror, during deliberations. He reported that
“things weren‟t going well,” he relayed the vote count, he said that D.A. was
upset, and expressed his belief that he should have been the foreman. Before
deliberations, P.P. frequently said he was going to vote guilty. Although he said
“he would listen to what the others said,” “he felt it was guilty, because he had to
believe what Nelva Bell said.” On cross-examination, L.B. admitted committing
misconduct.
       T.M. testified other jurors, including P.P., discussed the case before
deliberations. In her opinion, P.P. prejudged defendant‟s guilt before the case was
submitted to the jury. After deliberations began, P.P. said he thought D.A. was
“mad at me because I think — I think [defendant‟s] guilty.”
       A.G., G.S., M.K., former Alternate Juror No. 3 (J.A.) (who replaced Juror
No. 2 (C.S.)), along with Juror Nos. 4, 6, 7, and 9-12 testified they did not hear
other jurors discuss the case outside the jury room.
       P.P. first testified he did not hear jurors discuss the case outside of the jury
room or before deliberations. He subsequently admitted discussing the case on
numerous occasions with other jurors, including D.A. and L.B. He admitted
telephoning L.B. during deliberations. In explaining his lies, he said he thought
his conversations were “unimportant,” and he did not want to get anyone in

                                            10
trouble. He initially denied making statements about defendant‟s punishment or
prejudging his guilt. He later admitted that, although he did not remember saying
defendant was guilty, he might have done so. He also admitted telling others
before deliberations that he believed Bell‟s testimony. When asked if he ever told
L.B. and D.A. that he was going to vote guilty once deliberations began, P.P.
testified that it was possible, but he did not remember. P.P. testified he
consistently voted for guilt. On cross-examination by the prosecutor, P.P. testified
he only formed an opinion on guilt after watching Bell‟s recorded hospital
interview at the conclusion of the prosecutor‟s rebuttal. Only then did he express
an opinion to D.A. and L.B. P.P. also testified he participated in deliberations and
listened to the readback of testimony.
       At a March 28 hearing, the trial court found P.P. committed “serious
misconduct,” but concluded it did “not rise to the level that there is a substantial
likelihood [of bias].”7 The court acknowledged its initial view was to the
contrary, but noted that evidence had been presented that P.P. engaged in
deliberations, was not “dead set” on guilt, and only voted initially for guilt to see
what others had to say. The court determined neither P.P. nor D.A. “ha[d] a lot of
credibility.” It found that, before deliberations began, P.P. decided that his first
vote would be guilty, but he would thereafter listen to the other jurors and engage
in deliberations. The court found D.A.‟s tape-recorded statement and L.B.‟s
testimony to be the most compelling evidence concerning P.P.‟s intentions. The
court noted P.P. did not arrive at the court with a formed opinion and based his




7    As we explain below (see post, at pp. 12, 15), the court misinterpreted the
manner in which the analysis is to proceed.



                                          11
opinion only on the evidence presented at trial.8 It also noted that the jury asked
for a readback of testimony, which it considered evidence that the jury was
deliberating. The court denied the motion for a new trial.9
       Defendant contends overwhelming evidence establishes P.P. committed
prejudicial misconduct, and reversal is required. We agree.
       A criminal defendant “has a constitutional right to a trial by unbiased,
impartial jurors. [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 578
(Nesler).) That means “12, not 11, impartial and unprejudiced jurors. „. . . [A]
conviction cannot stand if even a single juror has been improperly influenced.‟ ”
(People v. Holloway (1990) 50 Cal.3d 1098, 1112.) Jurors must be admonished
not to “form or express any opinion about the case until the cause is finally
submitted to them.” (§ 1122, subd. (b).) Prejudgment “constitute[s] serious
misconduct” (People v. Brown (1976) 61 Cal.App.3d 476, 480), raising a
presumption of prejudice. The presumption is rebutted “if the entire record . . .
indicates there is no reasonable probability of prejudice, i.e., no substantial
likelihood that one or more jurors were actually biased against the defendant.” (In
re Hamilton (1999) 20 Cal.4th 273, 296.) “On appeal, . . . whether jury
misconduct was prejudicial presents a mixed question of law and fact „ “subject to
an appellate court‟s independent determination.” ‟ [Citation.] We accept the trial


8       These two conclusions appear to be a makeweight by the trial court. The
fact that P.P. did not engage in other kinds of misconduct is of little help in
resolving whether the misconduct actually committed was prejudicial.
9      The trial court also cited (1) P.P.‟s testimony that his premature opinion
about guilt was “reinforced” by Bell‟s videotaped hospital interview, which was
played at the end of the trial, and (2) D.A.‟s failure to “articulate any evidence or
opinion” that P.P.‟s misconduct “influenced her [vote] one way or the other.”
Because the parties do not address whether such evidence was inadmissible under
Evidence Code section 1150, we express no opinion on that issue.



                                          12
court‟s factual findings and credibility determinations if supported by substantial
evidence.” (People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).)
       The trial court heard testimony concerning P.P.‟s premature decision to
vote guilty. Some jurors testified P.P. intended to vote guilty on the first ballot;
others testified he intended “to vote guilty no matter what,” indicating an intent to
vote guilty on all ballots, regardless of the views of others. Although these two
accounts are not necessarily inconsistent, the court ultimately found that P.P.
decided to vote guilty initially in order to ensure defendant would not be acquitted
at the outset, but that he thereafter participated in deliberations. The court cited
D.A.‟s tape-recorded statement and L.B.‟s testimony as the most persuasive
evidence of P.P.‟s intent. We defer to this factual finding. Nevertheless, in light
of the uncontroverted evidence of multiple other forms of recurring and serious
misconduct, and applying the proper prejudice analysis, we conclude that the
entire record does not eliminate a reasonable probability of prejudice.
       It is undisputed that P.P. repeatedly talked about the case outside
deliberations. He did so in direct defiance of the trial court‟s repeated
admonitions.10 He discussed the case during his daily commute, at lunch, during
cigarette breaks, in court hallways, and in elevators.11 He telephoned non-
deliberating jurors during deliberations, reporting what was occurring in the jury
room. Multiple jurors testified that, long before the prosecution rested its case,


10     At oral argument, defense counsel noted that the trial court fully
admonished the jury for the first several days of trial. It thereafter reminded the
jury daily to “remember the admonitions.” Given the length of the trial, the jurors
were admonished scores of times.
11      The trial court never made a finding concerning which juror the anonymous
caller had referred to. It did note, however, that P.P. most closely fit the caller‟s
description.



                                          13
P.P. conveyed a belief in defendant‟s guilt. (See People v. Brown, supra, 61
Cal.App.3d at p. 480.) He also told jurors, both before and during deliberations,
that defendant deserved the death penalty, indicating that his mind was made up
regarding guilt. Jurors testified that, on the first day of trial, P.P. stated that Bell‟s
testimony was dispositive on guilt. These statements “require[] neither
interpretation nor the drawing of inferences. [They are] flat, unadorned
statement[s] that [P.P.] prejudged the case long before deliberations began and
while a great deal more evidence had yet to be admitted.” (Grobeson v. City of
Los Angeles (2010) 190 Cal.App.4th 778, 794.)
       There is also no dispute that P.P. prematurely reached a firm conclusion
concerning the veracity of Bell‟s testimony. Indeed, P.P. admitted telling other
jurors before deliberations that he believed Bell. Several jurors testified that, after
hearing Bell‟s testimony on the first day of trial, P.P. said “there should be nothing
else,” “there was no denying Nelva Bell‟s testimony,” and that “he had to believe
what Nelva Bell said.” He expressed these opinions long before the prosecution
finished its case and before the defense was able to present any evidence in
rebuttal.12
       The evidence also establishes that P.P. abandoned the role of an impartial
juror, adopting the mantle of an advocate.13 He repeatedly told the other jurors
that defendant was guilty, that he deserved the death penalty, and that Bell‟s

12     During the guilt phase, the defense focused a substantial part of its own
case on undermining Bell‟s testimony. It noted the lack of physical evidence
implicating defendant, offered evidence that Bell was under the influence of
cocaine during the crimes, and presented expert testimony concerning the
unreliability of eyewitness identification and the effect of crack cocaine on a
user‟s perception.
13    The jurors were instructed to “[r]emember that you are not partisans or
advocates in this matter. You are impartial judges of the facts.”



                                            14
testimony was dispositive. Before deliberations, he explained to T.M. why
defendant was guilty. P.P. said he expected to “battle” D.A. during deliberations
“because they were at opposite sides.” P.P. telephoned L.B. during deliberations,
reporting that “things weren‟t going well” and D.A. was upset. He also told T.M.
that D.A. was angry with him because he thought defendant was guilty.
Consistent with this evidence, the trial court noted that P.P. “was trying to lobby
[the other jurors] to vote guilty before the deliberations even started.” P.P.‟s
conduct was not only improper in itself, it also was inconsistent with his asserted
intent to maintain an open mind during deliberations. Even deferring to the
court‟s conclusion that P.P. only intended to vote guilty on the first ballot to
ensure ongoing deliberations, P.P.‟s transformation from impartial fact finder to
combative advocate before deliberations began is separate and serious
misconduct.14 The court‟s rejection of defendant‟s new trial motion fails to
address this independent source of presumed bias.
       The trial court found that P.P. engaged in serious misconduct. It thereafter
concluded, however, that “[t]here [was] no evidence of actual bias on the part of
[P.P.]” and that his misconduct “[did] not rise to the level that there is a substantial
likelihood [of bias].” This formulation has it backward. Once a court determines
a juror has engaged in misconduct, a defendant is presumed to have suffered
prejudice. (In re Hamilton, supra, 20 Cal.4th at p. 295.) It is for the prosecutor to
rebut the presumption by establishing there is “no substantial likelihood that one
or more jurors were actually biased against the defendant.” (Id. at p. 296.)
       Whether P.P.‟s “misconduct was prejudicial presents a mixed question of
law and fact „ “subject to an appellate court‟s independent determination.” ‟ ”

14     We do not imply that jurors who argue forcefully for an outcome once
deliberations begin act improperly.



                                          15
(Tafoya, supra, 42 Cal.4th at p. 192.) Given the nature, scope, and frequency of
P.P.‟s misconduct, along with his repeated and admitted untruthfulness on a
variety of topics, the People have not discharged their burden. Accordingly, “we
must set aside the verdict, no matter how convinced we might be that an unbiased
jury would have reached the same verdict, because a biased adjudicator is one of
the few structural trial defects that compel reversal without application of a
harmless error standard. [Citation.]” (Nesler, supra, 16 Cal.4th at p. 579.)
                                III. DISPOSITION
       In light of the prejudicial juror misconduct, we reverse the judgment.


                                                  CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.
RUVOLO, J. *




______________________________
*      Presiding Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.




                                         16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Weatherton
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S106489
Date Filed: July 7, 2014
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: James S. Hawkins

__________________________________________________________________________________

Counsel:

Lisa Short and Michael R. Snedeker, under appointments by the Supreme Court, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Adrianne S. Denault, Robin Urbanksi and Daniel Rogers, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael R. Snedeker
Snedeker, Smith & Short
PMB 422
4110 SE Hawthorne Boulevard
Portland, OR 97214-5246
(503) 234-3584

Daniel Rogers
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2283
