Filed 8/3/17

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FOURTH APPELLATE DISTRICT

                                    DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                 E065257

v.                                                (Super.Ct.No. FVI1102762)

MOSES MANUEL ECHAVARRIA,                          OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,

Judge. Reversed.

        Allison H. Ting, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha

Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.




                                           1
       A jury found defendant and appellant Moses Manual Echavarria, guilty of

(1) first degree murder (Pen. Code, § 187, subd. (a))1; and (2) assault with a firearm

(§ 245, subd. (a)(2)). The jury found true the allegations that, during the murder,

defendant personally and intentionally discharged a firearm causing death (§ 12022.53,

subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)). The jury also found

true the allegation that, during the assault, defendant personally used a firearm.

(§ 12022.5, subds. (a) & (d).)2

       Defendant moved the trial court for a new trial due to alleged juror misconduct.

(§ 1181.) The trial court denied defendant’s motion. The court sentenced defendant to

prison for a determinate term of two years six months, and an indeterminate term of 50

years to life.

       Defendant raises four issues on appeal. First, defendant contends the trial court

erred by denying his motion for a new trial. Second, defendant contends the prosecutor

erred by arguing the intent required for premeditated first degree murder is akin to

choosing a beverage or a meal. Third, in the alternative, defendant asserts his trial

counsel was ineffective for failing to object to the prosecutor’s argument about intent.

Fourth, defendant asserts the trial court erred when it concluded the assault sentence

must be served consecutive to the murder sentence. We reverse the judgment.

       1All subsequent statutory references will be to the Penal Code unless otherwise
provided.

       2  The foregoing verdicts were rendered during defendant’s second trial. At
defendant’s first trial, the jury deadlocked on the murder and assault charges and the
trial court declared a mistrial.


                                             2
                   FACTUAL AND PROCEDURAL HISTORY

      A.     PROSECUTION’S CASE

      Donald Allen Woodward, Sr., was defendant’s mother’s boyfriend. Woodward

had a construction business—he performed stucco work. On one occasion, Woodward

worked as a subcontractor for defendant’s construction company. Woodward and

defendant agreed Woodward would perform stucco work on a house in Barstow for

$2,200. Woodward expected to be paid approximately one week after he completed his

work, but he was not paid.

      Woodward called defendant once or twice per week to ask about the payment.

On one occasion, defendant’s wife called Woodward and asked for receipts for material

and labor expenses. Approximately three weeks after the stucco work was completed,

defendant paid Woodward $1,000.

      At Thanksgiving, Woodward spoke to defendant in person. Defendant told

Woodward that defendant was paid $1,600 for the stucco work. Defendant was unsure

if or when Woodward would receive the remaining $1,200. Woodward offered to work

out a payment plan with defendant. The conversation ended in a friendly manner.

      After the Thanksgiving conversation, Woodward continued calling defendant

approximately once per week to collect the $1,200. On December 3, 2011, Woodward

went to the home in Barstow where the stucco work had been performed to speak to the

homeowner. On December 4, Woodward spoke to the homeowner’s son on the

telephone. Woodward asked the son if Woodward’s stucco work was unsatisfactory.




                                          3
The son explained that the stucco work was acceptable and that he believed the bill had

been paid in full.

       After the conversation ended, when Woodward was on his way home, he saw his

friend, Andrew Battaglia, who lived on the same street as Woodward. Battaglia was in

front of his (Battaglia’s) house. Battaglia also performed construction work.

Woodward stopped to speak with Battaglia. While Woodward was at Battaglia’s home,

defendant called Woodward. Woodward spoke to defendant on speakerphone, and

Battaglia was nearby.

       Defendant was “ranting and raving” about Woodward contacting the Barstow

homeowner and son directly. Defendant said Woodward “violat[ed defendant’s] job

site.” Woodward explained he contacted the homeowner to find out why the bill had

not been paid in full. During the phone call, defendant faulted Woodward for not giving

him an invoice for the stucco work.

       Defendant told Woodward to meet him at Hesperia Lake. Defendant told

Woodward to come alone. Woodward refused because it was dark outside. Woodward

suggested the two meet at a well-lit public place because “[n]obody is going to do

nothing stupid there.” Defendant continued to demand Woodward meet him by himself

at Hesperia Lake. Ultimately, defendant, who was angry, told Woodward to come to

defendant’s house. Woodward agreed to meet defendant at defendant’s house.

Woodward believed he was meeting defendant in order to give defendant an invoice.

       Battaglia had an invoice book in his truck. Battaglia retrieved a blank invoice for

Woodward. Woodward completed the invoice. Eric Brabant arrived at Battaglia’s


                                            4
house for the purpose of having dinner with Battaglia. Woodward, Battaglia, and

Brabant left Battaglia’s house. The three stopped and picked up Lee Keohi, who was

Battaglia’s friend.

       The four men stopped at a liquor store where Woodward purchased an 18-pack

of beer. The men then continued to defendant’s apartment; they did not drink the beer

while driving to defendant’s apartment. The men’s car was parked across the street

from defendant’s apartment, which is on a two-lane road. When the men arrived,

Woodward saw defendant exiting the apartment. Defendant said to Woodward, “‘I told

you to come alone, mother fucker.’” Woodward responded that he was alone, because

he was the only person exiting the car.

       As Woodward walked toward defendant, while Woodward was in the middle of

the street, defendant pointed a gun at Woodward. Defendant said he would “blow

[Woodward’s] fucking head off.” Woodward had not noticed a gun when he initially

saw defendant exiting the apartment. Woodward believed defendant must have been

holding the gun behind him as he exited the apartment.

       Woodward did not believe defendant would shoot anyone. Woodward continued

walking toward defendant in order to give defendant the invoice. Defendant struck

Woodward with the gun. Woodward fell to the ground. When Woodward fell,

Battaglia exited the vehicle and ran toward Woodward. Brabant and Keohi remained in

the vehicle. When Battaglia reached Woodward, he squatted, grabbed Woodward’s

shirt, and attempted to move Woodward away from defendant.




                                           5
       “[A]ll of a sudden,” after Battaglia crouched down, defendant shot Battaglia.

Battaglia stood up, then fell to the ground. “Seconds” passed between Battaglia

squatting down and defendant shooting Battaglia. Defendant went inside his apartment.

Battaglia died due to the gunshot. The bullet entered Battaglia’s chest, near his

shoulder, and traveled in a downward trajectory in Battaglia’s body. Such a trajectory

was possible if the shooter was standing and the victim was crouching down at the

shooter’s knees and bending forward at the waist. There was no gunpowder on

Battaglia’s shirt, which indicated Battaglia was more than three feet away from

defendant when defendant shot him.

       B.     DEFENDANT’S CASE

       Defendant testified at his trial. Defendant spoke to Woodward on December 4 at

6:08 p.m. Woodward was angry during the phone call. Woodward told defendant “he

was going to get his money one way or another, even if he had to kill [defendant].”

Defendant suggested Woodward meet him at Hesperia Lake in order for Woodward to

give defendant an invoice. Defendant planned to go to Big Bear with his family on the

evening of December 4 followed by fishing at Hesperia Lake, in order to celebrate

defendant’s birthday, thus defendant and his family would be at the lake if Woodward

stopped by.

       Woodward declined meeting at Hesperia Lake. Woodward suggested meeting at

a local restaurant. Defendant declined. Defendant suggested meeting at the sheriff’s

station, but Woodward declined. Defendant suggested meeting at defendant’s house.




                                            6
No time was scheduled for the meeting. Defendant did not recall telling Woodward to

come to the meeting alone.

       Defendant stayed home on December 4; he did not go to Big Bear or Hesperia

Lake due to the situation with Woodward. After Woodward and defendant spoke on the

telephone, defendant noticed three vehicles drive by his house. Defendant lived on a

street with a lot of traffic. The first vehicle lingered for a while, drove by defendant’s

house slowly, and the driver looked at defendant suspiciously. The second vehicle

belonged to a friend of Woodward. The third vehicle stopped in front of defendant’s

driveway, the driver lowered a window and then stared at defendant.

       Defendant was alarmed and scared due to the phone call from Woodward and the

people driving by his house. When Woodward arrived at defendant’s house at

approximately 8:00 p.m., defendant placed his gun in his back pocket. It was dark

outside when Woodward arrived, but defendant could see Woodward was with other

people.

       Defendant exited his house, and walked toward Woodward. Woodward grabbed

the back of defendant’s shirt and said, “Let’s do this, mother fucker.” Defendant struck

Woodward with his hand—defendant was not holding the gun. Woodward fell to the

ground. A third person then punched defendant’s face. Multiple people surrounded

defendant and proceeded to punch and kick defendant. Defendant was punched and

kicked all over his body.

       Defendant could hear his daughter screaming. Defendant feared for his life and

the lives of his wife and children. Defendant removed the gun from his pocket, and in


                                             7
the process of moving it, the gun fired. Defendant was not aiming the gun when it fired

and he did not intend to shoot anyone when it fired. After the gun fired, everyone

dispersed. Defendant went inside his apartment. Defendant bled “pretty good” from his

nose, mouth, and lips as a result of the beating. Defendant did not wash his face prior to

law enforcement arriving at his house. A photograph of defendant did not show any

blood from a nose injury. Defendant had blood on his boot.

       C.     PEOPLE’S REBUTTAL

       San Bernardino County Sheriff’s Sergeant Johnson spoke with defendant at the

sheriff’s station on December 4. Defendant was asked about injuries he sustained.

Defendant complained of a bloody nose, bloody lip, and sore wrist. Sergeant Johnson

noticed “one small dot or mark on [defendant’s] upper lip.” During the booking

process, defendant lifted his shirt to reveal his tattoos. At that time, Sergeant Johnson

did not see any bruises, scratches, or redness on defendant’s arms, back, torso, or face.

After defendant was transported to jail, Sergeant Johnson observed defendant change

clothes. Defendant did not have any bruises, scratches, or marks on his legs.

                                      DISCUSSION

       A.     MOTION FOR NEW TRIAL

              1.     PROCEDURAL HISTORY

                     a)     Motion

       Defendant filed a motion for new trial. In the motion, defendant asserted the jury

committed misconduct by considering extraneous information about punishment when

deciding whether the killing constituted first or second degree murder.


                                             8
         A declaration by Juror-123 was attached to the motion. Juror-12 declared that,

on the second day of deliberations, a juror, possibly Juror-3, said she had worked in a

prison and that defendant “could ‘walk tomorrow’ with time served” if he were

convicted of second degree murder, but he “would be far less likely to get time served

on a conviction for first degree murder.” A different juror, possibly Juror-2, responded

by saying, “‘I don’t want that.’” In the next vote, the juror who had said, “‘I don’t want

that,’” changed his vote to select first degree murder. Juror-12 told his/her fellow jurors

that information about defendant receiving credit for time served had not come from the

court, and therefore should not be considered. Later that morning, four or five more

jurors changed their votes to first degree murder.

                      b)     Opposition

         The People opposed defendant’s motion. The People asserted Juror-12’s

declaration lacked information about what occurred between Juror-3’s statement and

fellow jurors changing their votes. The People noted that on the second day of

deliberations, the jury asked for testimony to be read back, viewed an exhibit, and

continued deliberating throughout the day and into a third day. The People contended

Juror-12 was speculating that Juror-3’s statement caused the jurors to change their

votes.




         3
        In the record, jurors are identified by both their juror numbers and their seat
numbers. In this opinion, we use the jurors’ seat numbers when identifying the jurors.


                                             9
                     c)     Hearing

       The trial court held a hearing in which all 12 jurors testified.4 All the jurors

denied having said defendant would not be sufficiently punished unless he were

convicted of first degree murder.

       Juror-1 recalled that another juror, during deliberations, said defendant might not

be sufficiently punished unless he were convicted of first degree murder. Juror-1 did

not hear another juror say the information should not be considered. Juror-2 did not

recall hearing anyone say defendant might not be sufficiently punished unless he were

convicted of first degree murder. Juror-3, Juror-4, Juror-5, Juror-6, Juror-7, Juror-8, and

Juror-9, denied hearing anyone say defendant would not be sufficiently punished unless

he were convicted of first degree murder.

       Juror-10 said the jury discussed punishment during their deliberations. Juror-10

believed a fellow juror may have estimated the length of the prison terms for first

degree murder and second degree murder. The juror who spoke about prison terms said

a second degree murder conviction could cause defendant to have “a short sentence

compared to first degree.” Juror-10 recalled that another juror said the jury was not to

consider information that came from outside the court.

       Juror-11 heard a fellow juror, during deliberations, say defendant may not be

sufficiently punished if defendant were convicted of second degree murder. Juror-11,

       4 We exclude from our presentation of the facts statements that relate solely to
the mental processes of the jurors because such information cannot be considered.
(People v. Danks (2004) 32 Cal.4th 269, 302; In re Stankewitz (1985) 40 Cal.3d 391,
402 (Stankewitz); People v. Nesler (1997) 16 Cal.4th 561, 584.)


                                             10
who was the jury foreperson, immediately responded that the jury should not consider

information from outside the court.

       Juror-12 heard a fellow juror, during deliberations, say defendant may not be

sufficiently punished if defendant were convicted of second degree murder. Juror-12

did not hear another juror say such information should not be considered.

       The trial court said it believed, based upon the evidence, “there was some

discussion” during the jury’s deliberations—implying the court found the jury did

discuss the length of possible prison terms. The court said the next issue is “what does

that mean?” The court suggested the attorneys submit supplemental points and

authorities.

                     d)     Supplement to Defendant’s Motion

       Defendant submitted a supplement to his motion. A declaration by defendant’s

wife (Wife) was included in the supplement. Wife declared that she was sitting in the

courthouse hallway when the jurors were being examined. Wife saw one of the jurors,

one of the first to be examined, exit the courtroom. The juror then told the other jurors

“‘just say no’ to the questions.” Wife did not realize the importance of this statement

until she spoke to defendant’s attorney at a later date. A declaration by defendant’s

sister was also attached to the supplement. Defendant’s sister was also present in the

hallway and heard the juror tell the other jurors to respond “‘no’” to the court’s

questions. Defendant asserted the declarations showed the jurors who denied hearing a

statement about punishment during deliberations may not have been honest.




                                            11
                     e)     Supplement to Opposition

       The prosecutor submitted a supplement to the opposition. The prosecutor

asserted any misconduct was not prejudicial. The prosecutor asserted “only a few

jurors” recalled hearing a comment about punishment, and both Juror-11 and Juror-12

said they told their fellow jurors such outside information should not be considered.

The prosecutor asserted that under these facts prejudice was not shown.

                     f)     Hearing

       The trial court held a hearing on defendant’s motion. Defense counsel asserted

the juror who told the other jurors to respond “no” to the court’s questions was the same

juror who stated defendant would not serve prison time if convicted of second degree

murder. The prosecutor asserted there was nothing sufficiently identifying the juror(s)

who made the complained-of remarks. The trial court found defendant received a fair

trial and denied defendant’s motion. The trial court did not state its reasons for

concluding defendant received a fair trial.

              2.     ANALYSIS

                     a)     Contention

       Defendant asserts the trial court correctly found the jurors discussed the length of

defendant’s possible prison terms, but the trial court erred by concluding the trial was

fair. The People concede juror misconduct occurred, but assert the presumption of

prejudice was successfully rebutted.

       It is unclear whether the trial court found misconduct occurred. The trial court

found a discussion about sentencing took place amongst the jurors and the court


                                              12
concluded defendant’s trial was fair. It is possible the court found the discussion did not

rise to the level of misconduct. It is also possible the court found the discussion

constituted non-prejudicial misconduct. Because the People concede misconduct

occurred, we will focus our analysis on the issue of prejudice.

                     b)     Law

       The law concerning prejudice lacks clarity. In some cases, there is a focus on the

presumption of prejudice that arises when misconduct is found. In those cases, the

analysis concerns whether the prosecutor has successfully rebutted the presumption of

prejudice. (In re Malone (1996) 12 Cal.4th 935, 964 [“The People have successfully

rebutted the presumption of prejudice”]; Stankewitz, supra, 40 Cal.3d at p. 402 [the

People’s rebuttal “falls far short of the mark”]; In re Hitchings (1993) 6 Cal.4th 97, 123

(Hitchings)[“presumption of prejudice that stands unrebutted”]; People v. Weatherton

(2014) 59 Cal.4th 589, 600 [prosecutor must rebut the presumption].)

       Yet, in other cases, the focus is on the need for a showing of substantial prejudice

and whether it has been shown the prejudice was sufficiently substantial. (People v.

Mendoza (2000) 24 Cal.4th 130, 167 [“Nor has he shown that if such a discussion

occurred, he suffered prejudice”]; People v. Ramos (2004) 34 Cal.4th 494, 521 (Ramos)

[“We find no substantial likelihood that the article influenced the jury negatively”].)

       Our understanding of the law is as follows: Juror misconduct raises a

presumption of prejudice. The People may rebut the presumption by showing no

prejudice actually resulted from the misconduct. (Hitchings, supra, 6 Cal.4th at p. 118.)

If the People fail in their rebuttal, then prejudice exists. The appellate court must then


                                             13
examine the entire record to determine if “‘“there is a reasonable probability of actual

harm to the [defendant] resulting from the misconduct.”’” (Id. at p. 119.) If the

reviewing court finds there is not a substantial likelihood of harm then there is no need

for a new trial. (People v. Hardy (1992) 2 Cal.4th 86, 174 [reviewing court examines if

there is a substantial likelihood of harm].)

       The prejudice analysis raises mixed questions of law and fact. The trial court’s

factual findings are accepted if they are supported by substantial evidence. The trial

court’s ultimate finding concerning prejudice is reviewed de novo. (Ramos, supra, 34

Cal.4th at p. 520.)

                      c)     Rebuttal of the Presumption

       The “presumption of prejudice ‘“may be rebutted by an affirmative evidentiary

showing that prejudice does not exist.”’” (Hitchings, supra, 6 Cal.4th at p. 119; People

v. Jackson (2016) 1 Cal.5th 269, 332.) In regard to the amount of affirmative evidence

that is needed, the amount appears to vary depending on the specific facts of the case—

the greater the misconduct, the more affirmative evidence that must be shown to rebut

the presumption of prejudice.

       On the far end of the scale, where there is no misconduct and no rebuttal

evidence is needed, our Supreme Court has written that juror comments speculating on

punishment are “an inevitable feature of the jury system,” and are not misconduct.

(People v. Dykes (2009) 46 Cal.4th 731, 812 (Dykes); see also People v. Schmeck

(2005) 37 Cal.4th 240, 306-307, abrogated on other grounds in People v. McKinnon

(2011) 52 Cal.4th 610, 636, 642.)


                                               14
        In Dykes, during death penalty deliberations, the jurors commented on instances

they had heard of where people had been sentenced to life without the possibility of

parole, but were ultimately released from prison. Some jurors “‘said that if they gave

[the defendant] the death penalty, it was possible that he would never get executed, but

it would certainly be harder for him to get out of jail and certainly a harder

punishment.” (Dykes, supra, 46 Cal.4th at p. 808, fn. 21.) One juror told the other

jurors it was inappropriate to consider those ideas and they should treat the death

penalty as possibly resulting in the defendant being executed within a short period of

time. (Ibid.) The court found the jury did not engage in misconduct because

discussions about penalties are “an inevitable feature of the jury system.” (Id. at p.

812.)

        Moving toward the middle of the scale are cases where the discussion of

extraneous information constituted misconduct, but the misconduct was determined to

be nonprejudicial. (People v. Loker (2008) 44 Cal.4th 691, 750; People v. Tafoya

(2007) 42 Cal.4th 147, 193.) In Loker, the jurors discussed the cost to taxpayers for a

sentence of life in prison without the possibility of parole versus the cost of the death

penalty. The foreperson reminded the jury not to consider such ideas. The jury’s

discussion constituted misconduct, but it was not prejudicial because the discussion was

brief and the foreperson admonished the jury. (Loker, at p. 750.)

        Moving to the far/other end of the scale there are cases where the misconduct has

been found to be prejudicial. (Stankewitz, supra, 40 Cal.3d 391; People v. Honeycutt

(1977) 20 Cal.3d 150, 158.) In Stankewitz, one juror, on several occasions, advised his


                                             15
fellow jurors “that he had been a police officer for over 20 years; that as a police officer

he knew the law; that the law provides a robbery takes place as soon as a person

forcibly takes personal property from another person, whether or not he intends to keep

it; and that as soon as [the defendant] took the wallets at gunpoint in this case he

committed robbery, whether or not he intended to keep them.” (Stankewitz, at pp. 396,

400.)

        The Supreme Court explained the presumption of prejudice is “stronger when, as

here, the misconduct goes to a key issue in the case.” (Stankewitz, supra, 40 Cal.3d at

p. 402.) The court concluded the People failed to rebut the presumption of prejudice

because the People did not provide affirmative evidence that the jurors’ deliberations

were not affected by the misconduct. (Id. at pp. 402-403.)

        Our review of the foregoing cases leads us to the following understanding. The

gravity of the misconduct correlates with the amount of proof necessary to rebut the

presumption of prejudice. The seriousness of the misconduct can be evaluated by

looking at (1) whether the jury was discussing an issue within the scope of their duties,

e.g., discussing sentence information during penalty deliberations or during guilt

deliberations; (2) whether the extraneous information appeared to come from a person

with authority, e.g., a police officer; (3) whether it was an abstract discussion or if the

defendant was discussed directly, e.g., an abstract discussion about the cost of

imprisonment versus a discussion about imprisoning the defendant; and (4) the length of

the discussion concerning the extraneous information.




                                             16
       First, in the instant case, extraneous information about sentencing was discussed

during the guilt phase of the proceedings. In the context of this case, that factor raises

the seriousness level of the misconduct because at least one juror was using irrelevant

sentencing information to determine guilt. Second, the extraneous information was

presented by a person who appeared to have some authority on the subject. The juror

claimed her knowledge was derived from experience working in a prison.5 This also

raises the seriousness level of the misconduct.

       Third, the discussion was personal to defendant. The juror said “[Defendant]

could ‘walk tomorrow’ with time served,” if he were convicted of a crime less than first

degree murder. It was not an abstract discussion about prison credits. This factor also

increases the seriousness level of the misconduct. Fourth, the discussion appears to

have been brief. The juror made the statement about punishment. Another juror

responded, “‘I don’t want that.’” Then the foreperson and/or Juror-12 reminded the

jurors not to consider such information. The brevity of the discussion lessens the

seriousness level of the misconduct.

       The People contend they successfully rebutted the presumption of prejudice. The

People assert the jury was instructed to base its verdict only on the evidence received at

trial, and that when the comment about punishment was made, the jury foreperson

immediately reminded the jurors not to consider extraneous information. “[J]ury


       5  During voir dire, Juror-3 said she had worked at the Victor Valley Medium
Correctional Facility. Juror-3 explained that the facility is a level-3/level-4 private
prison in Adelanto.


                                             17
misconduct raises a presumption of prejudice; and unless the prosecution rebuts that

presumption by proof that no prejudice actually resulted, the defendant is entitled to a

new trial.” (People v. Pierce (1979) 24 Cal.3d 199, 207.)

       The problem with the People’s evidence is that Juror-1 heard the statement about

punishment, but did not hear anyone say such information should not be considered.

Given the seriousness of the misconduct, the People need to provide more evidence to

affirmatively show no prejudice occurred. Reliance on an admonition that was not

heard by all the jurors is insufficient.

       The People also rely on the instruction given by the trial court informing the

jurors that they are not to consider punishment. The People’s reliance on this

instruction is problematic. The People have conceded misconduct occurred. Thus, the

People have conceded the jurors violated this instruction. Pointing to the instruction

that was violated as proof that prejudice did not arise from the violation is unpersuasive

because, since the People concede there was misconduct, the jurors did not follow the

instruction.

       The People rely on People v. Leonard (2007) 40 Cal.4th 1370, to support their

position. In Leonard, during penalty deliberations, the jurors discussed the premise that

it is more expensive for taxpayers to keep a person in prison for life than to sentence the

person to death. The foreperson reminded the jurors that it was improper to consider

such a premise. The high court, without an explanation, concluded that if the comments

were improper, the error was harmless. The implication is that the foreperson’s

admonition cured any harm. (Id. at p. 1426.)


                                            18
       The instant case is distinguishable from Leonard. In Leonard, the jury was

discussing sentencing during penalty deliberations. In the instant case, the jury was

using sentencing information to decide issues of guilt. In Leonard, the jury had an

abstract discussion about the cost of life imprisonment versus the death penalty. In the

instant case, the jury discussed how defendant, in particular, would not serve a prison

term if he were convicted of anything less than first degree murder. Also, in the present

case, the information about sentencing came from a person who claimed to have

knowledge of the subject based upon experience working in a prison.

       The seriousness of the misconduct in the present case is greater than in Leonard.

As a result, an admonition by the foreperson is not sufficient to rebut the prejudice in

this case, especially when the admonition was not heard by all the jurors who heard the

statement about punishment.

       The problem the People are confronting on appeal is that the prosecutor did not

elicit sufficient information to rebut the presumption of prejudice. The prosecutor

perhaps should have asked questions about timing of the votes. For example, was the

statement about punishment made within five minutes of the next vote when the juror

who said, “‘I don’t want that’” changed his vote, or was it two hours later. The lack of

evidence offered by the People means there has not been a rebuttal of the presumption

of prejudice.

                     d)     Substantial Prejudice

       We now examine whether the prejudice is substantial. There are two methods

for measuring prejudice: (1) inherent prejudice, and (2) actual bias. If either test shows


                                            19
substantial prejudice, then the judgment must be reversed. (Danks, supra, 32 Cal.4th at

p. 303.)

                             i)     Inherent Prejudice

       The first test concerns inherent prejudice. It examines whether “‘the extraneous

information was so prejudicial in context that its erroneous introduction in the trial itself

would have warranted reversal of the judgment.’” (Danks, supra, 32 Cal.4th at p. 303.)

       “In a criminal case, improper reference to penalty or punishment is generally

held reversible because such references are irrelevant, the jury is likely to be misled in

determining the issue of guilt or innocence upon the basis of such improper

considerations, and, if permitted, it would lead to involvement in collateral matters the

probative value of which, if any, would be far outweighed by the prejudicial effect

thereof.” (People v. Allen (1973) 29 Cal.App.3d 932, 936-937; see also People v.

Allison (1989) 48 Cal.3d 879, 892 [“A defendant’s possible punishment is not a proper

matter for the jury’s consideration in determining guilt or innocence”]; see also Shannon

v. U.S. (1994) 512 U.S. 573, 579 [“providing jurors sentencing information invites them

to ponder matters that are not within their province, distracts them from their factfinding

responsibilities, and creates a strong possibility of confusion”].)

       If, during trial, it had been said that only a conviction for first degree murder

would result in a prison sentence of any significance, admission of the statement would

be error because the statement would cause the jury to consider the irrelevant issue of

punishment when determining guilt or innocence. In other words, the evidence would

be prejudicial because it risks the jury confusing its task of fact-finding with the court’s


                                             20
task of sentencing defendant. The evidence would have no probative value because the

jury is not tasked with sentencing defendant. Accordingly, it would have been error to

admit such a statement.

       When a court errs by admitting evidence that is more prejudicial than probative

(Evid. Code, § 352), we examine whether the error is harmless. Because the error in

this case ultimately concerns defendant’s right to an impartial jury, we apply the federal

standard. (People v. Gonzales (2011) 51 Cal.4th 894, 924.) In applying that standard,

we examine whether, beyond a reasonable doubt, the error did not contribute to the

conviction. (Chapman v. California (1967) 386 U.S. 18, 24.) Stated differently,

whether, beyond a reasonable doubt, the error was not substantially likely to have

influenced a juror. (See People v. Jackson, supra, 1 Cal.5th at p. 332 [“substantially

likely”]; see also In re Carpenter (1995) 9 Cal.4th 634, 653 [the test “is analogous to the

general standard for harmless error analysis”].) We limit our harmless error analysis to

the trial portion of the record—excluding the posttrial record. (Danks, supra, 32 Cal.4th

at p. 303 [review the trial record].)

       The prosecutor argued defendant premeditated the killing of Battaglia by arming

himself with a gun, taking the gun from his pocket, pointing the gun at Battaglia, and

firing the gun. The prosecutor did not argue transferred intent, i.e., it was not argued

that defendant premeditated the murder of Woodward and accidentally shot Battaglia.

(See People v. Shabazz (2006) 38 Cal.4th 55, 62-63 [transferred intent].) The

prosecutor asserted defendant premeditated the murder of Battaglia.




                                            21
       The theory of premeditation as it relates to Battaglia is weak. “‘A verdict of

deliberate and premeditated first degree murder requires more than a showing of intent

to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in

forming a course of action; “premeditation” means thought over in advance.’” (People

v. Casares (2016) 62 Cal.4th 808, 824.)

       There is no evidence indicating defendant knew Battaglia would be coming to

defendant’s house, such that defendant was preparing to kill Battaglia or reflecting on

killing Battaglia prior to Battaglia’s arrival at the house; the theory of premeditation is

that it occurred in the moment.

       The most favorable evidence for premeditation and deliberation is Keohi’s

testimony that from the time Battaglia exited the car, until the time that defendant shot

Battaglia, “a couple of minutes” passed. In interpreting the evidence in a manner

favorable to finding premeditation and deliberation, one can infer that as Battaglia was

running toward Woodward, defendant continued to strike or attempted to strike

Woodward; when Battaglia arrived to Woodward’s side, Battaglia pushed defendant

away; Battaglia crouched down, and defendant shot Battaglia. Brabant estimated that

seconds passed between Battaglia crouching down and defendant shooting Battaglia.

       Within that sequence of events, there is little evidence demonstrating a moment

of reflection—where defendant paused and reflected upon killing Battaglia. The

evidence reflects an intent to kill, but the evidence of premeditation and deliberation is

weak. Due to the weak evidence concerning premeditation and deliberation, we cannot

conclude the evidence is overwhelming, such that the erroneous admission of


                                             22
information about sentencing is harmless beyond a reasonable doubt. In other words,

given the weak evidence of deliberation and premeditation, it is possible the sentencing

information caused a juror to vote for first degree murder—not the evidence.

       The statement about punishment, if it had been introduced at trial, would have

necessitated reversal of the judgment. As a result, the misconduct is inherently

prejudicial.

                            ii)     Actual Bias

       As explained ante, there are two methods for measuring prejudice. If either test

results in a finding of substantial prejudice, then the judgment must be reversed.

(Danks, supra, 32 Cal.4th at p. 303.) For the sake of thoroughness, we address the

second test: actual bias. (Ramos, supra, 34 Cal.4th at p. 519.)

       Under the actual bias test, a court examines whether “from the nature of the

misconduct and surrounding circumstances, it is substantially likely a juror ‘was

actually biased’ against the defendant.” (Ramos, supra, 34 Cal.4th at p. 519.) “[A]ctual

bias supporting an attack on the verdict is similar to actual bias warranting a juror’s

disqualification.” (People v. Nesler, supra, 16 Cal.4th at p. 581.) “The term ‘actual

bias’ may include a state of mind resulting from a juror’s actually being influenced by

extraneous information about a party.” (Ibid.) A juror is actually biased by extraneous

information when s/he is unable to put aside the extrajudicial information and render a

verdict based solely upon the evidence received at trial. (Id. at p. 583.) “[A] conviction

cannot stand if even a single juror has been improperly influenced.” (People v. Pierce,




                                            23
supra, 24 Cal.3d at p. 208.) We review the entire record when analyzing the issue of

actual bias. (People v. Danks, supra, 32 Cal.4th at p. 303.)

       A juror, possibly Juror-3, said during deliberations that she worked in a prison

and therefore knew that if defendant were convicted of a crime less than first degree

murder then he “could ‘walk tomorrow’ with time served,” but if defendant were

convicted of first degree murder then he “would be far less likely to get time served.”

Another juror, possibly Juror-2, immediately said, “‘I don’t want that.’” In the next

round of voting, the juror who said, “‘I don’t want that’” changed his vote to first degree

murder.

       If the juror who made the statement about punishment were not influenced by her

experience working in a prison, then she would not have shared the punishment

information with jurors. Juror-12 felt there was hostility toward “anyone not signing up

for first degree murder.” One juror, possibly Juror-2, said “‘I don’t want that’” and

changed his vote to first degree murder following the statement about punishment.

Thus, it can be inferred that the statement about punishment was made in an attempt to

convince other jurors to vote for first degree murder. It can reasonably be concluded

that the information about punishment was shared to ensure defendant would receive the

greatest amount of punishment, regardless of guilt. Therefore, there was exhibited bias

against defendant.

       The record reflects a substantial likelihood that the juror who made the statement

about punishment was actually influenced by her experience of working in a prison,

which caused her to be unable to render a verdict based solely upon the evidence


                                            24
received at trial, given that she shared the sentencing information with other jurors. The

juror wanted to ensure defendant received the greatest possible sentence, which required

a conviction for first degree murder, regardless of the evidence. (See People v. Nesler,

supra, 16 Cal.4th at p. 583 [juror would not have used extraneous information to

influence other jurors if the juror were not influenced by the extraneous information

herself]; see also People v. Hord (1993) 15 Cal.App.4th 711, 728 [“For example, if a

juror were to say, . . . ‘[W]e will have to find the defendant guilty of the greatest charges

to ensure he will be adequately punished,’ . . . [s]uch [a] comment[ is] more likely to

influence that juror and other jurors”].) In sum, actual bias has been shown.

                     e)      Summary

       The People concede there was juror misconduct. The People failed to rebut the

presumption of prejudice. The prejudice is substantial because it is inherent and reflects

actual bias. Accordingly, the trial court erred by denying defendant’s motion for a new

trial. Due to the jury misconduct, all of defendant’s convictions and enhancements must

be reversed. (See People v. Weatherton, supra, 59 Cal.4th 589, 590, 601 [all

convictions reversed due to juror misconduct].)

       B.     REMAINING CONTENTIONS

       Defendant asserts (1) the prosecutor committed misconduct; (2) if the

prosecutorial misconduct issue was forfeited, then his trial counsel was ineffective; and

(3) the trial court made a sentencing error. We have concluded ante that the judgment

must be reversed. As a result, we can provide defendant no further relief by examining




                                             25
the remaining issues. The remaining issues are moot. (People v. Travis (2006) 139

Cal.App.4th 1271, 1280.)

                                       DISPOSITION

      The judgment is reversed.

      CERTIFIED FOR PUBLICATION


                                                     MILLER
                                                                                    J.


We concur:


McKINSTER
                      Acting P. J.


SLOUGH
                                  J.




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