Filed 6/8/17




       IN THE SUPREME COURT OF CALIFORNIA


In re STEVEN M. BELL                )
                                    )
           on Habeas Corpus.        )                              S151362
                                    )
____________________________________)


        Steven M. Bell, who is under sentence of death for the first degree
robbery-murder of Joey Anderson, petitioned this court for writ of habeas corpus
claiming, among other things, that a holdout juror in the penalty deliberations
solicited her husband‘s advice regarding her vote and, based on that advice,
switched her vote to a death sentence. We issued an order to show cause on this
claim of juror misconduct and ordered an evidentiary hearing before a referee in
the superior court. After hearing testimony, the referee found the alleged
misconduct did not occur.
        We conclude the referee‘s findings are supported by substantial evidence
and entitled to this court‘s deference. Because no misconduct has been proven, we
will discharge the order to show cause and, by separate order, deny Bell‘s petition
for writ of habeas corpus.
                    FACTUAL AND PROCEDURAL BACKGROUND
        Petitioner Bell‘s trial for the killing of Joey Anderson was conducted in
October through December of 1993 in San Diego County Superior Court.
Petitioner was convicted of first degree murder with a robbery-murder special




                                          1
circumstance (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17)) and, in March 1994,
was sentenced to death for the crime.
       We affirmed Bell‘s conviction and sentence in People v. Bell (2007) 40
Cal.4th 582. Our appellate opinion recites the facts of the crime, which are not
pertinent to the jury misconduct claim at issue here. In very brief summary,
petitioner fatally stabbed Joey, the 11-year-old son of petitioner‘s girlfriend, while
stealing a television and boom box belonging to Joey and his mother; petitioner
then sold the appliances to get money for crack cocaine.
       In his habeas corpus petition filed in this court in 2009, petitioner claimed
Juror M.H. committed misconduct during the deliberations on penalty by
consulting with her husband over how she should vote. Support for the allegation
came from the declaration of another juror, P.R. According to P.R.‘s 2009
declaration, she and M.H. initially voted for a life sentence and eventually were
the only holdouts against the majority, which voted for death. The declaration
continues: ―On the last day of deliberations, [M.H.] approached me in the hallway
before we entered the jury room and confessed that she had broken down and
spoken to her husband about her dilemma the night before, to see if he could help
her out of her dilemma, and he advised her to change her vote.‖ M.H. and P.R.
both changed their votes to death.
     The petition also included a declaration by M.H., who remembered little of
the penalty phase deliberations. As to the allegation of misconduct, M.H.
declared, ―I do not recall if I voted for death at the beginning of deliberations, or
not until the end of deliberations, and I do not recall telling [P.R.] on the day we
reached our penalty verdict that I had spoken to my husband the night before and
then decided to change my vote from life to death. Susan Lake [the investigator
for petitioner‘s counsel] asked me about this specifically, and I told her that I do
not recall speaking to my husband and [P.R.].‖

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       We issued an order to show cause on this claim of jury misconduct and,
after receiving the People‘s return and petitioner‘s traverse, ordered the San Diego
County Superior Court to appoint a referee and conduct an evidentiary hearing on
specified factual questions:
       (1) Did Juror M.H. discuss the jury‘s deliberations, or any other aspect of
the case, with her husband during her service as a juror?
       (2) If so, when did the conversation(s) occur?
       (3) What information or advice, if any, did M.H.‘s husband give M.H.?
       (4) Did M.H. tell Juror P.R. about a conversation between M.H. and her
husband?
       (5) If so, when and what did M.H. tell P.R. about that conversation?
       At the evidentiary hearing in September 2015, P.R. first testified that ―as I
sit here now‖ she did not recall speaking with M.H. during the Bell deliberations
about a conversation M.H. had with anybody else about the case. But in light of
her 2009 declaration, which she had reviewed, she later recalled M.H. saying
something to her, though her memory was not of the detailed conversation
recounted in the declaration. As P.R. remembered it at the time of the hearing, as
they were entering the jury room M.H. ―kind of stage whispered‖ that ― ‗my
husband helped me decide.‘ ‖ P.R. described her memory as ―confused‖ and was
not sure whether M.H. spoke to her as they entered the jury room for further
deliberations or as they entered the courtroom to return their verdict, though she
thought it was the former.
       P.R. also testified to some prior confusion about the circumstances under
which a juror had been dismissed during trial. At the hearing, she recalled
learning after the trial that this juror was dismissed for speaking to her husband




                                          3
about the case.1 But in 2014 she had told an investigator for the Attorney General
that the juror was dismissed because she did not want to be on the jury, rather than
for misconduct. At the time she made that statement, P.R. was unsure whether
only one juror had been dismissed during trial or two, one for speaking to her
husband and one because she did not want to be there. However, P.R. denied
confusing the dismissed juror with M.H.
       A couple of months after the trial, P.R. spoke with Peter Liss, one of the
defense attorneys at trial. Although Liss asked generally about the jury‘s
deliberations, and although P.R.‘s memory of the trial was fresher at that time than
in 2009, she did not tell Liss about M.H.‘s remarks to her during penalty
deliberations. She had not yet ―register[ed]‖ the conversation as important, though
by the time of the hearing she knew it was and she should have told Liss about it.
       M.H. testified that the trial judge in the Bell trial admonished the jurors not
to discuss the case with others during the trial. M.H. took the admonishment
seriously; she recalled a younger woman juror was dismissed during the trial for
discussing the case with her husband. M.H. did not discuss the case with her
husband until after the trial. She did not ask for his advice during the deliberations
and did not discuss the case with any other juror during the trial outside of
deliberations. She did not recall any such discussions happening and believed
they did not occur, based on her knowledge of the admonition the court gave, her
own personality (she described herself as an independent thinker who would not




1      As described in our appellate opinion, the trial court dismissed holdout
Juror A.G. during guilt phase deliberations for misconduct in discussing the case
and the deliberations with her husband. (People v. Bell, supra, 40 Cal.4th at
pp. 613–616.)



                                          4
have relied on her husband in making the penalty decision) and her relationship
with her husband: ―He wouldn‘t have asked me and I wouldn‘t have told him.‖
       M.H.‘s husband, S.H., had served on two juries before his wife served in
the Bell case and was admonished in both not to discuss the case outside of
deliberations. He knew M.H. was not supposed to discuss the Bell case with him
during the trial, and they did not do so. S.H. also explained that his wife talks a
lot, that he is generally uninterested in what she says and does not himself like to
talk, ask questions, or listen to her.
       Susan Lake, the Habeas Corpus Resource Center investigator who
interviewed P.R. in 2009 and prepared her declaration, testified to the process by
which that declaration was produced. Lake did not tape-record her interviews
with P.R., and her notes from their first interview on May 28, 2009, state only,
with regard to P.R.‘s account of M.H.‘s statement to her, ―last day confronted
me—talked to husband.‖ Lake drafted a declaration after the first interview, then
met again with P.R. on June 1, 2009. She did not take notes of this follow-up
meeting, but revised the draft on the basis of what P.R. said at the time; she could
not testify as to what particular revisions were made. At a third meeting, Lake
read the declaration to P.R., who asked for a few changes (which appear in
handwriting on the declaration submitted in support of the petition) and signed the
declaration.
       The referee concluded there was ―insufficient credible evidence to find
M.H. spoke to her husband about the case during her service as a juror.‖
Assessing M.H. as a ―very coherent and responsive witness,‖ the referee observed
she was fairly consistent in her testimony that she would not have and did not talk
to her husband about the case or ask him to help her decide on her verdict.
Moreover, her testimony was supported by his: S.H. testified he had served on
juries and knew jurors were not to discuss the case outside of deliberations, and

                                          5
further testified he was uninterested in discussing the Bell case with M.H. From
this testimony, the referee concluded ―it is unlikely he would discuss the case with
her or help her decide how to vote.‖
       As to P.R.‘s testimony, the referee did not think she was deliberately lying
about what she recalled, but found her memory ―questionable,‖ observing she
paused before and during her answers for long periods and had significant trouble
following the questions. Given investigator Lake‘s failure to record her interviews
with P.R. and Lake‘s ―cryptic‖ notes, the referee was unconvinced P.R.‘s 2009
declaration accurately recorded ―what P.R. actually recalled independently in
2009.‖ Although P.R. testified at the hearing that M.H. told her, ―my husband
helped me decide,‖ P.R. did not mention this conversation to trial attorney Liss
when she spoke to him shortly after the trial, ―even though it appears she was
aware that another juror was dismissed for speaking to her husband.‖ Given these
facts, the referee considered it possible P.R. was ―confusing M.H. with the juror
who was actually dismissed for speaking to her husband during trial.‖
       Consistent with this assessment of the testimony, the referee found that any
conversation between M.H. and her husband about the case occurred after the trial
ended, that there was no evidence S.H. gave M.H. any advice about the case, and
that there was insufficient credible evidence M.H. ever said to P.R., ―my husband
helped me decide.‖
                                     DISCUSSION
       A petitioner for writ of habeas corpus collaterally attacking his conviction
bears the burden ―initially to plead sufficient grounds for relief, and then later to
prove them.‖ (People v. Duvall (1995) 9 Cal.4th 464, 474; accord, In re Price
(2011) 51 Cal.4th 547, 559.) Before the writ may issue, the petitioner must prove
the facts establishing a basis for relief by a preponderance of the evidence. (In re
Price, supra, at p. 559; In re Visciotti (1996) 14 Cal.4th 325, 351.)

                                           6
       When, as here, this court has ordered an evidentiary hearing before a
referee on one or more of the petitioner‘s claims, we independently review the
referee‘s resolution of legal issues, and mixed questions of law and fact, but
review deferentially the referee‘s factual findings, giving them great weight if they
are supported by substantial evidence. (In re Visciotti, supra, 14 Cal.4th at
p. 345.) ―Because the referee observes the demeanor of testifying witnesses, and
thus has an advantage in assessing their credibility, this court ordinarily gives
great weight to the referee‘s findings on factual questions. [Citation.] ‗Deference
to the referee is particularly appropriate on issues requiring resolution of
testimonial conflicts and assessment of witnesses‘ credibility, because the referee
has the opportunity to observe the witnesses‘ demeanor and manner of
testifying.‘ ‖ (In re Price, supra, 51 Cal.4th at p. 559.)
       A criminal defendant‘s constitutional right to an impartial jury includes the
guarantee of a jury that has not been subjected to improper influences, on which
each member is capable and willing to decide the case solely on the evidence
before the jury. (In re Hamilton (1999) 20 Cal.4th 273, 293; People v. Nesler
(1997) 16 Cal.4th 561, 578.) A juror who violates his or her oath and the court‘s
admonitions by consciously receiving outside information or discussing the case
with nonjurors during trial commits misconduct. (In re Hamilton, supra, at
p. 294.) Such misconduct raises a rebuttable presumption of prejudice. (Id. at
p. 295.)

       I. Evidentiary Issues
       Petitioner enters exceptions to the referee‘s evidentiary rulings excluding
several of the witnesses‘ prior declarations and statements.
       First, the referee ruled M.H.‘s statement in her 2009 declaration that ―I do
not recall speaking to my husband‖ during deliberations was not admissible under



                                           7
the hearsay exception for prior inconsistent statements (Evid. Code, § 1235)
because it was not materially inconsistent with M.H.‘s hearing testimony that she
did not speak to her husband about the case at that time.
       We agree with the referee‘s ruling. On the question of whether she spoke
with her husband about the case during deliberations, M.H.‘s hearing testimony
was more definite than, but not fundamentally inconsistent with, her 2009
declaration. As the referee explained, M.H. testified, consistently with her
declaration, that she did not recall any such conversation, and stated partly on that
basis that no conversation occurred. She testified that her belief no conversation
occurred was based on ―my recollection, and who I am as a person. I don‘t think I
would have done it.‖ When asked about the difference between not recalling an
event and stating that it did not happen, she answered, ―If I don‘t recall it
happening, it didn‘t happen. . . . Well, I feel that I don‘t recall it and I didn‘t do it
based on my recall.‖ Thus her testimony that she had no such conversation with
her husband was not inconsistent with her earlier statement that she did not recall
any such conversation; indeed, it was expressly based, in part, on her lack of such
a recollection.
       This is not a case in which the witness at trial purports to remember an
event she previously stated she did not recall. Here, M.H. consistently stated she
recalled no conversation with her husband about the case during trial. Her further
testimony at the hearing that, partly because of this lack of recall, she believed the
conversation did not occur did not create a conflict with her declaration.2 Nor is it

2      Petitioner argues that in her 2009 declaration, unlike her hearing testimony,
M.H. was ―unable to affirm or deny‖ that the conversation happened. The
declaration, however, does not include any statement that M.H. could not deny the
conversation happened, and investigator Lake‘s testimony about the interview on
which the declaration was based, to which petitioner cites, also fails to support the
                                                              (footnote continued on next page)


                                            8
a case where the witness on the stand attempts to evade questioning by feigning
lack of memory of events the witness previously described. (See People v.
Homick (2012) 55 Cal.4th 816, 859–860.) While Evidence Code section 1235
does not require an express contradiction between the testimony and the prior
statement, it does require inconsistency in effect (People v. Homick, supra, at
p. 859); the referee correctly found no such inconsistency in this case.
        Second, petitioner takes exception to the referee‘s ruling regarding a prior
statement by M.H.‘s husband, S.H. At one point in his hearing testimony, S.H.
testified he did not discuss the ―facts of the case‖ with his wife during or after the
trial and knew only that it was a murder trial. Petitioner contends this statement is
inconsistent with answers S.H. gave to an investigator from the Attorney
General‘s office in 2014, and those answers should have been admitted as prior
inconsistent statements under Evidence Code section 1235.
        We agree with the referee, however, that S.H.‘s 2014 answers were so
vague as to avoid any inconsistency. He told the investigator in 2014 that ―if‖
M.H. told him anything about ―the trial‖ while it was going on he did not
remember it, but that when it was over he learned ―some small particulars about
it.‖ To another question about conversations during the trial, he answered he
―may have heard something‖ but could not recall what. These responses,
conditional and vague as to contents and source as they were, and referring in part
to ―the trial‖ rather than to ―the facts of the case,‖ do not amount to statements that




(footnote continued from previous page)

claim. Lake testified merely that it was clear to her M.H. ―did not have a
memory‖ of the conversation.



                                           9
M.H. and S.H. discussed the facts of the case during or after the trial. (Of course,
any discussion after trial would not itself be misconduct.)
       Third, petitioner contends the referee erred in declining to consider P.R.‘s
account, in her 2009 declaration, of her interaction with M.H. Petitioner argues
this account was admissible as past recollection recorded. (Evid. Code, § 1237.)
To introduce a hearsay statement contained in a writing under that exception,
however, the proponent must establish the writing was made ―at a time when the
fact recorded in the writing actually occurred or was fresh in the witness‘
memory.‖ (Id., subd. (a)(1).) We agree with the referee that petitioner did not
establish the 2009 declaration was made at or near the time of the trial (1993) or
that the event described there was fresh in P.R.‘s memory at the time she made the
declaration.
       Petitioner cites our holding in People v. Cowan (2010) 50 Cal.4th 401, 466,
that trial courts ―have the flexibility to consider all pertinent circumstances in
determining whether the matter was fresh in the witness‘s memory when the
statement was made‖ and that a lapse of months or even a few years does not
necessarily bar a finding the witness‘s memory was reasonably fresh. But even
considering factors other than the lapse of time, as the referee did, the record
shows only that P.R.‘s memory of her interaction with M.H. was better in 2009
than it was at the 2015 evidentiary hearing, not that the events were then still fresh
in P.R.‘s mind. Because investigator Lake did not record her interviews with P.R.,
the record does not show what particular questions Lake asked P.R. that prompted
her to recount her conversation with M.H. (a conversation P.R. did not report to
defense attorney Liss when contacted shortly after the trial), or how those
questions were asked; nor does it show whether in drafting the declaration Lake
used exclusively P.R.‘s words or included her own paraphrases of P.R.‘s oral
statements. Given the fallibility of memory, the fact that P.R. believed she could

                                          10
recall the interaction with M.H. in some detail 16 years after it occurred does not
demonstrate her memory was actually fresh at the time.
       Petitioner argues the circumstances here are analogous to those in People v.
Cummings (1993) 4 Cal.4th 1233, 1293, where we held a prior written statement
was properly admitted under Evidence Code section 1237 despite the witness‘s
testimony casting doubt on his ability to recall the events at the time he made the
statement. In that case, however, the statement was made only a few days after the
events it described. (People v. Cummings, supra, at p. 1293.) The lapse of 16
years that occurred in this case makes showing the witness‘s memory was fresh
extremely difficult, if not impossible. Petitioner has not carried that burden.
       In addition, petitioner contends the referee erred in excluding, under
Evidence Code section 1150, P.R.‘s testimony that before M.H. told P.R. her
husband helped her decide on her verdict, ―we knew we were both struggling.‖
We agree with the referee. P.R.‘s statement that she and M.H. were both
struggling to reach a verdict falls within Evidence Code section 1150‘s bar on
evidence ―concerning the mental processes by which‖ the verdict was reached.

       II. Petitioner’s Exceptions on the Merits
       Petitioner contends the referee‘s findings are not supported by substantial
evidence because the referee misjudged the credibility of the witnesses. The
testimony of M.H. and S.H. ―is dubious for several reasons,‖ he argues, while P.R.
―provided a credible account of her encounter with M.H. on the last day of penalty
deliberations.‖
       As to M.H., petitioner stresses that she could recall very few details about
petitioner‘s 1993 trial, and her testimony that she did not discuss the case with her
husband during trial was based on her lack of memory of such an event rather than
on ―an actual memory‖ of its nonoccurrence. But that M.H. remembered little



                                         11
about her service as a juror more than 20 years earlier is not surprising or
discrediting. Moreover, one typically does not have a specific memory of an event
not happening. (The exception would be when the event was expected to occur in
a particular time period but noticeably failed to do so.) Unless we assume M.H.
talked to her husband about the case during the trial, which we cannot—
petitioner‘s burden is to prove that fact—there is nothing discrediting in M.H.‘s
testimony that she did not recall any such conversation and, based on that lack of
recall and other factors, did not believe it happened. Nothing petitioner cites in
M.H.‘s testimony gives us reason not to defer to the assessment of the referee,
who heard the witness on the stand, that M.H. was a ―very coherent and
responsive witness‖ who testified fairly consistently that she ―did not, and would
not have‖ talked to her husband about the case during the trial.
       As to S.H., petitioner argues his testimony that his wife talked a lot and he
often did not listen to her undermines his testimony that they did not discuss the
Bell case during trial. But S.H.‘s acknowledgement that he might have ignored
M.H. if she said anything about the trial does not detract from his material
testimony that, having served twice as a juror, he was aware of the rule that jurors
were not to discuss the case with others and therefore did not discuss the Bell case
with M.H. during trial. The referee was entitled to rely on this testimony to
corroborate M.H.‘s testimony that no such discussion occurred.
       Turning to P.R., petitioner argues she was the more believable witness on
several grounds. First, where the referee found ―significant trouble following
questions‖ and ―long pauses in her answers,‖ petitioner characterizes P.R.‘s
demeanor on the stand as ―that of a thoughtful, careful person‖ trying to honestly
answer questions about her recollection of past events. We take petitioner‘s point
that pauses in answering and requests for clarification of questions can be signs of
caution as well as of confusion or lack of comprehension, but we decline to

                                         12
substitute our evaluation of the witness‘s demeanor for that of the referee, who
saw and heard the witness testify. The cold transcript simply does not allow us to
overrule the referee‘s assessment that P.R.‘s manner of testifying raised questions
about the accuracy of her memory.
       On the question of what P.R. actually remembered about the Bell penalty
deliberations, petitioner attacks the referee‘s hypothesis that, in testifying that
M.H. told her about a conversation with her husband, P.R. may have mistakenly
attributed to M.H. misconduct for which she knew another juror (A.G.) had been
dismissed. Contending this hypothesis is unsupported by the evidence, petitioner
points out that P.R. was able to describe M.H.‘s appearance and identify her in
person and from a photograph and that her 2009 declaration clearly distinguished
between M.H. and A.G. The referee‘s hypothesis, however, was not that P.R.
confused the personal characteristics of M.H. and A.G. but that, when interviewed
16 years after the trial, she misremembered the misconduct she knew A.G. had
engaged in with her husband as the subject of a conversation with M.H.
concerning M.H. and her husband. This hypothesis is not implausible in light of
the record.
       As the referee observed, P.R. did not report any conversation about
misconduct to defense counsel Liss when he interviewed her shortly after the trial,
even though she testified (if somewhat equivocally) that she knew at the time A.G.
had been discharged for exactly that misconduct—and therefore would have
known of the seriousness of any conversation during trial between M.H. and her
husband. P.R.‘s explanations for this omission were vague and unconvincing:
Liss did not ask, she did not realize until 2009 that the conversation was important,
and she did not feel Liss was a ―confidant‖ with whom she could share the
information. Much later, P.R. told an investigator from the Attorney General‘s
office she thought the dismissed juror simply wanted to be relieved from service,

                                           13
not that she had committed misconduct. At the time she made that statement, P.R.
testified, she was confused as to how many jurors had been dismissed during trial,
one or two.
       The record thus suggests P.R. may, when recalling the events of trial many
years later, have conflated what she knew of A.G.‘s misconduct with
conversations she had with M.H., to whom she remembered ―gravitat[ing]‖ during
the trial because of their similar ages.
       Petitioner further argues that P.R. had no reason to testify falsely about her
interaction with M.H., while M.H. and S.H. were both motivated to cover up
M.H.‘s misconduct. But even without a motive for lying, P.R. could easily have
been confused as to what, if anything, M.H. told her more than 20 years earlier
about a conversation between M.H. and her husband. Faced with the task of
reconciling P.R.‘s testimony with that of M.H. and S.H., the referee chose to find
P.R. was misremembering events rather than that M.H. and S.H. were deliberately
testifying falsely. This conclusion rested heavily on the referee‘s positive
assessment of M.H. and S.H.‘s credibility as witnesses. Again, the cold transcript
provides us with no sufficient ground to substitute our own credibility assessment
for that of the referee.




                                           14
                          CONCLUSION AND DISPOSITION
       The testimony of M.H. and S.H. provides substantial evidence to support
the referee‘s conclusion the alleged jury misconduct did not occur. Giving great
weight to the referee‘s factual findings based on her determination of witness
credibility, we adopt those findings and, on that basis, conclude that petitioner has
failed to prove by a preponderance of the evidence his claim that trial Juror M.H.
committed misconduct by discussing the case with her husband during the period
of the penalty deliberations.
       Because our order to show cause and our reference order were limited to
this claim, we do not here address any other claim set forth in the petition. The
remaining claims will be resolved by a separately filed order.
       The order to show cause is discharged.
                                                  WERDEGAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                         15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Bell
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S151362
Date Filed: June 8, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Richard Murphy and Joan P. Weber

__________________________________________________________________________________

Counsel:

Habeas Corpus Resource Center, Miro F. Cizin, Kevin Bringuel, Eileen Connor, Anne D. Gordon and
Paula Fog for Petitioner Steven M. Bell.

Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Holly D.
Wilkens, Michael T. Murphy and Lynne G. McGinnis, Deputy Attorneys General, for Respondent State of
California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Miro F. Cizin
Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA 94107
(415) 348-3800

Lynne G. McGinnis
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9217
