Filed 8/24/16 P. v. Ramirez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069323
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MCR043016C)
                   v.

RAFAEL RAMIREZ,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         John J. Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Appellant Rafael Ramirez appeals from his convictions for residential burglary,
robbery, making criminal threats, and two counts of misdemeanor assault.1 Ramirez
argues that misconduct by a juror violated his right to trial by an impartial jury. He
contends the trial court’s failure to investigate the misconduct was an abuse of discretion.
Next, he argues the prosecutor committed misconduct by not promptly reporting the
juror’s misconduct to the court. Finally, he asserts his attorney was ineffective in failing
to move for a new trial on the basis of the juror’s misconduct. We reject his contentions
and affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       Ramirez was charged, in a second-amended information filed in the Madera
County Superior Court, with residential burglary (Pen. Code, § 459,2 count 1); robbery
(§ 211, count 2); two counts of assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4), counts 3 & 4); and making criminal threats (§ 422, count 5).3
       A jury found Ramirez guilty on counts 1, 2, and 5; he was also found guilty of the
lesser offense of misdemeanor assault on counts 3 and 4. (§ 241, subd. (a).)
       The court sentenced Ramirez to eight years in prison, as follows: 16 months for
residential burglary, six years for robbery, and eight months for making criminal threats.
       On March 19, 2012, Miguel Rodriguez and his sister, Ruby Rodriguez, saw
Ramirez and Isaac Camacho at a window of their apartment. Ruby and Miguel then



       1Armando   Ramirez, coappellant in this matter, voluntarily dismissed his appeal on
May 22, 2015.
       2Subsequent   statutory references are to the Penal Code unless otherwise specified.
       3The   second-amended information also charged Armando Ramirez with counts 1,
2, 3, and 5, and Erick Miranda with counts 1, 3, 4, and 5. Armando Ramirez was found
guilty on counts 1, 2, and 5; he was also found guilty of the lesser offense of
misdemeanor assault (§ 241, subd. (a)) on count 3. Miranda was acquitted of all charges
at trial.


                                             2.
found eight or nine people gathered outside, including Ramirez and Camacho, and also
Armando Ramirez (Armando), and Erick Miranda (Miranda), among others.
       Ramirez yelled at Miguel because Miguel had earlier taken the police to Ramirez’s
house in order to retrieve a stolen cell phone that Miguel had given to Ramirez.
Armando called Miguel a “bitch” and threatened to “fuck [him] up” because he was a
“fucking rat.”
       Ramirez punched Miguel in the face. Ramirez also punched Ruby when she tried
to get him away from Miguel. Armando placed Miguel in a choke hold. Ramirez,
Miranda, and two other persons hit and punched Ruby.
       Armando grabbed Miguel by his shirt, ordered him in the house, and directed him
to “give me all your shit .…” Ramirez and Armando went into the house. Armando took
a pit bull puppy from Miguel’s room. Ruby later noticed that her laptop, a cell phone,
and some cables were also missing.
       As Ramirez and the others left the apartment, Ramirez warned Ruby not to call the
police; Ramirez and Armando threatened to kill both Miguel and Ruby if either of them
were to call the police.
       Ruby and Miguel both suffered injuries to their faces and heads. Ruby also had
bruising on her stomach. Miguel and Ruby were afraid for their safety and moved out of
their apartment the following day.
                                       DISCUSSION
       Ramirez argues that misconduct by Juror No. 8 violated his right to trial by an
impartial and unbiased jury. He contends the trial court’s failure to investigate the
misconduct was an abuse of discretion. Next, he argues the prosecutor committed
misconduct by not promptly reporting the juror’s misconduct to the court. Finally, he
asserts his attorney was ineffective in failing to move for a new trial on the basis of the
juror’s misconduct. We reject these contentions.



                                              3.
I.     Background
       During voir dire proceedings, the court instructed the prospective jurors, including
Juror No. 8, as follows: “I’ll also ask you folks if you know any of the folks in the
courtroom, whether it’s counsel, or the defendants, court staff, me; if so, please raise your
hands. I see no hands in that regard.” Later, the court asked the prospective jurors to
raise a hand if anyone had “any belief or feeling toward any of the parties, attorneys, or
witnesses that would make it impossible or even difficult for [them] to act fairly and
impartially” and repeated his request for a show of hands if any prospective juror was
“familiar with anyone in the courtroom.” No hands were raised. The court also asked
prospective jurors to raise a hand if the outcome of the case would affect them or anyone
near to them. Again, no hands were raised.
       During the court’s voir dire, Juror No. 8 stated she was an elementary school
principal and lived in Madera with her husband, who had retired from the military and
was self-employed. Juror No. 8 also revealed that 30 years ago, when she was young, an
uncle of hers went to prison in Arkansas. She said she nonetheless could be fair and
impartial in the instant case.
       The prosecutor told the court, at Ramirez’s sentencing hearing on April 30, 2014,
about an incident with Juror No. 8 when, after conclusion of trial and dismissal of the
jury, he and counsel for one of the codefendants were talking to her.4 The prosecutor
stated he had previously e-mailed Ramirez’s counsel about the incident but did not know
whether counsel received the e-mail. Ramirez’s counsel stated he had heard about the
incident from another codefendant’s counsel.
       The prosecutor had the following exchange with the court:

            “MR. PETERSEN [the prosecutor]: [A]fter the trial, Juror
       Number 8 told me that about halfway of the trial she recognized me as a
       member of a group that helped move my stuff in. No relationship beyond

       4The   jury reached its verdict on April 2, 2014.


                                              4.
      that. About halfway in, she said Oh, I recognized you, me and a bunch of
      other people helped myself, David Petersen, get moved in so I just—

             “THE COURT: Moved into your home?

            “MR. PETERSEN: Into my home when I first moved here, your
      Honor.

             “THE COURT: All right. Thank you very much. [¶] Mr. Esquivel,
      did you get that information?

             “MR. ESQUIVEL [Ramirez’s counsel]: I think I heard it from Mr.
      Cummings [codefendant’s counsel] recently. I don’t know that it’s an
      issue. I’m not going to make an issue of it today but I don’t know what else
      to say beyond that.

             “THE COURT: It’s a fact.

             “MR. ESQUIVEL: It’s a fact.

            “THE COURT: All right. Thank you very much. You have been
      made aware of that.

             “MR. ESQUIVEL: Yes.

             “THE COURT: All right. Thank you very much. [¶] And I
      appreciate that disclosure, Mr. Petersen. I don’t find anything in that that
      will cause me to make any changes in the judgment as I’ve just described
      it.”
Thereafter, the court gave additional advisements to Ramirez and then concluded the
judgment proceedings.
      A similar discussion took place at the sentencing of Armando Ramirez, the only
other codefendant convicted in the case:

              “MR. PETERSEN: And Your Honor, as previously mentioned on
      the Rafael matter, I just want to bring for the record, I have spoken to Mr.
      Cummings previously. About Juror No. 8, again, about halfway through
      the trial she recognized that she had moved some of my items in when I
      moved here to Madera. I did not ever recognize her, even after she told me
      this information, I still did not recognize her, so .…

          “THE COURT: All right, thank you, Mr. Petersen. [¶] Mr.
      Cummings, any comment in that regard?

                                            5.
               “MR. CUMMINGS [counsel for Armando Ramirez]: I think I’ll
       leave it to the appellate attorney. I’m not going to file any motions or
       anything. Maybe an appellate attorney might think I should have acted on
       it.

              “THE COURT: All right, that you for—

              “MR. PETERSEN: That was mentioned after the trial when me and
       Mr. McGurty [counsel for codefendant, Miranda] spoke briefly with the
       juror, Your Honor.

              “THE COURT: All right, thank you very much.

               “MR. PETERSEN: And there was no contact with the jury during
       the trial, other than in the courtroom, Your Honor.

              “THE COURT: Thank you.”

II.    Analysis
       As noted above, Ramirez contends that misconduct by Juror No. 8 violated his
right to trial by an impartial and unbiased jury, the trial court abused its discretion by
failing to conduct a further inquiry, the prosecutor engaged in misconduct, and counsel
was ineffective for failing to move for a new trial.
       Ramirez’s trial counsel was apprised of the prosecutor’s interaction with Juror
No. 8 but did not request that the court take any action based on the incident, nor did he
move for a new trial. Accordingly, Ramirez’s claims related to alleged juror misconduct
are forfeited. (People v. Russell (2010) 50 Cal.4th 1228, 1250; People v. Wisely (1990)
224 Cal.App.3d 939, 947.) His prosecutorial-misconduct claim is also forfeited given
counsel’s failure to object on this basis in the trial court. (People v. Bradford (1997) 15
Cal.4th 1229, 1333.) In any event, we reject all of Ramirez’s contentions on the merits.
       A.     Juror misconduct
       A criminal defendant has a constitutional right to a unanimous verdict by an
impartial jury. (People v. Wilson (2008) 44 Cal.4th 758, 822.) Ramirez alleges his




                                              6.
constitutional rights were infringed because Juror No. 8 deliberately concealed the fact
that the prosecutor was known to her, and her actions masked a pro-prosecution bias.
       The underlying facts, however, do not support a prima facie case of juror
misconduct. There is nothing to suggest that Juror No. 8 lied about or deliberately
concealed a prior fleeting acquaintance with the prosecutor, during voir dire, in violation
of her oath as a juror. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [intentional
concealment of relevant facts or giving false answers in voir dire is misconduct].) Juror
No. 8’s reported comments indicate only that she recognized the prosecutor halfway
through the trial, an entirely plausible proposition in light of the fact that she had but a
single, prior encounter with him. The limited nature of the relationship is reflected in the
fact that, when the juror told the prosecutor about the circumstances of their prior
meeting, he still did not recognize her. This record leads us to conclude that Juror
No. 8’s failure to report, during jury selection, her prior encounter with the prosecutor,
was an honest mistake and not a deliberate attempt to conceal bias. Further, there is no
evidence that Juror No. 8’s inadvertent mistake masked an actual pro-prosecution bias.
(See In re Hamilton (1999) 20 Cal.4th 273, 300 [“What is clear is that an honest mistake
on voir dire cannot disturb a judgment in the absence of proof that the juror’s wrong or
incomplete answer hid the juror’s actual bias.”].)
       The fact that the juror, when she eventually recognized the prosecutor, did not
affirmatively notify the court of this belated realization also does not, by itself, indicate
that the juror deliberately withheld that information from the court so as to hide a pro-
prosecution bias. (See People v. Merriman (2014) 60 Cal.4th 1, 96-98 [juror who failed
to reveal in response to written question, and to affirmatively disclose during voir dire,
that she had distant relative in law enforcement, made honest mistake that did not hide an
actual pro-law-enforcement bias].)
       On the contrary, the fact that Juror No. 8 voluntarily disclosed she had eventually
recognized the prosecutor, in the presence of a codefendant’s counsel after the trial,

                                              7.
indicates that her failure to do so earlier was inadvertent and that she was attempting to
perform her duties in good faith and was not biased. (See In re Hamilton, supra, 20
Cal.4th at p. 300 [“good faith when answering voir dire questions is the most significant
indicator that there was no bias”].) “If [Juror No. 8] had formed improper opinions about
the case and … act[ed] in ways prejudicial to the defense, common sense suggests [she]
would have simply remained silent,” rather than publicly revealing her prior connection
with the prosecutor. (People v. Ray (1996) 13 Cal.4th 313, 343.) Accordingly, under In
re Hamilton, reversal is not warranted. (See In re Hamilton, supra, at p. 300.)
       Ramirez further argues that Juror No. 8’s misconduct raised a presumption of
prejudice that has not been rebutted. A juror’s purported misconduct “raises a rebuttable
presumption that the defendant was prejudiced and may establish juror bias.” (People v.
Merriman, supra, 60 Cal.4th at p. 95.) The cases establishing the presumption of
prejudice involve actual misconduct, or, put differently, “‘true jury misconduct.’”
(People v. Cooper (1991) 53 Cal.3d 771, 835, quoting People v. Boyd (1979) 95
Cal.App.3d 577, 585.) “When a person violates his oath as a juror, doubt is cast on that
person’s ability to otherwise perform his duties. [Citation.] The presumption of
prejudice is appropriate in those situations.” (People v. Cooper, supra, at pp. 835-836.)
Here, there is no evidence of deliberate concealment of a material fact in jury selection or
thereafter, nor of actual bias, and a presumption of prejudice is not raised. (See
Merriman, supra, at pp. 96-98 [no presumption was applied where there was no
deliberate concealment and no actual bias].)
       B.     Trial court’s failure to investigate
       Ramirez next claims the court’s failure to investigate the purported misconduct
was an abuse of discretion. “The decision whether to investigate the possibility of juror
bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a
juror—rests within the sound discretion of the trial court. [Citation.] The court does not
abuse its discretion simply because it fails to investigate any and all new information

                                               8.
obtained about a juror during trial. [¶] As our cases make clear, a hearing is required
only where the court possesses information which, if proven to be true, would constitute
‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal
from the case.” (People v. Ray, supra, 13 Cal.4th at p. 343.) Here, not only did the
allegations of misconduct arise after the trial was over and the jury had been dismissed,
but the specific conduct at issue did not rise to a level at which a juror’s ability to perform
her duties would automatically be compromised. (See, e.g., People v. Kaurish (1990) 52
Cal.3d 648, 694 [no hearing required absent evidence that juror’s derogatory remark
reflected bias against defense as opposed to impatience with proceedings].) The trial
court did not abuse its discretion in leaving any investigation to the parties.
       C.     Prosecutorial misconduct
       Ramirez argues the prosecutor committed misconduct because he “learned of the
juror’s misconduct immediately after trial and waited to disclose the information to the
court until after the court had pronounced judgment.” He further argues that, “[i]n the
absence of the prosecutor’s misconduct [Ramirez] would have reasonably been granted a
new trial.” We reject his contention.
       “In general, a prosecutor commits misconduct by the use of deceptive or
reprehensible methods to persuade either the court or the jury. [Citations.]” (People v.
Price (1991) 1 Cal.4th 324, 447.) “Prosecutorial misconduct, however, will not be
grounds for reversal unless it is shown to be prejudicial.” (People v. Villa (1980) 109
Cal.App.3d 360, 366.) “‘[T]he judgment will not be reversed [on state law grounds]
unless, after a review of the entire cause, it appears it is “reasonably probable” that a
result more favorable to the defendant would have occurred had the district attorney
refrained from the misconduct in question [citations].’” (People v. Bryden (1998) 63
Cal.App.4th 159, 182.)
       Here, the prosecutor reported the juror’s conduct to defendant’s counsel prior to
the sentencing hearing, and defense counsel indicated at the hearing that he already knew

                                              9.
about the incident. After the court was apprised of the juror’s comments, it noted, “I
don’t find anything in that that will cause me to make any changes in the judgment as
I’ve just described it.” Thereafter, the court gave additional advisements to Ramirez and
concluded the judgment proceedings. Ramirez’s counsel did not move for a new trial
based on the juror’s conduct. Under these facts, Ramirez has shown neither deceptive
and reprehensible conduct by the prosecutor nor that he was prejudiced by the
prosecutor’s actions.
       D.     Ineffective assistance of counsel
       Ramirez argues that his counsel was ineffective in failing to move for a new trial
on the basis of the purported juror misconduct. His contention has no merit.
       A claim that counsel was ineffective requires a showing, by a preponderance of
the evidence, of an objectively unreasonable performance by counsel and a reasonable
probability that, but for counsel’s errors, the defendant would have obtained a more
favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) On this limited
record and absent any showing that Juror No. 8 was not impartial, Ramirez cannot show
that counsel was ineffective in failing to move for a new trial on the basis of juror
misconduct or that the result would have been any different had counsel made such a
motion.
                                      DISPOSITION
       The judgment is affirmed.
                                                                  _____________________
                                                                                Smith, J.
WE CONCUR:


 _____________________
 Detjen, Acting P.J.


 _____________________
 Franson, J.


                                             10.
