Filed 3/24/15 P. v. Paine CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C074375

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF11-271)

         v.

ANTHONY TODD PAINE,

                   Defendant and Appellant.




         A jury convicted defendant Anthony Todd Paine of continuous sexual abuse of a
child under 14 years of age (Pen. Code, § 288.5, subd. (a)) and found true an allegation
that the abuse involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)).
Defendant was sentenced to state prison for 16 years.
         On appeal, defendant contends the trial court violated its duty to investigate juror
misconduct. He also takes the fallback position that if we decline to address his juror
misconduct contention because of counsel’s failure to raise the issue in the trial court,



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then he received ineffective assistance of counsel. We address defendant’s primary
contention and conclude there was no juror misconduct and, therefore, the trial court had
no duty to investigate.
                                STATEMENT OF FACTS
       Since the sufficiency of the evidence is not an issue, we briefly set forth the facts.
       Defendant was convicted of one count of continual sexual abuse against M., his
stepgranddaughter. Defendant was married to M.’s grandmother. M. frequently stayed
with defendant and her grandmother. During M.’s stays, starting when she was about 11
years old, defendant rubbed her chest on more than three occasions and rubbed her
vaginal area at least three times during the accusatory period. M. did not tell her parents
or her grandmother about the touching because she feared they would be angry with her.
M. did tell her friend about the touching and the friend persuaded her to tell her teacher,
which she did.
       Defendant testified, denying ever molesting M. Defendant thought M. was lying
because she was jealous of his relationship with her grandmother.
                                       DISCUSSION
       Defendant contends the trial court violated its duty to conduct a hearing into juror
misconduct based on a letter given to the court by Juror No. 2 after the verdict had been
rendered and the jury dismissed. The letter cited various reasons why Juror No. 2
believed that some of the jurors had engaged in misconduct, including the following
portion upon which defendant relies: “Eight of the twelve [jurors] decided [defendant]
was guilty. Four of us were not convinced. [¶] When asked why those who reached a
guilty [verdict] had come to that conclusion, two members said his body language and the
way he presented his testimony indicated he was guilty. These jurors indicated that they
had received training in reading body language and that [defendant’s] behavior clearly
indicated he was not telling the truth.”



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       Defendant argues the jurors’ statements they were trained in reading body
language constituted an “ ‘improper injection of extrajudicial specialized information into
the deliberations.’ ” We disagree.
       “ ‘A juror . . . should not discuss an opinion explicitly based on specialized
information obtained from outside sources. Such injection of external information in the
form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is
misconduct.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1265, citing In re
Malone (1996) 12 Cal.4th 935, 963 (Malone).)
       However, “[j]urors are allowed to use their life experiences in performing their
duties. ‘ “Jurors bring to their deliberations knowledge and beliefs about general matters
of law and fact that find their source in everyday life and experience. That they do so is
one of the strengths of the system. It is also one of its weaknesses: it has the potential to
undermine determinations that should be made exclusively on the evidence introduced by
the parties and the instructions given by the court. Such a weakness, however, must be
tolerated. ‘[I]t is an impossible standard to require . . . [the jury] to be a laboratory,
completely sterilized and freed from any external factors.’ [Citation.] Moreover, under
that ‘standard’ few verdicts would be proof against challenge.” [Citation.]’ [Citation.]”
(People v. Garcia (2001) 89 Cal.App.4th 1321, 1339-1340 (Garcia).)
       Reading the body language of a witness has long been recognized as a means of
judging a witness’s credibility. (People v. Miranda (2011) 199 Cal.App.4th 1403, 1414
[a witnesses’ demeanor or body language is part of the evidence in a case].) Indeed, this
concept is statutorily recognized in Evidence Code section 780 which provides: “Except
as otherwise provided by statute, the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove or disprove




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the truthfulness of his testimony at the hearing, including but not limited to any of the
following: [¶] (a) His demeanor while testifying and the manner in which he testifies.”1
         Garcia rejected a claim essentially indistinguishable from that made by defendant
herein. There, the defendant made a motion for a new trial on grounds of juror
misconduct. The basis for the motion was a declaration from a juror “stating that another
juror told the jurors that he ‘had taken a course in which he had studied body language.
[The juror] argued that based on his studies, after observing the body language of [the
defendant] while testifying, that [the defendant] was lying.’ [The] defendant claimed that
the juror impermissibly had interjected extrajudicial facts into the deliberation process
and that such misconduct prejudiced the defense.” (Garcia, supra, 89 Cal.App.4th at pp.
1338-1339.) The trial court denied the new trial motion, stating: “ ‘[T]he fact that this
juror casually mentioned that he had taken a body language course, I mean, the way I see
it, is pretty innocuous, even if you take that as true. [¶] In the Court’s view, [the
defendant] got upon the stand and was one of the worst witnesses I’ve ever seen. I mean,
his lying was obvious to everybody. No one needed a body language course to conclude
he was lying. [¶] Even if you assume all that, I don’t think it gets us anywhere. I think
the jurors have a right to evaluate the demeanor.’ ” (Garcia, supra, 89 Cal.App.4th at p.
1339.)
         In upholding the trial court, Garcia stated: “Of course it is the very function of the
jury to evaluate the credibility of witnesses. Jurors are instructed to consider the
demeanor and manner of the witness while testifying in order to determine the witness’s
believability. [Citation.] The juror who volunteered that he had taken a course in body



1      The jury was instructed per former CALCRIM No. 105, as follows: “You are the
sole judges of the believability of a witness and the weight to be given to the testimony of
each witness. In determining the believability of a witness, you may consider anything
that has a tendency reasonably to prove or disprove the truthfulness of the testimony of
the witness, including . . . the demeanor and manner of the witness while testifying.”

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language did not describe himself as an expert, nor was there any reason to consider such.
[Citation.]” (Garcia, supra, 89 Cal.App.4th at p. 1339.)
       There is no significant difference between the facts of the present case and those
of Garcia. Here, the jurors’ comments essentially were that because of their training in
reading body language they interpreted defendant’s body language and the manner in
which he presented his testimony as indicating guilt. However, there was no discussion
regarding the substance of the two jurors’ training or how they applied that training to the
present case. The jurors did not hold themselves out as experts nor specialists in
interpreting body language. Nor was there any attempt by the two jurors to persuade the
other jurors based on anything they had learned from their training. Accordingly, we find
there was no juror misconduct.
       Malone, supra, cited by defendant in support of his misconduct of jury claim is of
no aid to him. One of the issues in Malone involved the reliability of a polygraph
examination taken by the defendant which he had passed. (Malone, supra, 12 Cal.4th at
pp. 942-943.) During deliberations Juror Dianne Irwin, a psychologist, was asked by
other jurors what she thought about polygraph examinations. (Id. at p. 947.) Irwin
responded that “she was not an expert on polygraphs, but had read and discussed
professional articles on the subject in the course of her studies in psychology; that while
polygraph examiners claim an accuracy rate of 80 to 90 percent, Irwin was skeptical of
that claim because independent researchers had found accuracy rates of only 50 to 60
percent;” and that a key question asked by the polygraph operator to defendant regarding
whether he had killed the victim was ambiguously worded. (Id. at p. 948.) Irwin further
“told the other jurors these beliefs were based on her readings rather than on her own
experimental research.” (Ibid.)
       The Malone court concluded that Irwin’s assertion that her “information was
drawn from her own professional knowledge . . . was an improper injection of
extrajudicial specialized information into the deliberations,” which constituted juror

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misconduct. (Malone, supra, 12 Cal.4th at p. 963, fn. 16.) The facts of Malone are a far
cry from those in our case and from those in Garcia, neither of which involved jurors
holding themselves out as experts or imparting statistics on the accuracy of the tests that
may have been given.
                                      DISPOSITION
       The judgment is affirmed.




                                                        NICHOLSON             , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




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