Filed 10/31/13 P. v. Romo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D061794

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. JCF27332;
                                                                                     JCF27641)
JAVIER ROMO et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of Imperial County, Juan Ulloa,

Judge. Affirmed.

         John E. Edwards, under appointment by the Court of Appeal, for Defendant and

Appellant Javier Romo.

         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant Luis Scott.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Javier Romo (a minor tried as an adult) and Luis Scott (together

defendants) guilty of the attempted murder of Antonio Meza (Pen. Code, §§ 187,

subd. (a) & 664). Defendants brought a new trial motion claiming juror misconduct and

bias. The court denied the motion and sentenced Romo and Scott each to the middle

prison term of seven years.

       Defendants raise two contentions. First, Romo contends the court committed

reversible error when it denied his motion to suppress evidence of a statement he made to

police during custodial questioning after he was properly given a Miranda1 warning and

the interrogating detective continued to question him after he said, "I wanna remain

silence [sic]." Second, defendants contend the court erred in denying their motion for a

new trial, in which they claimed Juror No. 1 knew and concealed the fact that Scott's trial

counsel, Steven Honse, was a partner in the law firm that was then representing Juror

No. 1's former husband in a child custody and child support modification proceeding.

We affirm defendants' convictions.

                              FACTUAL BACKGROUND

       A. The People's Case

       At around 10:30 p.m. on Sunday, May 29, 2011, Antonio Meza left his home in

El Centro and started walking to his girlfriend Blanca Medina's house. As he walked past

a park, Meza saw a group of people gathered nearby to his left. He also saw a small

white car stop briefly near the group and then drive away. As Meza continued walking,



1      Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
                                             2
the group of people started running towards him and five young Hispanic males

surrounded him.

       Meza testified that Romo stood "[r]ight in front of me" while the rest of the group

circled around Meza. Although Meza recognized Romo because he had seen him around

the neighborhood and had spoken to him a few times, Meza only knew him by his

nickname, "Pistol."

       In an angry and threatening manner, Romo said, "What's up," and asked Meza

whether he had anything on him. After Meza replied that he did not have anything on

him, someone behind him stabbed him and struck him in the back of the head and neck.

Meza fell to the ground, got back up on his feet after the group kicked and hit him, and

then started running.

       As he was running, Meza looked over his left shoulder and saw someone, whom

he later identified as Scott, who chased him and hit him from behind. Scott was the only

one who was chasing Meza. Meza knew Scott by his nickname "Vago." Meza was able

to identify Scott when Meza looked over his shoulder because there was a street light

there. Meza did not know what he was hit with.

       Meza kept running and Romo, Scott and the rest of the group drove off in the

same white car Meza had seen earlier. Meza saw Romo sitting in the passenger seat as

the car drove away. Meza was about 10 feet away from the car when it drove by.

       Meza continued walking and felt blood going down his back. He felt dizzy, his

vision was blurry, and he had difficulty breathing. He had to stop several times to rest.



                                             3
       Meza eventually reached Medina's house. When Meza went inside to her

bedroom, she saw blood on the back of his sweater and sweatpants. Medina cut off his

sweater and saw he had five stab wounds. She cleaned his wounds with hydrogen

peroxide and used feminine pads to stop the bleeding. Medina asked Meza who had done

that to him, and he said he was stabbed by a group. Meza told her two men whom he

knew as "Vago" (Scott) and "Konex"2 were there.

       Medina showed Meza a photograph of a group of five males,3 one of whom—at

the far right—was Romo. She asked Meza if he recognized anyone in the picture. Meza

pointed out Romo and another person whose name he did not know. Meza believed all

five of the males in the photograph belonged to the same group. Later, after Meza started

having convulsions, Medina's mother called 911.

       Officers arrived on the scene and spoke with Meza, who told them that members

of a group in the neighborhood had attacked him.

       Meza was then hospitalized. He was in critical condition. He had suffered

multiple stab wounds on his back, two on the left side of his chest and two on the right

side, and had a collapsed lung. He was given a sedative medication called Versed, which

can affect a patient's memory.




2    Medina testified that Konex was the nickname that Jose Cordova used. Cordova,
whom Meza identified as one of his attackers, is not a party to this appeal.

3      The prosecution introduced the photograph as exhibit 10.
                                             4
          An officer investigating the stabbing spoke to Meza in the hospital. Meza

identified Vago (Scott), a person he knew as Tiny,4 and Konex (Cordova, see fn. 2, ante)

as three of his attackers.

          Another officer, Detective Alfredo Hernandez, later interviewed Meza several

times about the stabbing. Meza identified Romo out of a six-pack photographic lineup as

one of the attackers. Meza also identified Konex and Tiny as attackers. During the first

interview, Meza told Detective Hernandez that Romo stood next to Tiny during the

attack.

          B. The Defense

          Romo's friend Enrique Jimenez, who was one of the five males shown in the

photograph marked as exhibit 10 (discussed, ante), testified that on May 29, 2011, the

night of the stabbing, Romo was with him at Jimenez's grandmother's house in El Centro

for a barbeque dinner. Jimenez stated he was there with Romo from 5:30 p.m. to around

11:30 p.m. Jimenez's mother and grandmother also testified that Romo was with them at

the barbeque at the time of the stabbing.

          Romo also called an expert witness who testified about memory recall and

suggestibility.

          C. Prosecution's Rebuttal Evidence

          In response to the defense's three alibi witnesses, the People recalled Detective

Hernandez, who again testified about his interview with Romo. In the interview, after


4       Tiny was the nickname used by Martin Andrade, who, like Cordova, is not a party
to this appeal.
                                                5
Detective Hernandez read him his Miranda rights and Romo said he understood those

rights. Romo indicated that on the night of the stabbing he was in Mexicali at a baptism

with his mother. A recording of that portion of the interview was played for the jury.

                                       DISCUSSION

                                       I. MIRANDA

       Romo first claims the court committed reversible error when it denied his motion

to suppress evidence of a statement he made to police during custodial questioning after

he was properly given a Miranda warning. Specifically, he claims that Detective

Hernandez violated his Miranda rights by continuing to question him after he invoked his

right to remain silent by telling the detective, "I wanna remain silence [sic]," and that the

court erred by denying his in limine motion to suppress his statement that on the night of

the stabbing he was attending a baptism in Mexicali with his mother. This contention is

unavailing.

       A. Background

       Romo brought a motion in limine to exclude evidence of statements he made

during police questioning following his arrest, claiming that Detective Hernandez

violated his Miranda rights by continuing to interrogate him after he invoked his right to

remain silent. The People opposed the suppression motion, arguing that Romo's

ambiguous statement did not constitute an invocation of his right to remain silent and that

Romo impliedly waived that right. In support of their opposition, the People submitted a

transcript of the interview, which the court considered.



                                              6
      1. Interview transcript

      The transcript shows, and Romo does not dispute, that Detective Hernandez

properly read him his Miranda rights. The following pertinent exchange between

Detective Hernandez and Romo occurred soon thereafter:

         "[Detective Hernandez]: Do you want to talk about what happened?

         "[Romo]: Well, I don't know what happened . . . I just, uh . . . well, I
         don't know what happened, but I don't got nothin' to say about,
         um . . . .

         "[Detective Hernandez]: Well, it's . . . it's, um . . . you can't have it
         both ways, bro.

         "[Romo]: I don't know what happened, um . . . I don't know.
         [VOICES OVERLAPPING]

         "[Detective Hernandez]: Do you want to tell your side of the story?

         "[Romo]: What side of the story? [CHUCKLE] . . . [U]h, I don't get
         what you're talking about[.] [W]hat side of the story?

         "[Detective Hernandez]: All right . . . [SIGHS] . . . this is an area
         that we gotta be kinda careful on, okay? [C]uz you're not telling me
         that you want to talk about it, but then again, you're not telling me
         that you want to remain silent . . . and so you [VOICES
         OVERLAPPING] . . . you . . . you . . . [VOICES OVERLAPPING]

         "[Romo]: No, well, I wanna remain silence [sic], but . . . what I
         mean is, well, I wanna know what's . . . what . . . why you're
         bringing me in and taking me to the hall . . . you know what I mean?
         [VOICES OVERLAPPING]

         "[Detective Hernandez]: Well, there was a stabbing . . . .

         "[Romo]: Oh, yeah?

         "[Detective Hernandez]: . . . um [VOICES OVERLAPPING]

         "[Romo]: Well, I don't know . . . .

                                              7
"[Detective Hernandez]: . . . on Sunday night.

"[Romo]: . . . well, I don't know nothin' about that stabbing.

"[Detective Hernandez]: Okay . . . I got some questions for you . . . .

"[Romo]: Well, I don't know.

"[Detective Hernandez]: [Y]ou want to hear me out? [O]r do you
want to talk about . . . .

"[Romo]: Well, I don't got nothin' . . . I can't answer your questions
when I . . . I wasn't there, so I don't know . . . I don't know how you
wanna do it [VOICES OVERLAPPING] [¶] . . . [¶]

"[Detective Hernandez]: We can get started and there's [sic] some
things that you don't want to talk about or you don't want to say, just
say so . . . .

"[Romo]: No, but [VOICES OVERLAPPING]

"[Detective Hernandez]: . . . not gonna trick you [VOICES
OVERLAPPING]

"[Romo]: . . . um . . . I mean, like . . . you know, I wasn't there, so I
can't talk, you know what I mean? for that . . . for that
incident . . . so, how do you wanna talk about that?, you know.

"[Detective Hernandez]: Well, there was a stabbing . . . [voices
overlapping] and the victim is saying that he saw you come up to
him.

"[Romo]: Oh, yeah?

"[Detective Hernandez]: Uh-huh.

"[Romo]: Oh, well . . . .

"[Detective Hernandez]: Is there anything about that, that . . . .

"[Romo]: Nah, I don't know . . . I wasn't even [VOICES
OVERLAPPING]


                                    8
          "[Detective Hernandez]: . . . you weren't there?

          "[Romo]: I wasn't even there.

          "[Detective Hernandez]: Um . . . what did you do on Sunday night? [¶] . . . [¶]

          "[Romo]: [T]his Sunday?

          "[Detective Hernandez]: Last Sunday.

          "[Romo]: Oh, last Sunday? I left [VOICES OVERLAPPING]

          "[Detective Hernandez]: T]he [30th] was, um, Memorial Day.

          "[Romo]: Oh, the day before I left to go over here, MEXICALI.

          "[Detective Hernandez]: With who [sic]?

          "[Romo]: With my mom. [¶] . . . [¶]

          "[Detective Hernandez]: Was it . . . like a birthday party or was it
          [VOICES OVERLAPPING]

          "[Romo]: Nah, [it was a baptism.]" (Italics added.)

      2. Hearing and ruling

      At the hearing on Romo's suppression motion, during direct examination by

Romo's counsel, Detective Hernandez acknowledged that Romo told him he wanted to

remain silent, but stated that Romo wanted to know what he knew, and he (Detective

Hernandez) "took it as he wanted to talk." On cross-examination, Detective Hernandez

testified he had interacted with, and questioned, Romo "numerous times" in the past and

during this interview Romo was "pretty relaxed," he did not seem nervous, and he was

told the interview was being audio-recorded. Detective Hernandez indicated he believed




                                             9
Romo understood his Miranda rights and waived those rights by continuing to speak with

him.

       1. Ruling

       The court noted that after Romo indicated he understood his right to remain silent

and Detective Hernandez asked him whether he wished to talk, Romo said, "I don't know

what happened." Viewing this statement in context, the court observed, "I think a fair

inference says, 'I want to tell you but I don't know what happened.' That means I'll

answer the question in a negative way, in an exculpatory way." The court interpreted

Romo's statements to Detective Hernandez to mean, "Well, I want to remain silent but I

want to know what's going on."

       The court also noted that Detective Hernandez was not "provoking or engaging in

[Romo's] continuing to speak," and Romo "[did not] unambiguously say he [did not]

want to speak." "What he says is he knows nothing about it "

       The court denied Romo's suppression motion, finding that Romo's Miranda rights

were not violated because Romo knew and understood his right to remain silent, he

continued to speak to Detective Hernandez and deny involvement in the stabbing, and,

thus, his actions constituted an implied waiver of his right to remain silent.

       B. Applicable Legal Principles

       In People v. Williams (2010) 49 Cal.4th 405 (Williams), the California Supreme

Court summarized the general law governing Miranda claims: "The [United States

Supreme Court] has stated in summary that to counteract the coercive pressure inherent

in custodial surroundings, 'Miranda announced that police officers must warn a suspect

                                             10
prior to questioning that he has a right to remain silent, and a right to the presence of an

attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes

to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states

that he wants an attorney, the interrogation must cease until an attorney is present.

[Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish

a valid waiver, the State must show that the waiver was knowing, intelligent, and

voluntary under the "high standar[d] of proof for the waiver of constitutional rights [set

forth in] Johnson v. Zerbst [(1938)] 304 U.S. 458." ' [Citation.] [¶] 'The prosecution

bears the burden of demonstrating the validity of the defendant's waiver by a

preponderance of the evidence.' [Citations.] In addition, '[a]lthough there is a threshold

presumption against finding a waiver of Miranda rights [citation], ultimately the question

becomes whether the Miranda waiver was [voluntary,] knowing[,] and intelligent under

the totality of the circumstances surrounding the interrogation.' " (Id. at p. 425.)

       In People v. Wash (1993) 6 Cal.4th 215, 238, our high state court explained that,

"[o]nce [Miranda] warnings have been given, '[i]f the individual indicates in any manner,

at any time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.' [Citation.] Once such a request is made, it must be

'scrupulously honored' [citation]; the police may not attempt to circumvent the suspect's

decision 'by refusing to discontinue the interrogation upon request or by persisting in

repeated efforts to wear down his resistance and make him change his mind.' "




                                             11
       In Berghuis v. Thompkins (2010) 560 U.S. 370 (Berghuis), the United States

Supreme Court clarified that a Miranda waiver need not be formal or express, but rather

may be implied from all the circumstances. (Id. at p. 2261.)

       The Berghuis court also addressed the standards to be applied when evaluating

whether a defendant has invoked his right to remain silent, thus requiring the

interrogation to cease. Berghuis held the accused must make an unambiguous assertion

of the right, and if the accused makes an ambiguous or equivocal statement or makes no

statement, the police are not required to end the interrogation or ask clarifying questions.

(Berghuis v. Thompkins, supra, 560 U.S. 370 at pp. 2259-2260.) Berghuis reasoned:

"A requirement of an unambiguous invocation of Miranda rights results in an objective

inquiry that 'avoid[s] difficulties of proof and . . . provide[s] guidance to officers' on how

to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or

statement could require police to end the interrogation, police would be required to make

difficult decisions about an accused's unclear intent and face the consequence of

suppression 'if they guess wrong.'" (Id. at p. 2260.) The court also explained that

suppression of a voluntary confession in the face of an ambiguous or equivocal act would

place a significant burden on society's interest in prosecuting criminal activity, and " 'full

comprehension of the rights to remain silent and request an attorney are sufficient to

dispel whatever coercion is inherent in the interrogation process.' " (Ibid.)

       "Statements obtained in violation of Miranda are inadmissible to establish guilt."

(People v. Sims (1993) 5 Cal.4th 405, 440.)



                                              12
       1. Standard of review

       "On appeal, we conduct an independent review of the trial court's legal

determination and rely upon the trial court's findings on disputed facts if supported by

substantial evidence." (People v. Williams, supra, 49 Cal.4th at p. 425.)

       "The erroneous admission of statements obtained in violation of Miranda is

reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18

(Chapman). [Citations.] Under Chapman, reversal is required unless the People

establish that the court's error was 'harmless beyond a reasonable doubt.'" (In re Z.A.

(2012) 207 Cal.App.4th 1401, 1422.)

       C. Analysis

       Romo asserts that "[t]his case is on all fours with and is controlled by this court's

recent decision in In re Z.A.[, supra,] 207 Cal.App.4th [at p.] 1401." We disagree. In

that case, the minor and her boyfriend were arrested after a search of their car in the

secondary screening area at the San Ysidro port of entry led to the discovery of a package

containing marijuana. (Id. at pp. 1405-1406.) Immigration and customs agents

interviewed the minor after her arrest and informed her of her Miranda rights, including

her right to remain silent, which she waived; and she began to answer the agents'

questions. (Id. at pp. 1408-1409.) Thereafter, the minor told the agents, " 'I don't want to

answer anymore [sic] questions.' " (Id. at p. 1410.) Immediately thereafter, the minor

said she wanted to know whether her boyfriend " 'is going to stay here how much time.' "

(Ibid.) The agents responded by intensifying their interrogation of the minor. (Id. at



                                             13
p. 1422.) The juvenile court denied the minor's motion to suppress evidence of

statements she made during the interrogation. (Id. at pp. 1412-1413.)

       On appeal, this court reversed the judgment, concluding the juvenile court should

have suppressed all of the statements the minor made after she invoked her right to

remain silent. (In re Z.A., supra, 207 Cal.App.4th at pp. 1422, 1428.) We explained that

the minor had "unambiguously invoked her right to remain silent by expressly stating that

she did not want to answer any more questions during the interrogation. Immediately

thereafter, [she] made a statement to the officers about [her boyfriend's] custody status,

stating, 'Well, I want to know if [he] is going to stay here how much time.' Rather than

expressing a desire to resume the interrogation, [the minor's] statement is more

reasonably interpreted as expressing her interest in knowing whether, and for how long,

her boyfriend was to remain detained at the border crossing." (Id. at p. 1420, italics

added.) Citing Oregon v. Bradshaw (1983) 462 U.S. 1039, we concluded the minor's

inquiry about the custody status of her boyfriend could not reasonably be deemed an

invitation to reinitiate a generalized discussion relating to the investigation; rather, it

concerned the routine incidents of the custodial relationship. (In re Z.A., supra, at

p. 1418.) We noted that, after the minor's invocation, the agents "did not readmonish

[her] concerning her right to remain silent or inquire as to whether she wanted to resume

the interrogation." (Id. at p. 1421.) "In sum," we explained, "after [the minor] invoked

her right to remain silent, the officers failed to 'scrupulously honor[]' that invocation, and

instead, intensified their interrogation." (Id. at p. 1422.)



                                               14
       Here, after Detective Hernandez informed him of his Miranda rights and asked

him whether he "want[ed] to talk about what happened," Romo said, "No, well, I wanna

remain silence [sic] . . . ." This statement, viewed in isolation, appears to be an

invocation of his right to remain silent. However, immediately after Romo made that

statement—and in the same sentence—he, unlike the minor in In re Z.A., initiated a

generalized inquiry directly relating both to his own custody status and the investigation.

Specifically, Romo stated:

           "No, well, I wanna remain silence [sic], but . . . what I mean is, well,
           I wanna know what's . . . what . . . why you're bringing me in and
           taking me to the hall . . . you know what I mean?" (Italics added.)

       We need not decide whether Romo unambiguously invoked his right to remain

silent. For purposes of analysis only, we shall assume that he unambiguously invoked his

right to remain silent and that the admission of statements he made after the assumed

invocation, including the statement indicating he was in Mexicali with his mother at the

time of the stabbing, was erroneous. Thus, the determinative issue we must decide is

whether the assumed error was harmless beyond a reasonable doubt. (See In re Z.A.,

supra, 207 Cal.App.4th at p. 1424.)

       Romo claims the court's admission of his statements prejudiced him by weakening

his alibi defense. Specifically, he asserts "[t]he key to [his] defense . . . was his three

alibi witnesses. His friend [Jimenez], [Jimenez's] mother and [Jimenez's] grandmother all

testified that at the time [Meza] was assaulted[, he (Romo)] was at a carne asada

barbeque at [Jimenez's] grandmother's home [in El Centro]. That alibi witness testimony



                                              15
should have tipped the scales for [Romo], raising significant doubts regarding the

eyewitness identification by [Meza]."

       However, the record shows, as Romo acknowledges, that the prosecution's case

against him turned on Meza's eyewitness identification of Romo as one of his assailants.

The jury was tasked with assessing the strength of Meza's identification of Romo, and

ample evidence supported the jury's determination that Meza's identification of Romo

was credible. Meza testified he knew Romo by his nickname Pistol at the time of the

attack, and he recognized Romo because he had seen and interacted with him several

times around their neighborhood before the attack. Meza clearly described Romo's role

in the attack, telling the jury that Romo stood "[r]ight in front of me," within arm's reach,

while the rest of the group circled around him, and Romo said "What's up?" in an angry

and threatening manner. Meza testified that someone behind him stabbed him and struck

him in the back of the head and neck and he fell to the ground. Meza described for the

jury the clothing that Romo was wearing at the time of the stabbing. Meza also testified

that, when Romo, Scott, and the rest of the group drove off in the white car after the

attack ended, he saw Romo sitting in the passenger seat as the car drove away. Meza told

the jury the car was about 10 feet away from him when it drove by, and he was able to

see Romo because the passenger seat window, unlike the back windows, was not tinted.

       Meza also testified that, after he arrived at Medina's house and told her he had

been attacked by a group, she showed him a photograph of a group of five males (which

the prosecution introduced as exhibit 10), one of which—at the far right—was Romo.



                                             16
When asked him whether he recognized anyone in the picture Meza pointed out Romo to

her.

       The prosecution also presented the testimony of Detective Hernandez, who stated

he interviewed Meza several times about the stabbing, and, Meza told him during the first

interview that Romo stood next to another assailant nicknamed "Tiny" during the attack.

Detective Hernandez also testified that Meza identified Romo out of a photographic

lineup as one of the attackers.

       The totality of the foregoing identification evidence amply established that Romo

was one of Meza's attackers. Thus, the fact that the court's admission of Romo's

statement—that he was in Mexicali on the night of the stabbing—contradicted and

diminished the strength of his alibi defense, was of no moment. For all of the foregoing

reasons, we conclude the assumed error was not prejudicial because it was harmless

beyond a reasonable doubt.

                                  II. NEW TRIAL MOTION

       Defendants contend the court erred in denying their motion for a new trial, in

which they claimed Juror No. 1 knew and concealed the fact that Scott's trial counsel,

Steven C. Honse, was a partner in the law firm that was then representing Juror No. 1's

former husband in a child custody and child support modification proceeding. We

conclude the court properly denied defendants' request for an evidentiary hearing and

their motion for a new trial.




                                            17
       A. Background

       1. Juror No. 1's responses during voir dire

       During voir dire in January 2012, the court introduced the prosecutor, defendants,

and defendants' counsel—Romo's counsel, John Breeze, and Scott's counsel, Steve

Honse—by name to the jury panel. The prosecutor, both defense counsel, and the court

addressed the panel of prospective jurors and informed them of the general facts of the

case, the nature of the charges, and the names of the expected witnesses.

       Shortly thereafter, the court asked the jury panel if anyone knew or had heard of

the attorneys, defendants or witnesses. It is undisputed that P.B.—Juror No. 1—did not

raise her hand.

       Later, during questioning of the prospective jurors, Juror No. 1 stated she was

divorced, she had four children, she worked as a correctional counselor for the California

Department of Corrections, and she also had worked as a correctional officer. The court

asked Juror No. 1 whether she could impartially assess the evidence and witnesses in this

case, and she replied, "Absolutely." The court also asked her "Can you think of any

reason why you might not be able to be fair?" and she responded, "No, sir."

       2. Defendants' motion for new trial

       Scott filed a motion for a new trial, with supporting declarations, based on alleged

misconduct by Juror No. 1. Romo joined in the motion. Defendants' motion alleged

Juror No. 1 engaged in misconduct during voir dire by withholding material information

that the law firm of Scott's defense counsel was then representing Juror No. 1's former

husband in a child custody and child support modification proceeding.

                                             18
       The moving papers included a declaration by Honse, who stated that (1) he was

appointed in June 2011 to represent Scott; (2) in December 2011, his law firm—Law

Offices of Henderson & Honse—was retained by M.L. to represent him in a contested

child custody and child support modification proceeding; (3) M.L. told Honse that the

name of M.L.'s ex-spouse was P.L., and that name was entered into the firm's conflict

database; (4) after the jury returned their verdict convicting Scott on February 2, 2012,

Honse's assistant, Melissa Hernandez, advised him that one of the jurors resembled an

opposing party in one of the firm's current cases; (5) Honse reviewed the file for M.L.,

spoke with his law partner, Veronica Henderson, and determined that Juror No. 1 and

P.L. were the same person; (6) Honse reported his findings to the prosecutor and advised

her he would be filing a motion for new trial and a request for investigative services; (7)

numerous attempts were made to interview Juror No. 1, but she refused to provide an

interview; (8) on February 23, 2012 (after the trial), Honse appeared in M.L.'s case

because his partner Henderson was called to another courtroom; and (9) Honse personally

saw and recognized P.L. as juror P.B.

       Defendants' new trial motion was also supported by Henderson's declaration and

by the declaration of Honse's private investigator who stated that when he attempted to

contact Juror No. 1 at her home in March 2012 to serve her with a subpoena, she went

into her house and refused to speak with him.

       Also attached to the motion were copies of several documents that Juror No. 1's

ex-spouse, M.L., served on her attorney at the Marcus Family Law Center in the family

law court proceeding. Included in these exhibits was a November 2011 substitution of

                                             19
attorney indicating that Honse's partner, Henderson, had become the attorney of record

for M.L., who had been representing himself in propria persona. Although the heading

on the rest of the documents listed the name of the law firm (Law Office of Henderson &

Honse), Henderson's name (Veronica A. Henderson), and Honse's name (Steven C.

Honse) in that order, the heading on the substitution of attorney listed Henderson's and

the law firm's names, but did not separately list Honse's name.

       In their opposition, the People argued that defendants had presented no evidence

showing that Juror No. 1 intentionally or unintentionally concealed information and

stated that she "may not have known that [Honse] represented her husband in their family

law matter until he appeared in family law court on February 23[, 2012], about three

weeks after the verdict in this case." The People also argued that the new trial motion

was based on alleged misconduct that did not apply to Romo.

       a. Hearing and ruling

       The court conducted a hearing on the new trial motion during the sentencing

proceeding. Honse stated he was "pretty much" submitting on the moving papers, but

argued that after the trial concluded in this matter, he discovered that his office was

representing Juror No. 1's ex-husband in a custody dispute that involved her, and the

hearing in the custody case took place a couple of weeks after Juror No. 1 and the other

jurors rendered their verdict. He stated that as Juror No. 1 "sat there on the jury," she

"had a pending [hearing] date with me" and every document in the custody case listed his

name at the top. He asserted he thought it was "inconceivable that she didn't know, and



                                             20
then when the court asked her whether or not she knew any of the attorneys, I think that

she was disingenuous when she said that she did not."

       Romo's counsel argued the evidence presented in support of the new trial motion

evidence established a prima facie case of misconduct that gave rise to a presumption of

prejudice, and requested that the court conduct an evidentiary hearing to determine

whether Juror No. 1 "recognized [Honse] as the attorney that was representing he ex-

husband."

       The prosecutor argued the motion should be denied because defendants had failed

to show that Juror No. 1 intentionally or unintentionally concealed information. The

prosecutor pointed out that it was Honse's law firm partner Henderson, not Honse, who

was the attorney of record in Juror No. 1's custody case, as shown by the copy of the

substitution of attorney submitted with the new trial motion papers. The prosecutor also

pointed out that Honse stated in his declaration that the only time he personally appeared

in the child custody case was three weeks after the verdict, and that, "if Juror No. 1 saw

him at that hearing, it was after the verdict." The prosecutor also argued it was "mere

speculation and conjecture and hope that [Juror No. 1] should have known, which is not

the standard."

       a. Ruling

       The court denied defendants' motion for a new trial. In its ruling, the court noted

that "[t]here is no evidence that [Honse] physically personally appeared or had any

personal interaction with [Juror No. 1]. There's evidence that [Juror No. 1] affirmed

under penalty of perjury, she took an oath that she did not know him or knew of him."

                                            21
The court observed that "[t]he fact that counsel's name appears on a pleading is not

addressed by any evidence that the juror really recognized or had heard of him." The

court also stated, "[W]hile we can speculate as to what [Juror No. 1] should have known,

or might have known, we might infer also that [Honse] should have known, might have

known, could have discovered." Finding the defendants had failed to meet their burden

of proof, the court stated there was "no basis to infer that a party in a civil matter, no

matter how highly contested, should know that the person whose name appears at the top

of the papers, but is not the attorney of record, is not the person appearing in court when a

matter is in court, and is not signing the documents or the papers should know that there

is a relationship between those matters and the matter before the court with which she has

no involvement of any kind."

       The court also denied the defendants' request for an evidentiary hearing "because

of the failure of [the] burden of proof, and because of the lack of materiality through the

alleged concealment or failure to disclose or misconduct." The court found that Juror

No. 1's exercising her right not to discuss to case with defense counsel "cannot be the

evidence of . . . bias" in light of its instruction to the jury, counsel, and counsel's agents

"not to have contact with her without her consent for a reasonable time."

       B. Applicable Legal Principles

       In People v. Cissna (2010) 182 Cal.App.4th 1105, this court explained that "[a]

defendant has a constitutional right to a trial by an impartial jury. [Citation.] An

impartial jury is one in which no member has been improperly influenced and every

member is capable and willing to decide the case solely on the evidence before it. To

                                               22
effectuate this right, the prospective jurors are subjected to voir dire questioning under

oath to uncover any bias, and the selected jurors are sworn to decide the case based on the

evidence presented to them and the instructions given by the court." (Id. at p. 1115.)

        "A juror who conceals relevant facts or gives false answers during the voir dire

examination . . . undermines the jury selection process and commits misconduct." (In re

Hitchings (1993) 6 Cal.4th 97, 111 (Hitchings).)

        " '[J]uror misconduct involving the concealment of material information on voir

dire raises the presumption of prejudice.' " (People v. Carter (2005) 36 Cal.4th 1114,

1208, quoting Hitchings, supra, 6 Cal.4th at p. 119.) Although juror misconduct raises a

presumption of prejudice, "[a]ny presumption of prejudice is rebutted, and the verdict

will not be disturbed, if the entire record in the particular case, including the nature of the

misconduct or other event, and the surrounding circumstances, indicates there is no

reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors

were actually biased against the defendant." (In re Hamilton (1999) 20 Cal.4th 273,

296.)

        Where the admissible evidence raises a strong possibility that misconduct has

occurred, the trial court has discretion to determine whether to conduct an evidentiary

hearing to resolve factual disputes raised by the claim of juror misconduct. (People v.

Avila (2006) 38 Cal.4th 491, 604.) A defendant is not entitled to an evidentiary hearing

"as a matter of right. Such a hearing should be held only when the court concludes an

evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.]

'The hearing . . . should be held only when the defense has come forward with evidence

                                              23
demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon

such a showing, an evidentiary hearing will generally be unnecessary unless the parties'

evidence presents a material conflict that can only be resolved at such a hearing.' " (Ibid.)

       1. Standard of review

       On appeal from a ruling denying a new trial motion based on juror misconduct, we

accept the trial court's credibility determinations and factual findings if supported by

substantial evidence, and exercise our independent judgment on the issue of whether

prejudice arose from the misconduct (i.e., whether there is a substantial likelihood of

juror bias). (People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5; see People v. Ault

(2004) 33 Cal.4th 1250, 1263-1264.)

       "We review for abuse of discretion the trial court's denial of defendant's

postverdict request for an evidentiary hearing into allegations of jury misconduct."

(People v. Carter (2003) 30 Cal.4th 1166, 1216.)

       C. Analysis

       Defendants claim the court erred in denying their new trial motion because the

declarations of his trial counsel Honse, Honse's assistant, and his private investigator,

filed in support of the motion, established that Juror No. 1 committed prejudicial

misconduct by concealing her knowledge during voir dire and the subsequent trial

proceedings in this matter that Honse's law firm at that time represented Juror No. 1's




                                             24
former husband in a contested child custody and support modification proceeding in

family court.5

       Having reviewed the record, we conclude the court did not err in denying

defendants' new trial motion because, as the court properly found, defendants failed to

meet their burden of proving Juror No. 1 engaged in misconduct, and there was no

evidence showing a substantial likelihood that Juror No. 1 was actually biased against

either Scott or Romo.

       "[A]n 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." (In re

Hamilton, supra, 20 Cal.4th at p. 300.)

       Here, the only reasonable inference that may be drawn from the record is that

Juror No. 1 at most committed an honest mistake when, by failing to raise her hand

during voir dire, she indicated she did not know Honse. As the Attorney General points

out, Scott's claim that Juror No. 1 concealed that she knew Honse represented her former

husband in the family court matter rested on evidence that she was served with various

court documents in the family court case and that Honse's name was listed at the top of

the title pages of those papers along with the name of his law firm and his law partner.

Specifically, Scott asserted in his memorandum of points and authorities that, "[a]t the

time [Juror No. 1] stated she did not know [Honse], she had a pending hearing where



5    In his one-paragraph joinder in Scott's arguments on appeal regarding this issue,
Romo asserts that any prejudice to Scott "certainly spilled over" and also affected him
(Romo).
                                            25
[Honse] represented her ex-husband as well as a series of pleadings, letters, and other

materials where [Honse's] name was repeatedly displayed on every title page." During

his oral argument at the hearing on the new trial motion, Honse repeated this claim,

stating that "every moving paper has my name at the top of the sheet."

       In fact, as already noted, one of the documents filed in the family court case was a

substitution of attorney—a copy of which Honse submitted in support of Scott's new trial

motion—filed in November 2011 before Juror No. 1 was questioned during voir dire in

this case in January 2012, indicating that Honse's partner, Henderson, had become the

attorney of record for Juror No. 1's former husband (M.L.), who had been representing

himself in propria persona. Although the headings on the rest of the family court

documents listed the name of the law firm, the name of Honse's partner Henderson, and

Honse's name in that order, the heading of the substitution of attorney listed the law

firm's and Henderson's names, but did not separately list Honse's name. Thus, the

uncontested evidence in the record shows that Henderson, not Honse, was the attorney of

record in the family court case.

       It is also undisputed, as Honse acknowledged in his declaration in support of the

new trial motion, that he did not make a personal appearance in the family court

proceedings until February 23, 2012, about three weeks after the jury returned its guilty

verdict against Scott on February 2 of that year.




                                            26
       Thus, the reasonable inference to be drawn from these undisputed facts is that, at

the time of voir dire and throughout the trial in this case, Juror No. 1 had not seen Honse

at any of the family court hearings and would not have recognized him as part of her

former husband's legal team. Her former husband had represented himself before the

substitution of attorney was filed in November 2011 before voir dire commenced in

January 2012, and between November 2011 and February 23, 2012—when Honse made

his first physical appearance in family court three weeks after the February 2, 2012

verdicts in this case—Honse's partner had made the appearances on behalf of Juror

No. 1's former husband in that court. Scott failed to meet his burden of presenting

evidence supporting a reasonable inference that Juror No. 1 did not commit an honest

mistake. He presented no evidence that would support a reasonable inference that Juror

No. 1 was actually biased against him or Romo. (See In re Hamilton, supra, 20 Cal.4th

at pp. 296, 300.) For the foregoing reasons, we conclude the court properly denied

defendants' request for an evidentiary hearing and their motion for a new trial.




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                                    DISPOSITION

      The judgments are affirmed.


                                                  NARES, J.
I CONCUR:


BENKE, Acting P. J.


I CONCUR IN THE RESULT:


HALLER, J.




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