Filed 7/26/18




      IN THE SUPREME COURT OF CALIFORNIA

                                    )
In re ABELINO MANRIQUEZ             )
                                    )                               S141210
            on Habeas Corpus.       )
____________________________________)




          Petitioner Abelino Manriquez filed an original habeas corpus petition in
this court seeking relief from his multiple murder convictions and death sentence.
We issued an order to show cause with respect to petitioner’s claim that
prejudicial juror misconduct occurred when a juror did not timely disclose a
history of childhood abuse.
          After an evidentiary hearing, the referee found the juror’s nondisclosure
was neither intentional nor deliberate, and that the juror was not biased against
petitioner; as such, there was no prejudicial juror misconduct. We agree generally
with the referee’s findings, and therefore hold that petitioner is not entitled to
relief.
                            I. PROCEDURAL BACKGROUND
          Petitioner was sentenced to death in 1993 after a jury convicted him of four
counts of first degree murder and found true, among other things, the special
circumstance of multiple murder. (Pen. Code, §§ 187, 190.2, subd. (a)(3).) We
unanimously affirmed petitioner’s guilt verdict and death sentence. (People v.
Manriquez (2005) 37 Cal.4th 547 (Manriquez).)



                            SEE DISSENTING OPINIONS
       Petitioner filed this habeas corpus petition, his first, in 2006, and amended
it in 2008. In claim 2 of the petition, he alleged the jury foreperson, C.B., had
committed misconduct by concealing having been physically and sexually abused
as a child. A pretrial juror questionnaire had asked prospective jurors whether
they experienced any violent and criminal acts, and Juror C.B. generally
responded in the negative. Petitioner produced C.B.’s posttrial juror questionnaire
and a declaration, in both of which she had described being raped and beaten as a
child — facts that were not disclosed on her pretrial questionnaire.
       We issued to the Secretary of the Department of Corrections and
Rehabilitation an order to show cause why we should not grant petitioner relief on
the ground of juror misconduct. After considering the Attorney General’s return
and petitioner’s traverse, we ordered a reference hearing. The order directed the
referee to address four questions:
       1. What were Juror C.B.’s reasons for failing to disclose her childhood
abuse on her juror questionnaire and during voir dire at petitioner’s trial?
       2. Was the nondisclosure intentional and deliberate?
       3. Considering Juror C.B.’s reasons for failing to disclose these facts, was
her nondisclosure indicative of juror bias?
       4. Was Juror C.B. actually biased against petitioner?
       We appointed William C. Ryan, Judge of the Superior Court of Los
Angeles County, as the referee. The referee conducted an evidentiary hearing in
which Juror C.B. testified. The referee then filed a 14-page report with
recommendations. Petitioner and the Attorney General filed postreport briefing,
and petitioner presented his objections to the referee’s report.
                                II. TRIAL EVIDENCE
       A lengthy recitation of the facts of petitioner’s crimes is unnecessary; they
are contained in our prior decision. (Manriquez, supra, 37 Cal.4th at pp. 552-

                                          2
568.) It is sufficient for our purposes to note the jury convicted petitioner of
murdering four people on separate occasions, which made him eligible for the
death penalty.
       More relevant to our analysis is the evidence presented during the penalty
phase. During its case in aggravation, the prosecution presented evidence of
petitioner’s involvement in three additional killings, and that petitioner had raped a
friend’s babysitter at gunpoint. (Manriquez, supra, 37 Cal.4th at pp. 568-570.)
       “The defense evidence in mitigation was introduced through the testimony
of five of [petitioner’s] relatives, each of whom described the deprivation and
abuse [petitioner] suffered as a child in rural Mexico. The witnesses testified that
[petitioner’s] childhood was marred by extreme cruelty, vicious beatings, grinding
poverty, forced labor, and a lack of care, education, affection, or encouragement
by the adults in [petitioner’s] life.
       “Cecilia Manriquez Solis, [petitioner’s] first cousin, testified that she and
[petitioner] resided as children on a ranch they shared with her grandmother and
[petitioner’s] father, in Mexico. The area in which the ranch was located lacked
electricity, a school, church, store, or regular law enforcement, and none of the
residences on the ranch had windows or doors. The children worked from 3:00
a.m. to approximately 5:00 p.m. — farming, planting, and collecting firewood and
water, every day of the year except Good Friday. During the few years that Solis
and [petitioner] resided together at the ranch, she observed him beaten several
times, ‘sometimes two to three times per day.’ These beatings included one
occasion when [petitioner] was seven years of age: he was tied to a tree and
beaten with a whip, and Solis recalled that ‘my grandmother got tired of hitting
him, so my uncle, his father continued to hit him.’ On other occasions [petitioner]
was beaten with a whip or a belt. Such beatings occurred on a daily basis. Once
[petitioner] was hog-tied and left all night in a storage bin for corn. Solis never

                                          3
saw [petitioner] receive any sign of love or affection from his grandmother or his
father.
          “Cresencia Tamayo, [petitioner’s] aunt, also resided at the ranch when
[petitioner] was a young child, and testified that [petitioner’s] chores also involved
retrieving the ‘cattle, beasts, burros . . . .’ [Petitioner] was sent on errands, and if
he failed to perform he ‘would be hit or beaten’ by his father, uncles, or
grandmother, several times ‘all over with the belt’ or with a rod or stick.
[Petitioner] and the other children worked each day of the year and never were
allowed to play except ‘for a little while’ on Good Friday. ‘There were no toys,
[and] [t]here was no Christmas.’ Rarely was any sort of affection shown to
[petitioner].
          “Joaquina Ward, who described herself as a half sister to [petitioner’s]
cousin Cecilia Manriquez Solis, testified that she also resided at the ranch for a
few months when [petitioner] was a child. She recalled that the children ‘were
treated poorly’ and that ‘[w]hen they didn’t do what they were told to do, they
were hit,’ [petitioner] more often than the other children. On one occasion, Ward
encountered [petitioner] ‘tied by the legs and the hands,’ because ‘he had been
sent up to the hills to retrieve some firewood; and because he did not bring the
kind that his father had asked for, he was punished.’ Ward untied [petitioner],
after which ‘he went down and turned into a little ball, and he stayed there crying.’
She never saw anyone act affectionately toward [petitioner].
          “Juan Manriquez, [petitioner’s] cousin, testified that he resided with
[petitioner] at the ranch and that the children were prohibited from playing; when
they did, they were beaten with ‘either a rod or a whip.’ Manriquez recalled that
[petitioner] was beaten ‘for any reason,’ two or three times per day, ‘and we could
hear his screaming when he was being beaten.’ On one occasion, [petitioner] was
caught bathing with his cousin, which led to another beating while [petitioner] was

                                            4
tied up. When the boys’ grandmother caught them eating fruit, she ‘burned our
feet so we couldn’t run away and so we wouldn’t do it again.’ [Petitioner]
attempted to run away numerous times, which in turn led to his being beaten.
Ultimately, [petitioner] was able to run away and find his mother.
       “Lorenza Sanchez, [petitioner’s] half sister, testified that when [petitioner]
was approximately 12 or 13 years of age, he came to live with her and their
mother at the home where their mother was employed, at which time Sanchez first
learned she had a half brother. They resided together for approximately four or
five years, during which time they moved to a larger ranch — one that had a
school — but [petitioner] did not attend the school, because he spent his time
assisting other individuals in harvesting corn. During this period, [petitioner’s]
mother cohabitated with a man who beat Sanchez and her sister, actions that
[petitioner’s] mother witnessed, angering [petitioner] who once threw a brick at
the man. Sanchez did not recall her mother showing any affection toward
[petitioner].” (Manriquez, supra, 37 Cal.4th at pp. 570-571.)
                       III. HABEAS CORPUS PROCEEDINGS
       In support of petitioner’s claim of juror misconduct, the following evidence
was presented.

       A. At Petitioner’s Trial
       Before the start of petitioner’s 1993 trial, prospective jurors received
written questionnaires. The prospective jurors signed the completed
questionnaires under penalty of perjury.
       In pertinent part, Question 63 of the questionnaire asked, “Have you or
anyone close to you been the victim of a crime, reported or unreported?” On Juror
C.B.’s questionnaire, the “No” answer was checked but crossed out, and the “Yes”




                                           5
answer was checked. C.B. wrote, “Home was robbed” one time, and listed her
“[r]oommate before we lived together” as the victim.
        Question 64 asked, “Have you or any relative or friend ever experienced or
been present during a violent act, not necessarily a crime?” Juror C.B. checked
“No.”
        Question 65 asked, “Have you ever seen a crime being committed?” Juror
C.B. checked “No.”
        Question 66 asked, “Have you ever been in a situation where you feared
being hurt or being killed as a result of violence of any sort?” Juror C.B. checked
“No.”
        Juror C.B. did not otherwise disclose any history of abuse, being a victim,
or experiencing or seeing violence or a crime. During voir dire, neither party
examined her about these topics. Because petitioner had peremptory challenges
remaining when C.B. was in the jury box, he could have challenged her, but did
not. C.B. served as the jury’s foreperson.

        B. After Petitioner’s Trial
        A voluntary posttrial questionnaire asked, among other things, for
suggestions that could be used to improve trials in the future. Juror C.B. wrote,
“The mitigating circumstances offered during the sentencing phase [were] actually
a detriment in most of the [jurors’] minds, especially mine. I grew up on a farm
where I was beat[en], raped, [and] used for slave labor from the age of [five
through] 17. I am successful in my career and am a very responsible Law abiding
citizen. It is a matter of choice!” (Underscoring in original.)
        In a voluntarily given 2007 declaration, signed under penalty of perjury,
Juror C.B. wrote, “Some of the questions on the [pretrial juror] questionnaire
seemed to have no purpose. Superficial questions about where you were brought



                                          6
up, or your education, or income should be no one’s business. I do not remember
if questions were asked about whether we were victims of a crime.” She added,
“As to the mitigating evidence, I recall that [petitioner] grew up on a farm and was
abused. I told the other jurors about what I had heard about farms in Mexico. But,
I was regularly beaten from age three to age [17] while I lived with a foster mother
on a farm in Pennsylvania. . . . At the farm there was also a home for aged people
and one of the residents raped me when I was five. Having been through abuse
myself, I do not view abuse as an excuse. I told the other jurors about my
experience and my belief that childhood abuse was not an excuse. [¶] The abuse
issue was discussed in the penalty deliberations. A couple of other jurors also had
rough childhoods. I remember that one of the jurors . . . said he had a stepfather
who would beat him once in a while. [¶] I had heard that life on farms in Mexico
was real tough, with long work hours and very little food. Again, I did not accept
this as an excuse and said so.”
       In a voluntarily given 2012 declaration, signed under penalty of perjury,
Juror C.B. wrote, “When I was filling out the [pretrial] juror questionnaire, I
answered the questions as honestly as I could. I did not attempt to conceal any
information from anybody. When I answered the questionnaire, I was not thinking
about the abuse I suffered as a child, because those are not memories I keep at the
forefront of my mind. It was only after [petitioner] presented evidence of his
childhood abuse as mitigating circumstances that I thought about the abuse I
suffered as a child. [¶] Specifically, when I was asked in questions 63 through 66
of the [pretrial] juror questionnaire . . . I did not think that those questions were
about things that happened to me during my childhood. Instead I believed the
questions were asking about things that happened to me as an adult. That is the
reason I did not disclose the fact that I was raped when I was five years old, or
abused as a child.” She explained, “I did not try to conceal the fact that I had been

                                           7
raped and abused as a child, and freely shared that information with my fellow
jurors during the penalty phase deliberations after [petitioner] offered evidence of
his own abusive childhood as mitigating circumstances.” She stated, “I was not
biased against [petitioner], and based all of my decisions on the evidence that was
presented during the trial.”

       C. Evidentiary Hearing
       Juror C.B. testified at the evidentiary hearing, and her testimony was
consistent generally with her posttrial questionnaire and declarations. C.B. was
born in Pennsylvania, where as a child she lived on a farm. She testified that “in
the [1950s] when I grew up, abuse was not a crime. Kids were abused all the time.
And using kids for hard labor was very common.”
       Juror C.B. also testified about being physically abused by more than one
person from the age five to approximately age 13 or 14. She had feared being hurt
during her abusive upbringing. With respect to the sexual abuse, she testified to
having been “molested.” Before petitioner’s trial, she had shared her childhood
experiences with “only really close friends.”
       Juror C.B. had “several days” to complete the juror questionnaire. Before
answering Questions 63 through 66, she thought about how to respond. During
that process, her childhood experiences “did not come to mind.” She understood,
at the time of petitioner’s trial, that the questions had no time parameters, that is,
they were not confined to violent or criminal acts experienced only during
adulthood.
       With respect to Question 64, which asked about experiencing a violent act,
Juror C.B. testified it was an important question that was not unduly invasive. She
also understood that, under the “standards” at the time of petitioner’s trial,
molesting a five-year-old child was a criminal act and an act of violence, and that



                                           8
physically abusing a child was also an act of violence. When answering Question
64, however, Juror C.B. did not disclose her childhood abuse because “the
question indicated a violent act not necessarily a crime, and I did not consider my
childhood a violent act.” Similarly, she “did not consider anything in my life as
criminal acts.” She elaborated: “I did not consider myself a victim of a crime. I
was a victim of circumstance. And that being said, I never thought of myself as
having been a victim of any kind. So [at petitioner’s trial], I did not even think
about the fact that I had been criminally assaulted . . . . [¶] And as far as the
molestation, it was a one-time thing, it never happened again. It went into the
recesses of my mind. And it was not even thought of . . . until the very end of this
whole trial.” C.B. did not consider her childhood molestation to be an act of
violence because “you had to be there. When you are growing up and that’s your
environment, you take it in stride.”
       Juror C.B. testified that, at the time of petitioner’s trial, she completed the
juror questionnaire honestly. She acknowledged, however, that in hindsight she
should have answered both Question 64 and the inquiry regarding fear of being
hurt in the affirmative.
       Juror C.B. further testified that the penalty phase “triggered” her childhood
memories. Specifically, she testified, “I know we’re not supposed to say what
other people were saying, but there was another [juror] who brought it up himself
about having been beaten quite often by his father, and all of these things triggered
in my mind my own abuse. [¶] . . . [¶] [W]e shared our life experiences for the
jury’s benefit to show we are productive people, we don’t commit murders.” She
told the other jurors: “I had been raised in an abusive environment and had been
molested, raped when I was five, and that I did not feel that was an excuse to
become an unproductive, violent person in my adulthood.”



                                           9
       Prior to the trial, Juror C.B. knew nothing about petitioner. She learned
about petitioner’s childhood for the first time during the penalty phase.
                                  IV. DISCUSSION
       “Because a petition for a writ of habeas corpus is a collateral attack on a
presumptively final criminal judgment, ‘the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.’
[Citation.] To obtain relief, the petitioner must prove by a preponderance of the
evidence the facts that establish entitlement to relief.” (In re Cowan (2018)
5 Cal.5th 235, 243.)
       The law concerning juror concealment is settled. As this court explained in
In re Hitchings (1993) 6 Cal.4th 97 at page 110 (Hitchings), “[w]e begin with the
general proposition that one accused of a crime has a constitutional right to a trial
by impartial jurors. [Citations.] ‘ “The right to unbiased and unprejudiced jurors
is an inseparable and inalienable part of the right to trial by jury guaranteed by the
Constitution.” ’ ”
       We have also explained the important role of the voir dire process: “The
impartiality of prospective jurors is explored at the preliminary proceeding known
as voir dire. ‘Voir dire plays a critical function in assuring the criminal defendant
that [his or her] Sixth Amendment right to an impartial jury will be honored.
Without an adequate voir dire the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s
instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly,
lack of adequate voir dire impairs the defendant’s right to exercise peremptory
challenges where provided by statute or rule . . . .’ ” (Hitchings, supra, 6 Cal.4th
at p. 110.)
       “A juror who conceals relevant facts or gives false answers during the voir
dire examination thus undermines the jury selection process and commits

                                          10
misconduct.” (Hitchings, supra, 6 Cal.4th at p. 111.) Such misconduct includes
the unintentional concealment, that is, the inadvertent nondisclosure of facts that
bear a “ ‘ “substantial likelihood of uncovering a strong potential of juror bias.” ’ ”
(In re Boyette (2013) 56 Cal.4th 866, 889 (Boyette).)
       “Once a court determines a juror has engaged in misconduct, a defendant is
presumed to have suffered prejudice. [Citation.] It is for the prosecutor to rebut
the presumption by establishing there is ‘no substantial likelihood that one or more
jurors were actually biased against the defendant.’ ” (People v. Weatherton (2014)
59 Cal.4th 589, 600; see People v. Thomas (2012) 53 Cal.4th 771, 819.) In other
words, a concealment creates a presumption of prejudice, but it can be rebutted by
a showing that there is no substantial likelihood of actual bias. Whether the
prosecutor has discharged his or her burden is for the court to decide.
       An unintentional concealment caused by an honest mistake during voir
dire, however, “cannot disturb a judgment in the absence of proof that the juror’s
wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s
good faith when answering voir dire questions is the most significant indicator that
there was no bias.” (In re Hamilton (1999) 20 Cal.4th 273, 300 (Hamilton); see
Boyette, supra, 56 Cal.4th at p. 890 [the unintentional nature of a juror’s
nondisclosure “supplies sufficient support” for the ultimate finding of no
substantial likelihood of actual bias].) Hamilton’s holding acknowledges the
possibility that, in a rare case, a court ultimately may determine that a juror’s
innocent concealment masked a substantial likelihood of actual bias.
       “Although juror misconduct raises a presumption of prejudice [citations],
we determine whether an individual verdict must be reversed for jury misconduct
by applying a substantial likelihood test. That is, the ‘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

                                          11
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.’ [Citation.] In other words, the test asks not whether the juror would
have been stricken by one of the parties, but whether the juror’s concealment
(or nondisclosure) evidences bias.” (Boyette, supra, 56 Cal.4th at pp. 889-890; see
Hamilton, supra, 20 Cal.4th at p. 295; People v. Nesler (1997) 16 Cal.4th 561, 578
(plur. opn.); Hitchings, supra, 6 Cal.4th at pp. 118-120.)
       “The standard is a pragmatic one, mindful of the ‘day-to-day realities of
courtroom life’ [citation] and of society’s strong competing interest in the stability
of criminal verdicts.” (Hamilton, supra, 20 Cal.4th at p. 296; see McDonough
Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 555 (plur. opn.) [“To
invalidate the result of a 3-week trial because of a juror’s mistaken, though honest,
response to a question, is to insist on something closer to perfection than our
judicial system can be expected to give”].)
       Stated somewhat differently, with respect to a claim of concealment, a
habeas corpus petitioner bears the initial burden of showing that a juror did not
disclose requested material information. If such a nondisclosure is shown, a
presumption of prejudice arises. An intentional concealment is strong proof of
prejudice, while a showing that the nondisclosure was unintentional may rebut the
presumption of prejudice. Whether any nondisclosure was intentional is not
dispositive; an unintentional nondisclosure may mask actual bias, while an
intentional nondisclosure may be for reasons unrelated to bias. The ultimate
question remains whether petitioner was tried by a jury where a substantial
likelihood exists that a juror was actually biased against petitioner.
       A juror is actually biased if she or he has “a state of mind . . . in reference
to the case, or to any of the parties, which will prevent the juror from acting with
entire impartiality, and without prejudice to the substantial rights of any party.”

                                          12
(Code Civ. Proc., § 225, subd. (b)(1)(C).) As explained in the plurality opinion in
People v. Nesler, supra, 16 Cal.4th 561 at pages 580 to 581, “[w]hat constitutes
‘actual bias’ of a juror varies according to the circumstances of the case.
[Citation.] . . . ‘ “[L]ight impressions, which may fairly be presumed to yield to
the testimony that may be offered, which may leave the mind open to a fair
consideration of the testimony, constitute no sufficient objection to a juror; but . . .
those strong and deep impressions which close the mind against the testimony that
may be offered in opposition to them, which will combat that testimony and resist
its force, do constitute a sufficient objection to him [or her].” ’ ”
       With these principles in mind, we turn to the questions we posed to the
referee and the responses he provided. The referee acts as “ ‘an impartial fact
finder for this court.’ ” (Boyette, supra, 56 Cal.4th at p. 887.) “ ‘The referee’s
factual findings are not binding on us, and we can depart from them upon
independent examination of the record even when the evidence is conflicting.
[Citations.] However, such findings are entitled to great weight where supported
by substantial evidence.’ ” (Ibid.) We generally defer to a referee’s determination
of witnesses’ credibility “ ‘ “because the referee has the opportunity to observe the
witnesses’ demeanor and manner of testifying.” ’ ” (Id. at p. 877.) We
“independently review the referee’s resolution of legal issues and of mixed
questions of law and fact.” (In re Crew (2011) 52 Cal.4th 126, 149 (Crew).)

       A. Evidentiary Objections
       Preliminarily, petitioner challenges some of the referee’s evidentiary
rulings.

           1. Evidence Code Section 1150
       Petitioner’s habeas corpus counsel, when inquiring how Juror C.B. reacted
at the trial during the penalty phase, asked her, “[W]hen you heard evidence of



                                           13
[petitioner’s] abuse from working on the farm, did you think, well, so was I?”
Citing section 1150 of the Evidence Code, the referee struck C.B.’s response.
       Although petitioner objects to the referee’s ruling, it was correct:
“Evidence of a juror’s mental process — how the juror reached a particular
verdict, the effect of evidence or argument on the juror’s decisionmaking — is
inadmissible.” (Boyette, supra, 56 Cal.4th at p. 894 [citing Evid. Code, § 1150,
subd. (a)].) Petitioner correctly notes that “the rule against proof of juror mental
processes is subject to the well-established exception for claims that a juror’s
preexisting bias was concealed on voir dire.” (Hamilton, supra, 20 Cal.4th at
pp. 298-299, fn. 19.) The question actually posed to Juror C.B., however, inquired
about her thoughts as she was hearing petitioner’s evidence, and thus solicited
quintessential evidence of her mental process. It plainly was not directed at C.B.’s
state of mind during voir dire. And it inquired about neither her purported
preexisting beliefs nor her purported concealment; rather, it solicited evidence of
how petitioner’s presentation of his case in mitigation was affecting her
decisionmaking process. Moreover, petitioner’s contrary suggestion
notwithstanding, the question did not attempt to solicit an admission from C.B.
that, due to her own impressions and opinions, she was unable to render a verdict
based on the evidence presented. We therefore overrule petitioner’s objection to
the referee’s ruling on this question.

          2. Evidence of Bias
       Over petitioner’s objection, respondent’s counsel asked Juror C.B. if she
was biased against petitioner “at any time while you were a sitting juror in this
trial?,” and she responded, “No, sir, I was not.” She conceded, however, that she
did not know the legal definition of “bias.” The referee in turn found that C.B.




                                          14
was not biased against petitioner in part due to her testimony that she was not
biased.
          Petitioner challenges this testimony and finding, first noting Juror C.B. is
not a lawyer, and that she conceded she did not know the legal definition of
“bias.” Petitioner also contends the referee prevented the parties from exploring
her understanding of the meaning of “bias”: When C.B. was asked if she was
biased against petitioner, petitioner’s counsel objected, arguing in relevant part
that the question called for a legal conclusion. The referee overruled the
objection, determining that the question was “not asking as a matter of law [but]
asking as a matter of fact.”
          We agree with petitioner that the referee’s findings could not properly be
based solely on Juror C.B.’s belief that she was not biased against petitioner.
People v. Allen and Johnson (2011) 53 Cal.4th 60 (Allen and Johnson), in which
the trial court dismissed a juror for refusing to deliberate, is instructive. In finding
that the juror was not deliberating, the trial court relied in part on the other jurors’
opinions that the juror in question was refusing to deliberate. In the course of
concluding that the trial court had committed reversible error, we observed that a
court “cannot substitute the opinions of jurors for its own findings of fact.” (Id. at
p. 75.)
          And, as petitioner notes, jurors are sometimes unaware of their own biases,
or are reluctant to admit to having biases. Accordingly, when assessing Juror
C.B.’s possible bias, we will not consider the referee’s finding that C.B. believed
she was not biased to the extent the referee relied on C.B.’s assessment of her own
bias. As we will explain, however, the record as a whole before us contains
substantial evidence that supports the referee’s findings, including his findings
regarding C.B.’s credibility and his ultimate finding that she was not actually
biased.

                                            15
        B. Questions Posed
        We note at the outset that the referee found Juror C.B. to be a credible
witness; specifically, that she testified in a “direct, responsive, thoughtful and
consistent manner” to the questions posed, and “was not evasive, uncooperative or
defensive.” The referee also found C.B’s credibility was enhanced by her
voluntarily completing the posttrial questionnaire and by voluntarily complying
with the parties’ pre-reference hearing requests for more information. In other
words, the referee reasoned, if C.B. had a “hidden agenda,” she simply could have
remained silent.
        Petitioner contends the referee’s findings, including the findings concerning
Juror C.B.’s credibility, are not supported by substantial evidence. We will
address each question, the referee’s findings, and petitioner’s contentions in turn.

           1. Question One: What Were the Reasons for Nondisclosure?
        Our first question inquired about Juror C.B.’s reasons for not disclosing her
childhood abuse. At the time of petitioner’s trial, Juror C.B. understood that
sexually abusing a child was a criminal and violent act; she also understood that
physically abusing a child was a violent act. The referee found, however, that
C.B. did not disclose the childhood abuse that she had personally suffered because
she did not consider her childhood experiences to have been criminal or violent
acts.
        The referee further found that the experience of being a child in the 1950s
supported Juror C.B.’s explanation why she did not initially disclose her childhood
experiences. Juror C.B. testified her childhood experiences did not come to mind
when she was completing the pretrial juror questionnaire because she “did not
consider [her]self a victim of a crime.” The referee reasoned that her belief her
childhood experiences were neither crimes nor acts of violence “is consistent with




                                          16
how society viewed and treated abuse of children 60 years ago, as distinct from
how society now views and treats such abuse.”
       The referee accepted Juror C.B.’s explanation and found no conflict in her
testimony. In doing so, the referee noted that C.B. acknowledged she had been
present during a violent act, that is, her childhood sexual and physical abuse. She
also acknowledged the questionnaire did not have any time parameters, and were
not specifically limited to her adult experiences. Nonetheless, the referee
concluded, because C.B. did not consider herself the victim of a crime or a violent
act, her childhood experiences did not come to mind when she was completing the
pretrial juror questionnaire.
       In sum, the referee found that, in her mind, Juror C.B.’s childhood sexual
and physical abuse were not criminal and violent acts, but rather were simply a
part of life. As such, and despite their presumably traumatic nature, he
determined, when completing the pretrial juror questionnaire, C.B. did not believe
they constituted crimes or acts of violence.
       Petitioner challenges the referee’s findings regarding both Juror C.B.’s
credibility and her reasons for not disclosing her childhood experiences. Because
the two findings are inextricably linked, we will discuss them together, and, as we
will explain, we adopt these findings.
       Fundamentally, petitioner rejects Juror C.B.’s explanation that Questions
63 through 66 did not trigger any memories of her childhood experiences. Her
explanations could not be credible, he contends, because they were inconsistent
and therefore not all true.
       Petitioner notes Juror C.B. acknowledged that the questionnaire did not
contain any time parameters, that is, it was not limited to events that occurred
during adulthood. Yet, in her 2012 declaration, which she reaffirmed during the
evidentiary hearing, C.B. expressed the belief that the questionnaire applied only

                                         17
to events during her adulthood. Similarly, she acknowledged that sexually
abusing a child is a criminal and violent act, and that physically abusing a child is
a violent act. But her personal sexual and physical abuse was, in her eyes, neither
a criminal nor a violent act.
       Petitioner is correct that Juror C.B.’s responses cannot all be reconciled.
For example, she could not have believed the questionnaire both had no time
parameters and was limited to events that occurred during her adulthood. But the
referee appears to have resolved her seemingly contradictory responses by
acknowledging that societal beliefs about the treatment of children in the 1950s
might have differed from contemporary attitudes.1 That is, it would appear C.B.

1      Petitioner contends Juror C.B’s beliefs, as well as the referee’s findings,
regarding societal views in the 1950s about children are “unsupported.” Her
beliefs undoubtedly were formed and supported by her own personal experiences,
by those of the people around her, and by the changes she has experienced. And it
would appear her beliefs are shared by others. (E.g., Lukens, The Impact of
Mandatory Reporting Requirements on the Child Welfare System (2007) 5 Rutgers
J.L. & Pub. Pol’y 177, 191 [“Until the mid-1960s, identification by [child
protective services] agencies of children suffering from mistreatment by their
families was a haphazard project”]; Weithorn, Protecting Children from Exposure
to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes (2001)
53 Hastings L.J. 1, 42 [“By the second half of the twentieth century, child
protection had become an important component of state and federal social
agendas, ultimately resulting in the complex network of criminal and civil policies
and agencies that now regulate various aspects of family relationships”], 51 [“[I]t
was not until the mid-twentieth century that regulation of child labor became a
fixture of American life, after many decades of bitter struggle”].)
       Petitioner’s concerns regarding the referee’s finding about the changes in
societal views are more well-founded. Other than Juror C.B.’s testimony, the
record contains no evidence regarding the changes in societal views about child
labor and child abuse. And, without additional evidence, such a generalized
finding by the referee regarding the evolution of societal views is vague as to what
is exactly being found, and also as to how such changes could be quantified or
measured. (See Evid. Code, § 452, subd. (h) [a court may take judicial notice of
“[f]acts and propositions that are not reasonably subject to dispute and are capable



                                         18
reasonably could believe that what might once have been treated as a “private
matter” would likely today involve the criminal justice system and child protective
services. Under this view, because C.B. did not believe her childhood experiences
were violent or criminal acts, they would not have come to mind, regardless of the
questionnaire’s time parameters. And her answers support this finding. For
example, when she was asked to explain her belief that the questionnaire was
limited to events during adulthood, she responded, “I did not consider anything in
my life as criminal [or violent] acts.”
       Petitioner seizes upon Juror C.B.’s statement that she “did not consider”
any events in her life to have been criminal or violent acts to infer that, when
completing the questionnaire, she in fact did recall her childhood experiences but
then intentionally chose not to disclose them. He argues that contradicts her
testimony that her childhood experiences did not come to mind until her memories
were triggered during the penalty phase. We decline petitioner’s invitation to read
her testimony so literally. The totality of the evidence indicates that C.B. did not
recall her childhood experiences until the penalty phase, notwithstanding her use
of the word “consider” in describing her thought processes while completing the
juror questionnaire.
       In light of the alleged inconsistencies in Juror C.B.’s declaration and
testimony, petitioner urges that we not defer to the referee’s finding that she was a

of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy”].)
        Regardless, because Juror C.B. reasonably could have formed an opinion
on the matter, and her opinion helps explain the consistency in her responses and
her testimony, we need not address any finding the referee may have made on the
general topic of societal views, other than to note substantial evidence in the
record as a whole supports his finding that C.B. was consistent and therefore
credible.




                                          19
credible witness, but we decline the request. Boyette is instructive on this point.
In Boyette, we ordered a reference hearing on a claim that a juror had engaged in
misconduct by failing to disclose on a pretrial juror questionnaire his or his
relatives’ criminal histories and substance abuse problems. At the evidentiary
hearing, the juror gave inconsistent reasons for his nondisclosure, but the referee
ultimately found the juror had unreasonably albeit honestly misunderstood the
questions. (See Boyette, supra, 56 Cal.4th at pp. 872-884.) We deferred to the
referee’s credibility findings because “ ‘we assume the referee considered those
discrepancies, along with [the witness’s] demeanor, while testifying, before
concluding he was a credible witness.’ ” (Id. at p. 877.) We assume the referee
did likewise when evaluating C.B.’s credibility.
       Petitioner’s contrary contentions notwithstanding, we also agree with the
referee that Juror C.B.’s disclosure of her childhood experiences on the posttrial
questionnaire suggested she did not have a “hidden agenda,” which thus further
enhanced her credibility. People v. Ray (1996) 13 Cal.4th 313 supports our
conclusion. In Ray, a juror realized during the trial that he had a passing
acquaintance with the victim’s daughter, and he informed the trial court of this
fact. We affirmed the trial court’s decision not to further inquire into the juror’s
possible bias because, among other reasons, if the juror “had formed improper
opinions about the case and intended to act in ways prejudicial to the defense,
common sense suggests that [the juror] would have simply remained silent.”
(Id. at p. 344.) Petitioner is correct that, unlike the juror in Ray, C.B. did not
disclose her childhood experiences until after the trial had ended. Petitioner is also
correct that the timing of her disclosure frustrated petitioner’s opportunity to
explore C.B.’s possible biases while his trial was still in progress. But neither of
those points refutes the referee’s finding that she was credible.



                                           20
       Petitioner nonetheless argues that if Juror C.B.’s reasons for her belated
disclosure about her childhood were sincere, she could and should have made her
disclosure during deliberations, if not sooner. Even were we to agree that C.B.
would have been more credible had she made her disclosure earlier, that does not
necessarily render unbelievable her reasons for not disclosing until she did.
Moreover, C.B. had the opportunity to refrain altogether from disclosing her
childhood experiences, or from disclosing after the penalty phase verdict that she
had discussed her experiences during deliberations. As she herself noted, she was
testifying at the evidentiary hearing as a consequence of her voluntary disclosures
on the posttrial questionnaire.
       Accordingly, we reject petitioner’s assertion that the referee’s findings
regarding Juror C.B.’s credibility are unsupported by substantial evidence.
Instead, we conclude that, in light of the evidence presented, including the
referee’s assessment of C.B.’s demeanor while testifying, the referee reasonably
accepted her explanation that she did not consider her childhood experiences when
answering Questions 63 through 66, notwithstanding any possible tension between
certain portions of her testimony.
       Juror C.B.’s testimony, taken as a whole, shows she believed society
formerly viewed criminal or violent acts committed on children differently from
how it does today. As she repeatedly explained, when she was growing up, “abuse
was not a crime. Kids were abused all the time. And using kids for hard labor
was very common.” Her stated beliefs about childhood abuse appear not to have
been limited to her own personal experiences, but also included similarly situated
children, and thus supported her assertion that she did not consider her experiences
so extraordinary as to have been within the contemplation of the pretrial juror
questionnaire. We therefore accept the referee’s findings with respect to the first
question because they are supported by substantial evidence.

                                         21
          2. Question Two: Was the Nondisclosure Intentional and Deliberate?
       The second question we posed to the referee inquired whether Juror C.B.’s
nondisclosure was intentional and deliberate. Preliminarily, we note that an
intentional nondisclosure is strong proof that can sustain the presumption of
prejudice raised by juror concealment.
       C.B. specifically testified that, while completing the questionnaire, she tried
to recall if she had been a victim of a crime but “nothing came to mind.” For the
reasons set forth in answering our first question, the referee also found that Juror
C.B.’s nondisclosure of her childhood experiences was neither intentional nor
deliberate. Specifically, the referee found that C.B.’s childhood experiences “did
not come to mind” while she was completing the questionnaire, and that she
therefore believed she had honestly and accurately answered Questions 63 through
66. Notwithstanding the “seeming clarity” of the questions posed, the referee
found that she answered the questions “in good faith” and “with no intent to
conceal or deceive.”
       Petitioner challenges these findings. He contends the questionnaire was
clear, Juror C.B. had sufficient time to consider her answers, and her testimony
regarding her nondisclosure was “inconsistent and incoherent.” As we will
explain, however, we disagree with petitioner because there is sufficient evidence
that Juror C.B.’s nondisclosure was unintentional.
       In support of his position, petitioner cites People v. Blackwell (1987)
191 Cal.App.3d 925 (Blackwell). In Blackwell, the defendant claimed she was a
victim of alcohol-triggered domestic violence and had killed her husband in self-
defense, but the jury rejected her defense and found her guilty of second degree
murder. A juror who had indicated during voir dire that she had had no personal
experience with domestic violence or alcoholism admitted after the verdict that her
former husband had physically abused her when he was drunk. (Id. at p. 928.)


                                         22
The Court of Appeal concluded that, if voir dire questioning is specific enough to
elicit the undisclosed information and a juror nevertheless fails to disclose, this
constitutes a prima facie case of juror concealment or deception. (Id. at p. 929.)
From this, petitioner contends Juror C.B.’s failure to answer sufficiently specific
questions also constitutes concealment.
       Blackwell, however, is distinguishable and ultimately does not help
petitioner. The Court of Appeal also observed in that case that nothing in the
juror’s declaration indicated that she misunderstood or was confused by the voir
dire questioning, or that her failure to disclose the domestic abuse was due to an
oversight or forgetfulness. (Blackwell, supra, 191 Cal.App.3d at p. 930.) In other
words, the Blackwell court reasoned that the juror’s nondisclosure was intentional
because the questions were clear and no reason was given for not understanding
the questions or not providing a responsive answer; the only supported inference
was that the juror “was aware of the information sought and deliberately concealed
it by giving false answers.” (Ibid.) Regardless of the clarity of the juror
questionnaire in petitioner’s case, Juror C.B., unlike the Blackwell juror, provided
the reasons for her nondisclosure. C.B. repeatedly and consistently explained that
she believed her childhood experiences were not applicable to the questions posed
and therefore they did not come to mind. The referee found her explanation to be
credible, and we have adopted the referee’s findings in this regard.
       As the referee noted, “the Blackwell court found that the biased juror . . .
had intentionally concealed information that should have been elicited on voir
dire, and had committed misconduct. Such is not the case here as there was no
intentional concealment.” We have adopted the referee’s finding that C.B. did not
intentionally conceal her abuse, and we therefore reject petitioner’s suggestion that
the mere failure to answer a seemingly clear question alone rendered C.B.’s
testimony incredible or otherwise indicated intentional concealment. (See Boyette,

                                          23
supra, 56 Cal.4th at pp. 872-884, 889-890 [a juror’s unreasonable but honest
failure to answer clear questions was not prejudicial misconduct].)
       Petitioner argues there is further support for his position in People v.
McPeters (1992) 2 Cal.4th 1148. We observed that “[i]n view of the traumatic
nature of the event and the specificity of the questions,” it was highly unlikely that
a juror’s failure to disclose having been assaulted with a knife during an attempted
rape and then pursued and stabbed by her assailant was inadvertent. (Id. at p. 1176
[discussing the facts of People v. Diaz (1984) 152 Cal.App.3d 926 (Diaz)].) Our
brief discussion of the Court of Appeal’s decision in Diaz, however, was aimed
merely at contrasting the gravity of the undisclosed incident in that case with the
relatively benign one that had occurred in McPeters, in which a juror belatedly
realized he had failed to timely disclose a passing acquaintance with the victim’s
husband. Contrary to petitioner’s suggestion, we have never established a rule that
a juror’s nondisclosure of a sufficiently traumatic event always is intentional and
serves as indisputable evidence of concealment.
       Petitioner further supports his position with citation to Weathers v. Kaiser
Foundation Hospitals (1971) 5 Cal.3d 98, in which we held the trial court did not
abuse its discretion in granting the plaintiff’s motion for a new trial in a medical
malpractice lawsuit on the ground of prejudicial juror misconduct. In Weathers,
two jurors had told the other jurors that Kaiser was a “ ‘good hospital’ ” and that a
verdict for the plaintiff would “ ‘endanger[] the whole hospital system.’ ” (Id. at
p. 107.) We affirmed the trial court’s order, noting that “[i]t is apparent . . . that
the court concluded that the [jurors’] concealment [during voir dire] was
intentional.” (Id. at p. 110, fn. 5.) Here, the referee found the concealment was
inadvertent, a finding that we have concluded is supported by substantial evidence.
Moreover, there were other acts of juror misconduct in Weathers that were not
present in petitioner’s trial. For example, during deliberations one of the jurors in

                                           24
question had brought up the fact that the plaintiff was an African American
woman and remarked that “ ‘where he came from, they don’t “even let a black
woman into the courtroom.” ’ ” (Id. at p. 107.)
       Similarly unhelpful to petitioner is Young v. Gipson (N.D.Cal. 2015) 163
F.Supp.3d 647, a federal district court case granting relief in a capital habeas
matter. The petitioner in that case had been sentenced to death for three first
degree murders, two of which involved robberies at gunpoint. (See People v.
Young (2005) 34 Cal.4th 1149, 1165.)2 The federal district court found merit to
the petitioner’s claim of prejudicial juror misconduct based on a juror’s
affirmative misrepresentations on a juror questionnaire and during voir dire
questioning. The questionnaire inquired about familiarity with the locations where
the offenses occurred. In answering the questionnaire, the juror denied any
knowledge of the locations, and stated during voir dire that he had heard of some
of the street names but had never been to where the crimes occurred. In a
postverdict declaration, however, the juror stated that he knew the neighborhood
“well.” (He also indicated that he had been a member of the National Rifle
Association since he was a teenager, despite denying any such membership on his
juror questionnaire.) The federal district court granted habeas corpus relief,
finding that the juror had not answered honestly the questions posed during jury
selection.3 (Young v. Gipson, at pp. 729-732 & fn. 25.) The juror in that case was


2      This court affirmed the judgment in the automatic appeal (People v. Young,
supra, 34 Cal.4th at p. 1166), and later summarily denied the petitioner’s habeas
corpus claim of prejudicial juror misconduct.
3      The juror had disclosed on the questionnaire that he, like some of the
victims, had been robbed at gunpoint. In the juror’s later declaration, he specified
that he was robbed at a location that was approximately one-half mile away from
one of the crime scenes. Because the juror had disclosed being robbed yet served



                                          25
personally familiar with the locations where the offenses had occurred, and then
concealed that familiarity from the court and the parties. In contrast, Juror C.B.
had no personal familiarity with the circumstances of petitioner’s childhood;
although she had some general knowledge about Mexican farms, nothing either on
the pretrial questionnaire nor during voir dire would have alerted her to the
possible relevance of such knowledge.
       Petitioner also relies on Sampson v. United States (1st Cir. 2013) 724 F.3d
150 (Sampson). In Sampson, the defendant had pleaded guilty to capital crimes,
but federal law required a jury to be empaneled to determine the penalty. The jury
imposed the death penalty, but the defendant presented evidence during habeas
corpus proceedings that one of the jurors willfully had concealed information
during voir dire. The First Circuit, in affirming the district court’s decision
vacating the death penalty, ruled that the juror had failed to honestly answer
material voir dire questions; indeed, the juror admitted to being deliberately
dishonest during voir dire. (Id. at pp. 164-168.) Sampson therefore does not aid
petitioner because the federal courts had found that the juror repeatedly and
deliberately lied on her pretrial questionnaire and during voir dire, whereas Juror
C.B.’s nondisclosure was much more limited and unintentional.
       Petitioner finally contends Juror C.B.’s testimony that she carefully
considered her pretrial questionnaire answers, and that she could not recall being a
victim of any crime, is simply not credible due to the traumatic nature of her
childhood. We reject this contention because, as we have explained, we have
adopted our referee’s finding that she was a credible witness. We therefore further


on the jury, the district court’s findings about his honesty presumably referred
only to the nondisclosure of his personal familiarity with the area.




                                          26
reject petitioner’s suggestion that the timing of C.B.’s disclosure necessarily
indicates that she intentionally concealed her childhood experiences.
       Petitioner posits that Juror C.B.’s testimony indicates other possible
motives for her nondisclosure. For example, she testified that she thought some of
the questions on the questionnaire were unduly invasive, and that until the trial she
rarely had discussed her childhood experiences. Although we agree with
petitioner that those sentiments could have been possible motives for intentional
concealment, we also agree with the referee’s finding, supported by substantial
evidence, that C.B.’s nondisclosure with respect to these questions was
unintentional.
       We therefore conclude that, in light of the evidence presented, including the
referee’s ascertainment of C.B.’s demeanor while testifying, the referee reasonably
found that her nondisclosure was neither intentional nor meant to conceal or
otherwise deceive. Accordingly, we accept the referee’s findings with respect to
the second question because they are supported by substantial evidence.

          3. Question Three: Did the Nondisclosure Indicate Bias?
       The third question we posed to the referee inquired whether Juror C.B.’s
nondisclosure indicated juror bias. She testified that, prior to the trial, she knew
nothing about petitioner. She learned about petitioner’s childhood for first time
during the penalty phase.
       Having found Juror C.B.’s explanation for her nondisclosure to be credible,
the referee found that her nondisclosure did not indicate juror bias. According to
the referee, C.B.’s responses on the pretrial questionnaire and her testimony during
the evidentiary hearing indicated “she was attempting to provide full and honest
answers, and that her nondisclosure was inadvertent.” Based on his review of the
whole record, the referee concluded that no juror bias existed.



                                          27
        Petitioner challenges these findings. He contends it is “irrelevant” that
Juror C.B. knew nothing about petitioner prior to his trial. We disagree. If pretrial
publicity, the pretrial juror questionnaire, or voir dire had alerted her to the
possibility that his harsh upbringing would be an issue at trial, conceivably her
memories about her own experiences might have been triggered earlier. That is, if
C.B. had a reason to anticipate the importance of her own childhood experiences
while completing the pretrial questionnaire or participating in voir dire, her
nondisclosure may have indicated an attempt to conceal her own experiences,
which could in turn indicate juror bias. Although her lack of knowledge regarding
petitioner’s upbringing earlier in the case is not dispositive of the issue of bias, it
does bolster her explanation that it was only during the penalty phase in which
memories of her own experiences were first “triggered.”
        Petitioner notes that the pretrial questionnaire was not limited to
prospective jurors’ experiences as adults. But it is also true that the questionnaire
did not inquire specifically about childhood experiences. Moreover, there is no
evidence before us to suggest that Juror C.B. specifically discussed her childhood
experiences with anyone while she was completing her pretrial juror
questionnaire, during voir dire, or during the guilt phase of petitioner’s trial.
        As petitioner acknowledges, this court has previously expressed doubts that
a juror’s honest mistake during the voir dire process can lead to the impeachment
of a verdict for juror bias. (See Hamilton, supra, 20 Cal.4th at p. 300; see also
Boyette, supra, 56 Cal.4th at p. 890.) Because we have accepted the referee’s
findings that Juror C.B. answered the pretrial juror questionnaire in good faith, we
similarly accept the referee’s finding that her nondisclosure was not indicative of
bias.
        Petitioner asserts that, unlike the jurors in Boyette and Hamilton, Juror
C.B.’s nondisclosure hid her actual bias. These decisions ultimately do not help

                                           28
him, however. In Boyette, the juror failed to disclose his or his relatives’ criminal
histories and substance abuse problems and yet there was no evidence linking
these personal experiences with how that juror judged the defendant’s case.
(Boyette, supra, 56 Cal.4th at pp. 889-890.) Similarly, the juror in Hamilton
inadvertently failed to fully disclose her exposure to pretrial publicity, yet there
was no indication that the undisclosed exposure influenced her ability to evaluate
the evidence in the case. (Hamilton, supra, 20 Cal.4th at pp. 300-301.)
       Again, in light of the evidence presented in this matter, and the referee’s
assessment of Juror C.B.’s demeanor while testifying, the referee reasonably
found that she had made an honest mistake while completing the pretrial juror
questionnaire, which was not itself indicative of bias. A juror could, of course,
intentionally conceal information for reasons other than bias, such as
embarrassment or the desire to protect someone else. But nothing in the record
before us suggests C.B. had any such motives while completing the questionnaire
or during voir dire.
       Our inquiry, however, does not end here. Although a finding of intentional
nondisclosure would sustain the initial presumption of prejudice caused by juror
concealment, substantial evidence supports the referee’s findings that Juror C.B.’s
unintentional nondisclosure indicates a lack of bias. We acknowledge, however,
the possibility that C.B.’s honest mistake nonetheless hid a bias. We therefore
must determine the ultimate issue — that is, whether petitioner has shown there is
a substantial likelihood that C.B. was actually biased against petitioner.

          4. Question Four: Was Juror C.B. Actually Biased?
       In light of his findings regarding the first three questions, the referee also
found that Juror C.B. was not actually biased against petitioner. Relying on
People v. Wilson (2008) 44 Cal.4th 758 (Wilson), the referee found C.B. had



                                          29
properly evaluated “the penalty phase evidence through the prism of her life’s
experiences,” and was not actually biased in doing so.
       Petitioner contests the referee’s finding that Juror C.B. was not actually
biased against him. Citing the well-established rule that impartial jurors must set
aside their personal impressions or opinions and render a verdict based solely on
the evidence presented in court, he contends Juror C.B. was unable to do this. We
have exercised our independent review (see Crew, supra, 52 Cal.4th at p. 149)
and, for the reasons explained below, we conclude that petitioner has not shown a
substantial likelihood that C.B. was actually biased.
       Petitioner preliminarily challenges the referee’s finding that his trial
counsel invited the jurors to consider their own life experiences. During the
penalty phase closing arguments, trial counsel asked, “And before you judge him,
put yourself in his place. Would you be the person you are today? No question
you wouldn’t be. Would you do the things he did? Maybe, maybe not.” The
referee inferred that Juror C.B. “simply accepted the invitation made by
petitioner’s counsel,” did put herself in petitioner’s place, and judged him
negatively. Although the reasonableness of this particular inference is debatable,
it is also not determinative of the ultimate issue of whether C.B. was actually
biased against petitioner, and we therefore place no weight on this particular
finding.
       Relying on Diaz, supra, 152 Cal.App.3d at page 936, petitioner next
contends that the possibility of prejudice is greater if the misconduct is committed
by the jury foreperson — as Juror C.B. was for petitioner’s trial — due to the
influence that role may wield during jury deliberations. C.B. testified she and
another juror shared their childhood experiences with the rest of the jury, but the
record before us does not (and, indeed, under Evidence Code section 1150,
cannot) reveal the influence, if any, these disclosures had on the jurors’

                                          30
deliberative processes. Nor is there any indication in the record that the other
jurors voted as they did simply because C.B. was the foreperson, and not, for
example, because of the persuasiveness or strength of her opinion, the severity of
the evidence in aggravation, or for any of innumerable other reasons unrelated to
C.B. We therefore decline petitioner’s invitation to automatically ascribe any
significance to C.B.’s status as the jury foreperson.
       We also note petitioner supports much of his argument with decisions
finding prejudicial juror misconduct based on jurors’ exposure to, referencing, or
disseminating information that was not presented during the trial. Those cases are
unavailing, however: A juror’s impermissible reliance on extrajudicial
information (that is, new facts) is different from a juror’s more permissible
reliance on her or his life experiences when evaluating the evidence presented at
trial. (See Allen and Johnson, supra, 53 Cal.4th at pp. 76-78; Wilson, supra,
44 Cal.4th at p. 831 [“Nor was [the juror’s] statement that he ‘knows’ more abuse
occurred than was presented to the jury an instance of relying on facts not in
evidence. . . . He merely drew [a permissible] inference from the evidence
presented, drawn from his own life experiences, that more abuse probably
occurred than was shown”].)
       Jurors are actually biased if they cannot act “with entire impartiality, and
without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225,
subd. (b)(1)(C).) A juror may, for example, harbor a general bias against a class
of witnesses. In People v. Thomas (1990) 218 Cal.App.3d 1477 at page 1482, for
instance, the Court of Appeal upheld the mid-deliberations dismissal of a juror
who believed, “based upon personal experience, that police officers in Los
Angeles generally lie.” And in People v. Barnwell (2007) 41 Cal.4th 1038 at
pages 1048 to 1054, we similarly upheld the mid-deliberations removal of a juror
who also had a general bias against law enforcement officers. In Allen and

                                         31
Johnson, supra, 53 Cal.4th at page 78, however, this court explained that although
such categorical prejudgment of a class of witnesses is unacceptable, a juror may
properly draw on her or his life experiences when determining whether a particular
witness is credible. And here, there is no evidence that Juror C.B. found any class
of witnesses to be incredible (or particularly credible). Indeed, there is no
indication that she expressed doubt regarding the credibility of any witness, or
otherwise questioned that petitioner had suffered childhood abuse. Rather, she
came to a conclusion as to the weight to be given to the evidence that was
presented.
       Petitioner finds support for concluding that Juror C.B. was actually biased
in the Hawaii Supreme Court’s decision in State v. Larue (Hawaii 1986) 722 P.2d
1039 at pages 1042 to 1043. There, the court held that prejudicial juror
misconduct occurred when a juror’s own experience of being molested as a child,
which she inadvertently did not disclose during voir dire and revealed for the first
time during deliberations, caused her to find the young sexual assault victims to be
credible. We express no opinion on the correctness of Larue’s holding. Instead,
we observe that Juror C.B. did not rely on her personal experiences to vouch for a
witness’s credibility, and she did not otherwise engraft her own childhood
experiences onto those of the mitigation witnesses’ experiences.
       Petitioner nonetheless identifies two possible bases in which the
information Juror C.B. did not disclose during voir dire may have shown she was
actually biased against him. First, C.B. was sexually abused as a child and
therefore victimized by conduct similar to conduct described by the penalty phase
evidence that petitioner had raped a woman. Second, C.B. had childhood
experiences similar to petitioner’s, which led her to reject this aspect of his case in
mitigation.



                                          32
       With respect to the first basis, that Juror C.B. was the victim of conduct
substantially similar to that petitioner was accused of committing, the record
before us indicates there was evidence during the penalty phase trial that petitioner
had raped a friend’s babysitter at gunpoint (see Manriquez, supra, 37 Cal.4th at
pp. 569-570), and that C.B. had once been raped or sexually assaulted as a child.
There are differences between the two incidents, however. For example, petitioner
had used a weapon during the rape whereas there is no evidence that C.B.’s
assailant did. In addition, C.B.’s assault occurred decades before petitioner’s trial,
and there is no evidence in the record before us that the incident continued to
traumatize her. Nonetheless, we accept petitioner’s contention that the two
incidents were sufficiently similar as to present a possibility of bias.
       In support of his position, petitioner relies upon Diaz, supra,
152 Cal.App.3d 926, in which the defendant was charged with assault with a
deadly weapon while armed with a knife. A juror in the case did not disclose
during voir dire that she had previously been assaulted at knifepoint during an
attempted rape. The juror revealed her prior attack to court personnel, who
described the juror as being “ ‘prejudiced as to violent crimes.’ ” (Id. at p. 931.)
After a midtrial hearing, the trial court denied the defendant’s motion to dismiss
the juror, and the defendant was later convicted. (Id. at pp. 930-931.) A divided
panel of the Court of Appeal reversed, reasoning that “when a juror has been
victimized by the same type of crime” as the defendant is accused of having
committed, there is a “probability of bias.” (Id. at p. 939.)
       In Diaz, after the prosecution had rested its case, the juror related her
experiences to a bailiff and a court clerk. When the court asked the bailiff his
impression of the juror’s impartiality, the bailiff stated, “ ‘My opinion, she is
prejudiced as to violent crimes, especially [against] women. She is obsessed with
rape, with victims, and the men who perpetrate this act. I cannot honestly say that

                                          33
she would be an impartial juror as to violent crime. . . . [S]he does have a very
acute obsession with rape.’ ” (Diaz, supra, 152 Cal.App.3d at p. 931.) Setting
aside the questionable propriety of a trial court soliciting its personnel’s
“impressions” of a juror (as opposed to limiting their testimony to what they had
observed), the record before us does not show that Juror C.B. had any sort of
similar “obsession.” To the contrary. C.B. testified that, until the trial, she rarely
had discussed her childhood experiences. And the referee found her not to be
defensive. In sum, while a similarity between a juror’s life experience and a crime
alleged against a defendant certainly may create a possibility of bias, the impact
the sexual assault had on C.B. does not create a substantial likelihood of actual
bias.
        Petitioner also refers to Sampson, the federal capital murder case in which a
juror concealed, among other information, that her ex-husband had abused her and
threatened her. Petitioner seizes upon the First Circuit’s statement that “[w]hen a
juror has life experiences that correspond with evidence presented during the trial,
that congruence raises obvious concerns about the juror’s possible bias.
[Citations.] In such a situation, the juror may have enormous difficulty separating
her own life experiences from evidence in the case.” (Sampson, supra, 724 F.3d at
p. 167.) Again, Juror C.B.’s inadvertent nondisclosure does not implicate the
same possibility of bias as the circumstances presented in Sampson, in which the
juror intentionally concealed information during voir dire and the posttrial
proceedings regarding juror misconduct. Moreover, the juror in Sampson lied
about life experiences that were so painful that she “ ‘could not discuss those
matters candidly, unemotionally or, often, coherently’ ” at the evidentiary hearing
conducted years after the events had occurred (and years after the defendant’s
trial). (Ibid.) The Sampson juror’s difficulty in separating her own life
experiences from the evidence in that case was manifest. C.B.’s testimony, in

                                          34
contrast, was “direct” and “responsive,” and there is no indication in the record
that she ever was overcome with emotion or was otherwise incoherent. Although
there is evidence that C.B. applied her life experiences when interpreting
petitioner’s mitigation evidence, the record does not support the inference that she
had any difficulty separating her own experiences from the evidence in
petitioner’s case. We therefore decline petitioner’s invitation to follow Sampson.
       With respect to the second basis for finding actual bias, that Juror C.B. had
childhood experiences similar to petitioner’s that led her to reject this aspect of his
case in mitigation, we have some doubts regarding the purported similarities in
their respective experiences. The evidence before us regarding the details of
C.B.’s childhood is somewhat scant: she was raised by a foster mother and had a
“rough childhood” because she worked as “slave labor” on a farm in
Pennsylvania. She explained that as soon as she was old enough, she had to work
on the farm. The farm also had a home for retired people, and she was required to
cook, clean, and otherwise care for the residents. She worked sometimes before
school, after school, and during the entire weekend. She was often physically
abused, and a resident of the home for retirees once had sexually assaulted her. In
contrast, petitioner as a child worked on a farm in rural Mexico for 14 hours a day,
364 days a year. He did not attend school because there were none. And unlike
C.B., petitioner also provided examples of some of the extreme cruelty he suffered
at the hands of his relatives, such being tied to a tree and whipped, being hog-tied
for an entire night in a storage bin, or having the soles of his feet burned so he
could not run away. We have no doubt both suffered greatly. And certainly C.B.
believed their childhood to be similar. But she also did not consider her
experience to be unique. She explained that another juror also disclosed during
deliberation that he had been beaten as a child. We do not view petitioner’s and



                                          35
C.B.’s experiences as comparable as petitioner insists, which lessens somewhat
the likelihood of bias on this basis.
       Petitioner contends nonetheless that Juror C.B.’s personal experiences
improperly affected how she viewed petitioner’s evidence in mitigation. As he
points out, after petitioner’s trial C.B. plainly and repeatedly stated that she did not
consider petitioner’s childhood abuse to be an excuse or mitigating because,
although she too had been abused, she had not committed crimes. But there is no
evidence before us as to when C.B. determined that childhood abuse was not a
sufficiently mitigating factor.
       Petitioner observes that the juror in Blackwell, supra, 191 Cal.App.3d 925,
the case involving the juror who had committed misconduct by concealing her
personal experiences with an abusive ex-husband, had relied on those experiences
to reject the defendant’s self-defense theory. The juror there, who had been able
to escape her ex-husband without resorting to violence, stated in a declaration that
she “ ‘was personally able to get out of a similar situation without resorting to
violence,’ ” and therefore believed that the defendant should have been able to do
the same had she wanted to. (Id. at p. 928.) Petitioner asserts that, like the
Blackwell juror, Juror C.B. was biased against him because she did not consider
his life experiences to be an excuse or justification for his criminal behavior.
Blackwell does not assist petitioner, however, because there, the Court of Appeal
concluded the juror had intentionally given false answers during voir dire, which
strengthened the presumption of prejudice. In addition, no evidence was presented
in that case to rebut the presumption of prejudice. (Id. at pp. 930-931.) The same
cannot be said here.
       More fundamentally, as the referee noted, jurors generally are expected to
interpret the evidence presented at trial through the prism of their life experiences.
(Wilson, supra, 44 Cal.4th at p. 823.) In Wilson, also a death penalty case, both

                                          36
the defendant and one of the jurors were African American. During voir dire, the
juror testified he would not be biased either for or against the defendant due to
their being of the same race. (Id. at pp. 821-822.) During the penalty phase
deliberations, the juror explained to the other jurors that he found the defendant’s
mitigating circumstances compelling because, being an African American, he
believed he had some insight into the negative family dynamics and harsh
circumstances of the defendant’s upbringing that non-African American jurors did
not possess. (Id. at p. 814.) The trial court discharged the juror for misconduct,
finding in relevant part that he had concealed his bias during voir dire and
improperly considered race-based biases instead of the evidence presented. (Id. at
p. 820.)
       We held in Wilson that the trial court had abused its discretion in removing
the juror, and vacated the penalty phase verdict. We noted that, unlike “the
factfinding function undertaken by the jury at the guilt phase, ‘the sentencing
function [at the penalty phase] is inherently moral and normative, not factual; the
sentencer’s power and discretion . . . is to decide the appropriate penalty for the
particular offense and offender under all the relevant circumstances.’ [Citations.]
Given the jury’s function at the penalty phase under our capital sentencing
scheme, for a juror to interpret evidence based on his or her own life experiences
is not misconduct.” (Wilson, supra, 44 Cal.4th at p. 830.) Because the penalty
phase is less amenable than the guilt phase to burden of proof calculations (e.g.,
People v. Winbush (2017) 2 Cal.5th 402, 489), “a penalty phase juror properly
considers ‘personal religious, philosophical, or secular normative values’ in
making a penalty determination.” (People v. Nunez and Satele (2013) 57 Cal.4th
1, 60; accord, People v. Bell (1989) 49 Cal.3d 502, 564.) And such considerations
plainly contemplate jurors drawing upon their varied backgrounds and experiences
when making these moral and normative decisions.

                                          37
       This different kind of decisionmaking distinguishes petitioner’s case from
Blackwell, supra, 191 Cal.App.3d 925, in which there was a substantial likelihood
that the challenged juror had decided the defendant was guilty of murder because
she believed it would have been possible for the defendant to have escaped her
abusive husband without resorting to violence. In other words, there was a
substantial likelihood the Blackwell juror had refused to decide whether the
defendant’s subjective fears were reasonable under the facts actually presented,
but rather had judged the defendant by the facts of her own personal
circumstances. In contrast here, there is no evidence before us to indicate that
Juror C.B. did not believe petitioner was actually abused as a child, or that she had
determined whether he was abused by comparing their respective childhoods.
Instead, C.B. decided that the abuse petitioner did suffer was not sufficiently
mitigating so as to warrant sparing him the death penalty.
       In addition, petitioner’s contrary contentions notwithstanding, Juror C.B.’s
life experiences of childhood labor conditions on farms did not constitute
“specialized information,” nor did we intend in Wilson to restrict the scope or type
of life experiences upon which jurors may rely. And to the extent petitioner
contends C.B. committed additional misconduct by sharing her experiences with
her fellow jurors, Wilson, again, anticipates that, as part of the deliberative process
during the penalty phase, jurors will share with each other their reasons for
accepting or rejecting the evidence that was presented: “[R]elying on an
understanding, based on personal experience, of the effects of certain social
environments and family dynamics on a young person growing up, when this
understanding illuminates the significance or weight an individual juror would
accord to related evidence in a particular case, is not misconduct.” (Wilson, supra,
44 Cal.4th at p. 831.)



                                          38
       Although the juror in Wilson had some experiences similar to those of the
defendant, notably, the juror was not a victim of any crime. As such, we are
mindful that certain life experiences may create impermissible biases and others
will not. And some jurors properly will use their life experiences to help shape
their opinions, although other jurors may have been so affected by their life
experiences that they have difficulty separating their own experiences from
evidence of others’ comparable experiences.
       Gonzales v. Thomas (10th Cir. 1996) 99 F.3d 978 is instructive. In
Gonzales, the defendant was convicted of, among other things, forcible rape.
During voir dire, one of jurors denied having been involved in a “ ‘similar’ ”
“ ‘incident,’ ” but during deliberations she revealed that, decades earlier, she had
been “ ‘date raped’ ” when she was 19 years old and in school. (Id. at p. 982.)
The federal district court ruled the juror had not been dishonest during voir dire
because she genuinely perceived differences between her own experiences and the
defendant’s charged crimes. (Id. at pp. 984-985.) And, on appeal, the Tenth
Circuit rejected the argument that a rape victim as a matter of law cannot be an
impartial juror in the trial of an accused rapist. (Id. at p. 989 [“To hold that no rape
victim could ever be an impartial juror in a rape trial would, we think, insult not
only all rape victims but also our entire jury system . . . ”].) It then compared the
juror’s experiences with the charged crimes, noted the juror’s relative lack of
longstanding trauma and the passage of time, and rejected the defendant’s
contention that she was biased against him. (Id. at pp. 990-991.)
       The same is true with Juror C.B.: Nothing in her background rendered her,
as a matter of law, unable to sit as a juror in petitioner’s case, and the record
before us does not show that her childhood experiences made her predisposed to
vote for the death penalty in petitioner’s case. Rather, C.B.’s good-faith attempt to
honestly answer the juror questionnaire rebuts the initial presumption of prejudice

                                          39
created by her nondisclosure because it shows her lack of intentional misconduct.
And petitioner’s contention of a substantial likelihood of actual bias is unavailing
in light of the totality of circumstances: (1) posttrial, C.B. voluntarily disclosed
her childhood experiences; (2) she cooperated during the habeas corpus
investigation; (3) she was calm, “forthright and candid” during the evidentiary
hearing, and she displayed no defensiveness, zealotry, or obsession; (4) her
experiences were only somewhat similar to petitioner’s; (5) there was a notable
passage of time between her experiences and petitioner’s trial; and (6) there is no
evidence that her life experiences had compromised her ability to evaluate the
evidence before her.
       In addition, there is no evidence in the record before us that Juror C.B.
could not or would not deliberate with her fellow jurors; rather, her undisputed
testimony indicated that she participated in the jury’s deliberations. Nor is there
any evidence that she had prejudged the case or otherwise entered deliberations
with an impermissibly closed mind: Because jurors may form preliminary
assessments about the case, that these assessments are not later swayed by their
fellow jurors’ opinions is not necessarily a form of prejudgment indicative of bias.
(See Allen and Johnson, supra, 53 Cal.4th at pp. 75-76.)
       Although it was misconduct for Juror C.B. not to answer the pretrial juror
questionnaire accurately, there is no substantial likelihood she was actually biased
against petitioner. Rather, as permitted, C.B. applied her life experiences when
she interpreted petitioner’s mitigating evidence and weighed it against the
evidence in aggravation, that is, his four convictions of first degree murder, as well
as evidence of his involvement in three additional killings and raping a friend’s
babysitter at gunpoint. As such, we reject petitioner’s suggestion that C.B. was
predisposed to reject the defense mitigation evidence, or was otherwise unable to
act impartially.

                                          40
        We therefore accept the referee’s findings (except as otherwise indicated)
with respect to the fourth question because they are supported by substantial
evidence, and we independently conclude that petitioner has not shown a
substantial likelihood that Juror C.B. was actually biased against petitioner.4
Accordingly, petitioner has not established that he is entitled to habeas corpus
relief on his claim of prejudicial juror misconduct.
        A similarity between a juror’s life experiences and some aspect of the
litigation may so call into question a juror’s impartiality as to warrant exercising a
peremptory challenge or otherwise discharging that juror. And because voir dire
is intended in part to allow the parties to explore the prospective jurors’ possible
biases, we acknowledge that Juror C.B.’s nondisclosure deprived petitioner of the
opportunity to do so. Regardless of her misconduct, however, the “ ‘ “criminal
justice system must not be rendered impotent in quest of an ever-elusive
perfection. . . . [Jurors] are imbued with human frailties as well as virtues. If the
system is to function at all, we must tolerate a certain amount of imperfection
short of actual bias.” ’ ” (Boyette, supra, 56 Cal.4th at p. 897.) Such is the case
here.



4       Petitioner also argues that Juror C.B. was impliedly biased, if not actually
biased. We recognize that there is nonprecedential federal case law concerning
the constitutional guarantees of a fair trial and impartial jury that have implied bias
even in situations when actual bias has not been shown. Indeed, a number of
federal courts have implied bias “on the basis of similarities between the juror’s
experiences and the facts giving rise to the trial.” (Gonzales v. Thomas, supra, 99
F.3d at 987; see Hunley v. Godinez (7th Cir. 1992) 975 F.2d 316, 319 [collecting
cases in which courts have presumed bias because “the prospective juror has been
the victim of a crime or has experienced a situation similar to the one at issue in
the trial”].) But even were we to adopt this approach, it would not alter our
conclusion in this case.




                                          41
                                 V. CONCLUSION
       We discharge the order to show cause.5 Because our order to show cause
and our reference order were limited to this claim, we do not here address any
other claims set forth in the habeas corpus petition, but instead resolve them by
separate order. (See Crew, supra, 52 Cal.4th at pp. 153-154.)
                                                 CANTIL-SAKAUYE, C. J.




WE CONCUR:

CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.




5      Petitioner’s related request under Penal Code section 1181 to reduce his
sentence to life imprisonment without possibility of parole is denied for the
reasons stated in our opinion.




                                         42
                      DISSENTING OPINION BY LIU, J.
       Petitioner Abelino Manriquez was sentenced to death by a jury that
included a member who was decidedly unpersuaded by Manriquez’s mitigation
evidence based on the physical and emotional abuse and deprivation he suffered as
a child growing up on a farm. Nothing about this raises any eyebrows — until one
realizes that the skeptical juror herself, in her own words, “grew up on a farm
where I was beat[en], raped, [and] used for slave labor from the age of [five
through] 17.” This juror, C.B., described herself as “successful in my career” and
as “a very responsible Law abiding citizen.” “Having been through abuse
myself,” she said, “I do not view abuse as an excuse.”
       How, one might wonder, did this juror escape notice by defense counsel
during jury selection and end up serving on the jury (as the foreperson no less) —
despite items on the juror questionnaire that asked prospective jurors whether they
had ever been a victim of crime or had ever experienced or witnessed a violent
act? The answer is that Juror C.B. did not give accurate answers to these
questions and, as a result, did not give either party any reason to inquire into her
abusive childhood. Juror C.B.’s nondisclosure, though unintentional, was
misconduct giving rise to a presumption of prejudice. (Maj. opn., ante, at p. 11.)
       Today’s opinion says prejudice from juror misconduct occurs in these
circumstances only when the record reveals a substantial likelihood of actual bias.
That standard is readily satisfied here. As Justice Franson cogently explains, there
is a substantial likelihood — in light of Juror C.B.’s own account of how she
approached this case — that her predetermined mindset based on her childhood
experiences prevented her from giving individualized consideration to the
childhood abuse evidence actually presented in this case. This alone requires
reversal of the penalty judgment.
       But actual bias is not the only form of cognizable prejudice here. Juror
misconduct during voir dire can also result in prejudice by distorting a defendant’s
consideration of which jurors to peremptorily strike and what defense strategy to
adopt. Indeed, that is what happened in this case.
       There are stark similarities between Manriquez’s early life experiences and
Juror C.B.’s. Both grew up on farms for the majority of their childhood, where
they were often subjected to vicious beatings and forced into manual labor for
long hours. (Maj. opn., ante, at pp. 3, 6–7.) Both had traumatic experiences
marring their childhood: At the age of seven, Manriquez was once tied to a tree
and lashed with a whip by his grandmother and uncle. On another occasion, he
was hog-tied and left in a corn storage bin overnight. (Id. at p. 3.) At the age of
five, Juror C.B. was raped by a resident of the farm where she lived. (Id. at p. 7.)
       Juror C.B. failed to disclose any of this, despite being asked questions
designed to reveal this information during jury selection. (Maj. opn., ante, at
pp. 5–7.) Because of Juror C.B.’s misconduct, Manriquez was denied important
knowledge about Juror C.B.’s disposition toward one of his main theories at the
penalty phase. Had Juror C.B. revealed her prior experiences and disposition
toward those experiences, any competent counsel would have struck her from the
jury with a peremptory challenge. Indeed, why would any competent defense
attorney keep on this jury a person who had herself grown up on a farm, was
“ ‘used for slave labor,’ ” “ ‘regularly beaten,’ ” and “ ‘raped’ ” on the farm, and
yet believed adamantly, despite those experiences, that “ ‘childhood abuse was not



                                          2
an excuse’ ”? (Id. at pp. 6–7.) There is no question that Juror C.B.’s misconduct
impaired Manriquez’s right to exercise peremptory strikes.
       In addition, Juror C.B.’s misconduct likely had a prejudicial effect on
Manriquez’s arguments at trial. One of his principal mitigation arguments was
that his childhood was “ ‘marred by extreme cruelty, vicious beatings, grinding
poverty, forced labor, and a lack of care, education, affection, or encouragement
by the adults in [his] life.’ ” (Maj. opn., ante, at p. 3.) Defense counsel said to the
jury during penalty phase closing arguments: “ ‘And before you judge him, put
yourself in his place. Would you be the person you are today? No question you
wouldn’t be. Would you do the things he did? Maybe. Maybe not.’ ” (Id. at
p. 30.) It is inconceivable that competent counsel would have made this statement
if counsel had known of Juror C.B.’s past experiences and attitude toward those
experiences, as the statement played right into Juror C.B.’s firm belief that her
similar childhood trauma did not prevent her from becoming a “ ‘successful’ ” and
“ ‘very responsible Law abiding citizen.’ ” (Id. at p. 6.) In sum, because of Juror
C.B.’s omissions at voir dire, Manriquez was not afforded a fair opportunity to
exercise peremptory strikes or appropriately craft his trial strategy.
       Today’s opinion says we must uphold the verdict if, in light of the entire
record and the nature and circumstances of the misconduct, there is “ ‘ “no
substantial likelihood that one or more jurors were actually biased against the
defendant.” [Citation.] In other words, the test asks not whether the juror would
have been stricken by one of the parties, but whether the juror’s concealment (or
nondisclosure) evidences bias.’ ” (Maj. opn., ante, at pp. 11–12, quoting In re
Boyette (2013) 56 Cal.4th 866, 889–890.) But this limited inquiry does not
adequately safeguard a defendant’s right to a fair trial.
       As the court recognizes: “ ‘ “Voir dire plays a critical function in assuring
the criminal defendant that [his or her] Sixth Amendment right to an impartial jury

                                           3
will be honored. . . . [L]ack of adequate voir dire impairs the defendant’s right to
exercise peremptory challenges where provided by statute or rule . . . .” ’ ” (Maj.
opn., ante, at p. 10, quoting In re Hitchings (1993) 6 Cal.4th 97, 110 [originally
quoting Rosales-Lopez v. U.S. (1981) 451 U.S. 182, 188].) “A juror who conceals
relevant facts or gives false answers during the voir dire examination thus
undermines the jury selection process and commits misconduct. [Citations.] [¶]
Without truthful answers on voir dire, the unquestioned right to challenge a
prospective juror for cause is rendered nugatory. Just as a trial court’s improper
restriction of voir dire can undermine a party’s ability to determine whether a
prospective juror falls within one of the statutory categories permitting a challenge
for cause [citations], a prospective juror’s false answers on voir dire can also
prevent the parties from intelligently exercising their statutory right to challenge a
prospective juror for cause. [¶] Such false answers or concealment on voir dire
also eviscerate a party’s statutory right to exercise a peremptory challenge and
remove a prospective juror the party believes cannot be fair and impartial. We
have recognized that ‘the peremptory challenge is a critical safeguard of the right
to a fair trial before an impartial jury.’ [Citation.] . . . ‘[J]uror concealment,
regardless whether intentional, to questions bearing a substantial likelihood of
uncovering a strong potential of juror bias, undermines the peremptory challenge
process just as effectively as improper judicial restrictions upon the exercise of
voir dire by trial counsel seeking knowledge to intelligently exercise peremptory
challenges.’ [Citations.] ‘The denial of the right to reasonably exercise a
peremptory challenge, be it by either the trial court or a juror through concealing
material facts, is not a mere matter of procedure, but the deprivation of an absolute
and substantial right historically designed as one of the chief safeguards of a
defendant against an unlawful conviction.’ [Citations.]” (In re Hitchings, at
pp. 111–112; see Ex parte Dobyne (Ala. 2001) 805 So.2d 763, 772 [“The form of

                                            4
prejudice that would entitle a party to relief for a juror’s nondisclosure or
falsification in voir dire would be its effect, if any, to cause the party to forgo
challenging the juror for cause or exercising a peremptory challenge to strike the
juror.”].)
       People v. Diaz (1984) 152 Cal.App.3d 926 is instructive. The defendant
was accused of committing an assault with a knife and causing great bodily injury.
(Id. at p. 930.) During voir dire, a juror concealed the fact that she had been
attacked at knife point during an attempted rape. (Id. at pp. 930–931.) On the last
day of trial, the juror told court personnel of the knife attack. (Id. at p. 931.)
Defense counsel asked the trial court to dismiss the juror, but because defense
counsel refused to proceed with 11 jurors, the trial court denied the motion, and
the defendant was convicted. (Ibid.) The Court of Appeal reversed, concluding
that the juror’s concealment prevented defense counsel from fairly evaluating
whether to use a peremptory challenge. (Id. at p. 936 [“there is a strong inference
of potential prejudice to defendant in his selection of a jury”].)
       To see even more clearly the inadequacy of today’s prejudice inquiry,
suppose multiple jurors, not just Juror C.B., had made similar misrepresentations
during voir dire that were directly relevant to Manriquez’s mitigation arguments.
And suppose those jurors are found not actually biased under the same inquiry that
leads the court to find Juror C.B. not actually biased. In such a case, the
defendant’s right to exercise peremptory challenges would be illusory, and his
opportunity to craft his trial strategy and arguments to the jury would be rendered
a farce. Under the reasoning of today’s opinion, such a defendant would have no
recourse — a result plainly at odds with basic notions of a fair trial.




                                           5
       Because Juror C.B.’s misconduct resulted in prejudice to Manriquez during
jury selection and during the penalty phase of his trial, I would grant his petition
for relief from the penalty verdict. I respectfully dissent.


                                                          LIU, J.


I CONCUR:

FRANSON, J.*




* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.



                                           6
                    DISSENTING OPINION BY FRANSON, J.P.T.
       I join in Justice Liu’s dissenting opinion. I write separately to address an alternate
ground, which assumes the majority opinion adopted the appropriate legal standard for
balancing a criminal defendant’s Sixth Amendment and state constitutional rights to a
trial by an impartial jury against society’s interest in the finality of criminal judgments.1
Applying that standard, the majority concluded there was no substantial likelihood that
Juror C.B. was actually biased against petitioner. I respectfully dissent from that
conclusion.
       As outlined extensively in People v. Manriquez (2005) 37 Cal.4th 547, the details
of petitioner’s crimes are horrific, and overwhelming evidence was presented at trial to
support his guilt. Petitioner presented a minimal defense of one law enforcement officer,
who presented hearsay testimony from a witness to one of the killings, comprising six
pages of reporter’s transcript. (Id. at p. 567.) By this, he essentially conceded his guilt
and focused his efforts to avoid a death sentence by presenting evidence of his traumatic
childhood physical and mental abuse as mitigating circumstances. The role of
petitioner’s childhood abuse in his mitigation arguments is crucial to the ultimate issue of
actual bias.

1      The question of the proper standard for analyzing a juror’s failure to disclose
material information during voir dire has produced a variety of approaches among the
lower federal court and state courts. (See Lafave et al., 6 Criminal Procedure (4th ed.
2015) § 24.9(f), p. 681 [jury misconduct]; Loewy, When Jurors Lie: Differing Standards
for New Trials (1995) 22 Am. J. Crim. L. 733 [survey and analysis of the various
standards courts use in determining whether a juror’s nondisclosure requires a new trial]
(Loewy).) Part of the variety in approaches results from how lower courts apply
McDonough Power Equipment v. Greenwood (1984) 464 U.S. 548, a civil case that did
not involve the Sixth Amendment and produced a three-way split on the standard to be
used. (See Loewy, supra, at pp. 739-741.)
       With this backdrop, I address the second basis mentioned by the majority for a
finding of actual bias—C.B.’s rejection of petitioner’s traumatic childhood experiences as
mitigating circumstances. In my view, the record establishes a substantial likelihood that
(1) C.B. had a predetermined state of mind in reference to the case—specifically, the
material issue of whether the childhood abuse that petitioner suffered could be a
mitigating circumstance—and (2) C.B. relied on her strongly held belief that petitioner’s
childhood abuse was not an excuse to reject the petitioner’s case in mitigation without
giving individualized consideration to the evidence actually presented. Therefore, I
conclude the record demonstrates a substantial likelihood of actual bias.
I.     JUROR MISCONDUCT, REBUTTABLE PRESUMPTION AND ACTUAL
       BIAS
       I agree that C.B.’s unintentional failure to disclose material information about her
childhood was juror misconduct that raises a rebuttable presumption of prejudice. (Maj.
opn., ante, at pp. 10-11.) When determining whether the prosecution has rebutted the
presumption of prejudice that arises from juror misconduct, the court must independently
determine from the entire record, including the nature of C.B.’s misconduct and “all the
surrounding circumstances,” whether there was no substantial likelihood she was actually
biased against petitioner. (In re Carpenter (1995) 9 Cal.4th 634, 657; Maj. opn., ante, at
p. 11; In re Boyette (2013) 56 Cal.4th 866, 890 (Boyette).) “All the surrounding
circumstances” refers to C.B.’s statements, demeanor, and childhood experiences, but
does not include the facts of the crimes. (Maj. opn., ante, at p. 40.) The substantial
likelihood test is an objective standard. (In re Hitchings (1993) 6 Cal.4th 97, 118.)
       In the context of juror misconduct in a criminal proceeding, “[a]ctual bias” is
defined as “the existence of a state of mind on the part of the juror in reference to the
case, or to any of the parties, which will prevent the juror from acting with entire
impartiality, and without prejudice to the substantial rights of any party.” (Code Civ.

                                              2
Proc., § 225, subd. (b)(1)(C); People v. Wheeler (1978) 22 Cal.3d 258, 273-274.) This
definition of actual bias extends beyond hatred of or ill will toward a defendant
personally or a class of which he or she is a member. As relevant here, actual bias exists
when a juror “ha[s] been so affected by [her] life experiences that [she] ha[s] difficulty
separating [her] own experiences from evidence of others’ comparable
experiences.” (Maj. opn., ante, at p. 39.) To be sure, “jurors generally are expected to
interpret the evidence presented at trial through the prism of their life experiences.” (Id.
at p. 36.) But here it is evident from C.B.’s comments about the similarity between
petitioner’s abusive childhood and her own abusive upbringing on a farm that C.B. had
“difficulty separating her own experiences from the evidence in petitioner’s case.” (Id. at
p. 35.)
II.       APPLICATION OF DEFINITIONS TO THE FACTS
          The existence of a state of mind on the part of C.B. on the issue of whether the
childhood physical and mental abuse suffered by petitioner could constitute mitigating
circumstances is not contested. During oral argument, the Attorney General
acknowledged that C.B. had a “predetermined opinion” that petitioner’s abuse was not an
excuse. The Attorney General equated this to a predetermined mindset. Similarly, the
majority acknowledges that “C.B. plainly and repeatedly stated that she did not consider
petitioner’s childhood abuse to be an excuse or mitigating because, although she too had
been abused, she had not committed crimes.” (Maj. opn., ante, at p. 36.)
          C.B.’s declarations clearly establish her state of mind on petitioner’s childhood
abuse. In her 2007 declaration, C.B. described the abuse she suffered, compared it to
petitioner’s childhood abuse, and stated that “[h]aving been through abuse myself, I do
not view abuse as an excuse.” Also, based on her own experience of childhood abuse,
C.B. openly acknowledged her “belief that childhood abuse was not an excuse” and that
she communicated this belief to the other jurors. Furthermore, C.B.’s 1993 response to a

                                                3
posttrial questionnaire explained the basis for her belief by describing her childhood
circumstances and stating: “I am successful in my career and am a very responsible Law
abiding citizen. It is a matter of choice!” These statements plainly identified C.B.’s
belief—that is, her state of mind—that the kind of childhood abuse petitioner suffered,
which she believed to be similar to her own experience, did not constitute an excuse or a
mitigating circumstance.2
       Further, C.B.’s predetermined state of mind about petitioner’s childhood abuse
prevented her from considering the evidence actually presented. Her attitude toward such
abuse cannot be described as “ ‘ “light impressions, which may fairly be presumed to
yield to the testimony that may be offered, which may leave the mind open to a fair
consideration of the testimony.” ’ ” (Nesler, supra, 16 Cal.4th at p. 581.) The categorical
and emphatic manner in which C.B. repeatedly stated her belief, based on her own
experience, that “childhood abuse was not an excuse” and her sharing these beliefs and
experiences with her fellow jurors indicates that C.B. held “ ‘ “strong and deep
impressions which close the mind against the testimony that may be offered in opposition
to them, which will combat that testimony and resist its force.” ’ ” (Ibid.) Most notably,
there is no indication in the record that C.B. was ever open to evidence that might run
counter to her own experience or that C.B. actually considered the evidence presented at
trial in evaluating the particular circumstances of petitioner’s individual case, as opposed
to making an unqualified judgment based on her own experiences.

2      In contrast to the present case, courts often are required to draw inferences to
determine a person’s state of mind. Here, C.B.’s own statements provide direct evidence
of her state of mind and the reasons that particular state of mind existed prior to the
trial—that is, was predetermined. Accordingly, this is not a situation where we are
required to apply an objective standard and draw inferences about whether extraneous
evidence resulted in a predetermined state of mind. (Cf. Boyette, supra, 56 Cal.4th at
p. 892 [information jurors acquired by watching a movie did not establish a substantial
likelihood of bias during penalty phase].)

                                             4
       Accordingly, an evaluation of C.B.’s own undisclosed experiences of childhood
abuse and the opinion she formed based on that experience are sufficient to establish a
substantial likelihood that she could not impartially consider the evidence presented by
petitioner.
       The majority evaluates the evidence in the record differently and describes C.B.’s
thought process by stating “C.B. decided that the abuse petitioner did suffer was not
sufficiently mitigating so as to warrant sparing him the death penalty.” (Maj. opn., ante,
at p. 38) In addition, “C.B. applied her life experiences when she interpreted petitioner’s
mitigating evidence and weighed it against the evidence in aggravation.” (Maj. opn.,
ante, at p. 40.) But these characterizations of C.B.’s decisionmaking are conspicuously
bereft of any citation to C.B.’s own comments about how she actually responded to
petitioner’s evidence. Her comments do not reveal deliberative consideration of
petitioner’s individualized circumstances based on the evidence actually presented. They
instead reveal a categorical application of a predetermined mindset based on C.B.’s own
experiences.
       The majority also concludes the evidence that C.B. was prevented from acting
impartially was outweighed by her honesty, forthrightness, cooperation, the fact that her
childhood experiences were “only somewhat similar,” there was a notable passage of
time between her experiences and the trial, and there was no evidence that her
experiences had a traumatic or life-changing impact on her. (Maj. opn., ante, at p. 40.)
As to the passage of time, C.B.’s undisclosed childhood events, however distant,
obviously and strongly shaped her personal views, which led her to “plainly and
repeatedly state[] that she did not consider petitioner’s childhood abuse to be an excuse or
mitigating [factor].” (Maj. opn., ante, at p. 36.) Thus, the passage of time does not
reduce to insignificance the likelihood that C.B. applied her belief that abuse is not an
excuse to categorically reject petitioner’s childhood abuse as a mitigating circumstance.

                                              5
Moreover, although the majority characterizes C.B.’s and petitioner’s childhood
experiences as “only somewhat similar,” the crucial fact is that “certainly C.B. believed
their childhood to be similar.” (Id. at p. 35, italics added.)
       The majority places great weight on the finding that C.B.’s nondisclosure was
unintentional.3 As evidenced by her honesty and candor in explaining her reasons for not
disclosing her traumatic childhood, it is clear that C.B. did not appreciate that her mindset
might disqualify her from sitting as a juror. Therefore, she was very open about her
background and thoughts. Many people do not appreciate their personal bias or
prejudices, and are therefore very open and honest about their thoughts and opinions.
Such honesty does not lessen the likelihood that her vocalized state of mind prevented her
from acting impartially—that is, weighing the evidence offered in mitigation instead of
rejecting it based on a predetermined state of mind.
       In evaluating the likelihood that C.B. actually weighed the evidence of petitioner’s
childhood abuse or, alternatively, categorically rejected it because abuse is not an excuse,
I conclude there is a substantial likelihood C.B. applied her predetermined state of mind
and categorically rejected that evidence in deciding to impose the death penalty. While
C.B. might have undertaken an actual weighing of the evidence, there is a substantial
likelihood she did not. The existence of this substantial likelihood is supported by (1) her
own statements describing her mental process; (2) the similarity she perceived between
her own experiences and petitioner’s; (3) the categorical and unequivocal nature of her
belief that childhood abuse is not an excuse; and (4) the fact she openly communicated
her childhood experiences and her resulting belief to the other jurors. This evidence
reasonably supports the inference that she considered them relevant to the case in

3      But irrespective of whether the nondisclosure was intentional or not, the
presumption of prejudice is justified because the harm caused by the nondisclosure was
the same—it hid C.B.’s predetermined mindset.

                                               6
mitigation. In contrast to People v. Wilson (2008) 44 Cal.4th 758, the evidence in this
case is not readily susceptible to the inference that the juror’s life experience was used to
interpret or weigh the evidence presented. Here, there is a substantial likelihood C.B.’s
life experience produced a specific attitude or prejudgment that led her to assign no
mitigating weight to petitioner’s childhood abuse without giving individualized
consideration to the evidence actually presented.
       In sum, the presumption of prejudice is not rebutted by a showing that there was
no substantial likelihood of actual bias against the case in mitigation presented by the
petitioner. Although the facts of the underlying crimes and the evidence in aggravation
are horrendous, these facts are not relevant in determining C.B.’s mindset. A penalty
phase verdict tainted by a substantial likelihood a juror was actually biased against a
defendant must be reversed, “no matter how convinced we might be that an unbiased jury
would have reached the same verdict.” (Nesler, supra, 16 Cal.4th at p. 579.) I would
grant the petition, vacate the judgment insofar as the penalty of death was imposed, and
allow a retrial of the penalty phase.4




4      Before adopting a particular interpretation and application of statutory language,
courts test that interpretation by considering the consequences that flow from it. (See
Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.) This court’s
interpretation and application of the definition of “actual bias” contained in Code of Civil
Procedure section 225, subdivision (b)(1)(C) is subject to this test. One of the
consequences of the majority’s view of “actual bias” is that a juror with C.B.’s state of
mind relating to childhood abuse and privation could not be challenged for cause based
on actual bias. Thus, a defendant—even one whose case in mitigation is based primarily
on evidence of childhood abuse and privation—would be compelled to exercise a
peremptory challenge to avoid empaneling a juror who would categorically reject
childhood abuse and privation as mitigating circumstances. In my view, such a result
during the voir dire process could unduly impinge a defendant’s constitutional right to an
impartial jury.

                                              7
                                                 FRANSON, J.*

I CONCUR:

LIU, J.




*      Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                             8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Manriquez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S141210
Date Filed: July 26, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert Armstrong

__________________________________________________________________________________

Counsel:

Bingham McCutchen, Nora C. Cregan, Sarah Esmaili, Edward J. Donnelly, Todd A. Pickles, Tracy R.
Roman, John R. Reese, Marta Miyar Palacios, Tom Clifford, Sujal Shah, Olivia Para, Dustin Brown,
Robert A. Brundage, Elisa M. Cervantes, Nitin Jindale and Monica A. Hernandez for Petitioner Abelino
Manriquez.

Bill Lockyer, Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Robert R.
Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka and Lance E.
Winters, Assistant Attorneys General, Keith H. Boron, Sharlene A Honnaka, Jaime L. Fuster, Timothy M.
Weiner and Kimara A. Aarons, Deputy Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert A. Brundage
Bingham McCutchen
Three Embarcadero Center
San Francisco, CA 94111-4067
(415) 393-2000

Kimara A. Aarons
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6092




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