Filed 12/23/15 P. v. Flanigan CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068332
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12904186)
                   v.

ANDRE DESHAWN FLANIGAN,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
         A jury convicted Andre DeShawn Flanigan of possession of a firearm by a felon.
On appeal, Flanigan contends the prosecutor committed acts of prejudicial misconduct
during cross-examination and closing argument, the trial court erred in denying his new
trial motion based on juror misconduct without an evidentiary hearing, and the
cumulative effect of these errors violated his right to due process. We affirm.
                              PROCEDURAL BACKGROUND
       The District Attorney of Fresno County filed a second amended information
charging Flanigan with assault with a firearm (Pen. Code,1 §245, subd. (a)(2); count 1),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and misdemeanor
battery (§ 242; count 3). The information further alleged that Flanigan had suffered a
prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served five
prior prison terms (§ 667.5, subd. (b)). Following trial, the jury found Flanigan not
guilty on counts 1 and 3, and guilty on count 2, and he admitted the prior conviction
allegations. After denying Flanigan’s motion for a new trial, the trial court sentenced
Flanigan to a total of nine years in prison.
                                 FACTUAL BACKGROUND2
       Prosecution Evidence
       On May 26, 2012, around 11:00 p.m., Clovis Police Officer Steve Cleaver was
dispatched to an apartment complex where Flanigan’s girlfriend, Natalie Taylor, lived.
When Cleaver arrived, he saw Flanigan exiting the driveway in a green Ford Mustang.
Cleaver directed Flanigan to stop his car and asked him his name. After advising
Flanigan that the police had been called to the area for a disturbance possibly involving a
firearm, Cleaver directed Flanigan to step out of the car and performed a pat-down search
on him.
       In the meantime, Clovis Police Corporal Drake Hodge arrived and stopped his
police truck in front of Flanigan’s car. Hodge approached the car and observed what
appeared to be the handle of a semiautomatic pistol sticking out from underneath the
driver’s seat. Hodge called out to Flanigan and asked him if it was a real gun or an

1      All further statutory references are to the Penal Code unless otherwise specified.
2        Because the jury acquitted Flanigan on counts 1 and 3, pertaining to his alleged attack on
his girlfriend’s friend, Victoria Bradshaw, our factual summary focuses on facts underlying
count 2 (possession of a firearm by a felon) that is the subject matter of this appeal.


                                                2.
airsoft gun. Flanigan replied that it was a real gun. Hodge then asked if the gun was
loaded and Flanigan said yes. At this point, Cleaver placed handcuffs on Flanigan and
seated him in the back of his patrol car.
       Cleaver later returned to the patrol car and, after reading Flanigan his Miranda3
rights, questioned him about the gun found in his car. Cleaver first asked Flanigan if he
had a permit to carry a concealed weapon. Flanigan replied that he did not. Cleaver then
asked Flanigan if the gun was his. Flanigan said that it was and that he had purchased it
off the street from some guy for $100, but declined to say who he purchased it from.
Cleaver asked Flanigan if he thought the gun was stolen. Flanigan replied that it
probably was. When asked how the gun came to be on the floorboard of his car,
Flanigan said he removed it from Taylor’s apartment for her safety because she was
intoxicated and out of control.
       Cleaver continued asking Flanigan “clarifying questions” about the gun and how it
came to be in his possession. During this time, Flanigan told Cleaver “the firearm had
actually been in his vehicle for the past … either two days or two weeks” (the officer
testified he could not specifically recall which time period Flanigan stated). A little later,
Flanigan “changed the story” and said the gun was not his but was actually purchased by
Taylor. Cleaver asked Flanigan why Taylor purchased the gun. Flanigan responded that
she lived in a bad neighborhood and needed it for protection. Cleaver then asked
Flanigan if he felt he needed protection with the firearm on the streets, to which Flanigan
responded, “What do you think?”
       Defense Evidence
       Flanigan testified in his own defense, maintaining that the gun belonged to Taylor
and claiming that, for safety reasons, he removed the gun from her apartment and placed
it in his car on the night of May 26, 2012. Flanigan claimed he only learned about the

3      Miranda v. Arizona (1966) 384 U.S. 436.


                                              3.
gun the previous day, when he went to visit Taylor at her apartment. At that time, she
showed him the gun and said she got it from one of her relatives.
       After placing the gun in his car on the night of May 26, 2012, Flanigan returned to
Taylor’s apartment twice to retrieve some of his belongings to place in his car. When he
returned to the apartment the second time, he found the front door locked and his key no
longer worked. Unable to get back inside Taylor’s apartment, Flanigan returned to his
car. The police stopped him as he was driving out of the apartment complex.
       Flanigan’s account of what happened next differed in a number of respects from
the account given by Cleaver. According to Flanigan’s testimony, after directing
Flanigan to step out of his car, the police officer subjected him to a pat-down search and
placed him in handcuffs without telling him why he was being handcuffed. The officer
then placed him in the patrol car and walked away. At some point, the officer returned
to the patrol car, opened the door, and directed Flanigan to stand up. Flanigan then heard
a voice ask him, “That Glock you have under your seat, is it real?” After Flanigan
answered yes, the police placed him back inside the patrol car.
       Flanigan testified that he had been sitting in the patrol car for a while, “when all of
a sudden, an officer got in the car; and he asked me, ‘Where did you get the gun?’” The
officer did not read Flanigan his Miranda rights before asking him about the gun.
Flanigan told the officer that he removed the gun from his girlfriend’s apartment for her
safety because she was drinking and out of control.
       Flanigan was honest with the officer from the beginning and did not recall the
officer ever asking him any clarifying questions about his possession of the gun. The
officer never asked him whether he had a concealed weapons permit, where he bought
the gun, or whether it was stolen. And Flanigan never told the officer that he bought the
gun for $100, that it was probably stolen, or that it had been in his car for the past two
days or past two weeks.



                                              4.
                                    DISCUSSION
I.    Alleged Prosecutorial Misconduct During Cross-examination
      Flanigan contends the prosecutor committed prejudicial misconduct during cross-
examination by asking him whether Cleaver was lying during his testimony. We
disagree.
      A.    Background
      During cross-examination, the prosecutor questioned Flanigan, in relevant part, as
follows:

              “Q And it’s your testimony that Officer Cleaver, when he was up
      there testifying, that he lied?

            “A Yes, he did.

            “[DEFENSE COUNSEL]: Objection. That’s improper.
      Prosecutorial misconduct.

            “THE COURT: All right. First of all, it’s not prosecutorial
      misconduct. And, however, you can rephrase your question.

            “[THE PROSECUTOR]: Q When Officer Cleaver testified that he
      asked you about the firearm, was that true?

             “A When he asked me about the firearm? I don’t understand what
      you’re saying.

             “Q You heard Officer Cleaver testify this morning and this
      afternoon; correct?

            “A Yes, I did. [¶] … [¶]

            “Q What you heard him say, is that an accurate portrayal of what
      happened that night?

            “A I don’t understand. I don’t even know what ‘portrayal’ means.
      Can you explain that to me?

            “Q Yes. What you heard him testify to—

            “A Uh-huh.


                                           5.
              “Q –is what he testified to what happened?

              “A Partly. Partly true; partly not.

              “Q What part wasn’t the truth?

             “A All the questions he saying that I asked and, um, that I—that he
       asked me and I answered, um, saying that I was never in handcuffs, you
       know, before. A lot of little things that he—he lied about.

              “Q So it’s your testimony, then, that Officer Cleaver got on the
       stand and lied?

              “[DEFENSE COUNSEL]: Objection. Same objection.

              “THE COURT: Overruled.

              “[FLANIGAN]: Yes.”
       B.     Analysis
       “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34 (Morales), 44; accord, People v.
Farnam (2002) 28 Cal.4th 107, 167; People v. Wilson (2005) 36 Cal.4th 309, 337
(Wilson).)
       Both parties acknowledge that case law presents differing views on whether a
prosecutor’s “‘were they lying’” questions are reversible error. They must be evaluated
in context. They are not always admissible or always inadmissible. (People v. Chatman
(2006) 38 Cal.4th 344, 380–384 (Chatman).) “‘[W]ere they lying’” questions are
impermissible when they are argumentative or designed to elicit speculative or irrelevant
testimony, but are permissible if the witness has personal knowledge that allows him to




                                             6.
provide competent testimony “that may legitimately assist the trier of fact in resolving
credibility questions.” (Id. at p. 384.)
       “A defendant who is a percipient witness to the events at issue has personal
knowledge whether other witnesses who describe those events are testifying truthfully
and accurately. As a result, he might also be able to provide insight on whether witnesses
whose testimony differs from his own are intentionally lying or are merely mistaken.”
(Chatman, supra, 38 Cal.4th at p. 382, italics added.) For example, the defendant might
claim that he had a “better vantage point from which to observe the event” or knows of
“facts that would show a witness’s testimony might be inaccurate.” (Id. at p. 383.) In
instances where he “knows the other witnesses well, he might know of reasons those
witnesses might lie.” (Id. at p. 382.) A defendant’s insight into facts or motives “would
properly assist the trier of fact in ascertaining whom to believe.” (Id. at p. 383.)
       Although Flanigan did not know Cleaver personally, Flanigan testified as a
percipient witness and had personal knowledge of the events. (See Chatman, supra, 38
Cal.4th at p. 382.) By choosing to testify, Flanigan put his own veracity in issue.
Because his testimony contradicted that of Cleaver, it was permissible for the prosecutor
to seek to clarify Flanigan’s position and give him the opportunity to explain the
divergent testimony. Under the circumstances—including the fact the prosecutor’s
questions elicited additional information from Flanigan—the questions “appropriately
assisted the jury in resolving the issue of whose testimony was more credible. There was
no misconduct.” (People v. Collins (2010) 49 Cal.4th 175, 206; accord, People v.
Hawthorne (2009) 46 Cal.4th 67, 96–98; People v. Tafoya (2007) 42 Cal.4th 147, 177–
179; Chatman, supra, 38 Cal.4th at p. 383.) This was not a case where the prosecutor
improperly used “were they lying” questions to berate the defendant and to force him to
call officers liars in an attempt to inflame the passions of the jury. (See People v.
Zambrano (2004) 124 Cal.App.4th 228, 242.) For all these reasons, we reject Flanigan’s
claim that the prosecutor committed misconduct during cross-examination.

                                              7.
II.    Alleged Prosecutorial Misconduct During Closing Argument
       Flanigan next contends that the prosecutor committed prejudicial misconduct
during closing argument by misstating the reasonable doubt standard. He also contends
that, in overruling defense counsel’s objection to the prosecutor’s argument and
reminding the jury to follow the law provided by the court, the trial court effectively
ratified the prosecutor’s misstatement of the law and misinstructed the jury on the burden
of proof, giving rise to structural error that is reversible per se. Concluding no
prosecutorial misconduct occurred, we reject these contentions.
       A.     Background
       During the opening portion of the prosecutor’s closing argument, the following
exchange occurred:

              “[THE PROSECUTOR]: You’ve heard the phrase ‘reasonable
       doubt’ throughout this trial and the instructions, and that’s the burden that
       must be met in this case. It’s proof that leaves you with an abiding
       conviction that the charge is true. It doesn’t have to eliminate all doubt,
       because everything in life is open to some possible or imaginary doubt.
       What does this mean?

             “It just simply means what is reasonable in this case? What does the
       evidence show and is it reasonable to believe that the evidence shows the
       defendant’s guilty?

              “[DEFENSE COUNSEL]: Objection. Misstates the law.

               “THE COURT: All right. Ladies and gentlemen, again, you
       determine what the facts are from the evidence. And if what counsel state
       in their arguments is contrary to the law that I have provided to you, you’re
       to follow the law as provided by the Court.

              “So with that, [prosecutor], you may continue.

              “[THE PROSECUTOR]: Just think about what is reasonable. Is
       defendant’s story reasonable or is Victoria’s [the alleged victim of counts 1
       & 3] testimony reasonable? Considering the testimony of the officers, the
       weapon that was found in defendant’s car, which story is reasonable?”



                                              8.
      Later, outside the presence of the jury, defense counsel reiterated his objection to
the prosecutor’s argument and the trial court responded as follows:

             “[DEFENSE COUNSEL]: …Your Honor, I believe that during her
      argument [the prosecutor] made improper argument about the reasonable
      doubt standard and lowered the burden by arguing that it’s a determination
      of which is a more reasonable description of events when, in fact, the
      instruction that’s given to the jury regards whether or not they’re left with
      an abiding conviction that the charge is true.

              “This is the most important jury instruction given in any criminal
      case. And when I objected, the Court did not rule on the objection and did
      not address the improper argument or re-instruct the jury with regard to
      that, and I’m concerned about that. [¶] … [¶]

             “THE COURT: All right. So, [defense counsel], first of all,
      concerning the objection, as I previously instructed the jury, if counsel
      misstates the law, they’re to follow the law as the Court has instructed
      them.

              “Now, concerning your objection whether she misstated the law,
      first of all, her—[the prosecutor’s] PowerPoint clearly—and she made
      reference to it, and I’ve reviewed my notes—[the prosecutor] clearly stated
      that what the burden was, was beyond a reasonable doubt, to an abiding
      conviction. That was on her PowerPoint. That was her argument.

             “She then got to the part of reviewing the statements made and
      whether they are reasonable, and that’s—and so I don’t—based on what I
      heard, her argument and her statements in her argument, there’s no
      reasonable likelihood that the jury would construe or apply her comments,
      her argument, in an objectionable way.

              “So, therefore, it—given that my instruction to the jury to follow the
      law as I’ve provided addresses the issue of any misstatement—which I
      don’t believe she misstated, but if she did misstate it, it was ever so slight.
      I mean, if—if it could be construed in that way, reasonable people can
      differ.

             “However, it’s the Court’s opinion that she did not misstate the law.
      She did not lighten the People’s burden of proving each and every element
      beyond a reasonable doubt to an abiding conviction. And so given that, the
      Court has addressed it and has made its ruling that it was not a
      misstatement of the law. But in the event that it was, it was—there’s no


                                            9.
       likelihood the jury could have misconstrued those statements in any way
       that would be prejudicial to your client.”
       After this exchange, defense counsel made his closing argument and the
prosecutor made her rebuttal argument. The prosecutor concluded her rebuttal with these
statements:

       “Ladies and gentlemen, I ask that you just consider all of the evidence.
       You think about what’s reasonable. If you have two explanations, which
       you have here, you have the defendant’s explanation of what happened and
       then you have the explanation by Victoria and the officers, is one
       unreasonable? And I submit to you that the defendant’s version of what
       happened is unreasonable, does not make sense. And if you have an
       unreasonable conclusion, then you get rid of that. [¶] Ladies and
       gentlemen, I ask that you find the defendant guilty of all the counts
       charged. Thank you.”
       B.     Analysis
       “‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ [Citation.] ‘Prosecutors
have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.]
Whether the inferences the prosecutor draws are reasonable is for the jury to decide.’”
(Wilson, supra, 36 Cal.4th at p. 337.)
       “‘[I]t is improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements.’” (People v. Hill (1998) 17 Cal.4th 800,
829–830 (Hill).) However, “[a]t closing argument a party is entitled both to discuss the
evidence and to comment on reasonable inferences that may be drawn therefrom.”
(Morales, supra, 25 Cal.4th at p. 44.) Furthermore, a “‘prosecutor is entitled to comment
on the credibility of witnesses based on the evidence adduced at trial.’” (People v. Young
(2005) 34 Cal.4th 1149, 1191–1192.)




                                             10.
       Applying these rules here, we find that it is not reasonably likely that the jury
interpreted the prosecutor’s comments in the way Flanigan contends. According to
Flanigan, the prosecutor’s comments improperly suggested that the jury’s task, in
applying the beyond a reasonable doubt standard was to weigh the evidence presented by
both sides, and to find in favor of the side whose version was more reasonable, rather
than determining whether the prosecution had met its burden of proving all the elements
of the charged offenses beyond a reasonable doubt. However, when read as a whole, the
prosecutor’s argument does not support Flanigan’s interpretation. (See People v. Dennis
(1998) 17 Cal.4th 468, 522 [“we must view the statements in the context of the argument
as a whole”].)
       Viewed in context, the complained-of statements of the prosecutor—asking the
jury to consider whether Flanigan’s or the prosecution witnesses’ version of events was
reasonable—did not pertain to the legal standard of proof beyond a reasonable doubt but
instead pertained to the witnesses’ credibility, which was a key issue at Flanigan’s trial.
As the trial court aptly observed in addressing defense counsel’s objection below, after
mentioning the prosecution’s burden of proof, which the court noted for the record was
accurately reflected in the prosecutor’s accompanying PowerPoint presentation, the
prosecutor shifted to reviewing witnesses’ statements. She essentially argued that the
prosecution witnesses’ version of events was more credible than Flanigan’s based on the
evidence presented at trial. Such evidence included Cleaver’s testimony that Flanigan
provided multiple and conflicting explanations regarding the firearm the police officers
found in his car. The prosecution’s argument that Flanigan’s version of events was
unreasonable compared to that of the prosecution witnesses constituted a fair comment on
the issue of the credibility of witnesses and did not misstate the beyond a reasonable
doubt standard or shift the burden of proof to the defense.
       However, it bears noting that Flanigan did have the burden of proof with respect to
the affirmative defense he raised to count 2 (felon in possession of firearm), which was

                                             11.
the only count on which he was ultimately convicted by the jury. As acknowledged by
both sides during closing argument, there was no dispute that the prosecution’s evidence
established the essential elements of count 2. Thus, the critical issue before the jury was
whether Flanigan proved his defense of necessity, which he had the burden of proving by
a preponderance of the evidence.4 Flanigan’s credibility and the reasonableness of his
version of events compared to that of the testifying police officers were certainly
appropriate factors for the jury to weigh in determining whether he met his burden of
proving the affirmative defense, and the jury could properly reject the defense if it
concluded that the officers’ accounts were more credible or reasonable than Flanigan’s.
       Moreover, the prosecutor’s statements here are distinguishable from the one found
improper by our Supreme Court in Hill, supra, 17 Cal.4th 800, a case Flanigan cites in
support of his prosecutorial misconduct claim. In Hill, the prosecutor improperly shifted
the burden of proof to the defendant when she explained reasonable doubt to the jury as
follows: “‘[I]t must be reasonable. It’s not all possible doubt. Actually, very simply, it
means, you know, you have to have a reason for this doubt. There has to be some
evidence on which to base a doubt.’... ‘There must be some evidence from which there is
a reason for a doubt. You can’t say, well, one of the attorneys said so.’” (Hill, supra, 17


4        The trial court correctly instructed the jury on the defense of necessity under CALCRIM
No. 3403 as follows: “The defendant is not guilty of Possession of a Firearm by a Felon as
charged in Count Two if he acted because of legal necessity. [¶] In order to establish this
defense, the defendant must prove that: [¶] 1. He acted in an emergency to prevent a significant
bodily harm or evil to himself or someone else; [¶] 2. He had no adequate legal alternative; [¶] 3.
The defendant’s acts did not create a greater danger than the one avoided; [¶] 4. When the
defendant acted, he actually believed that the act was necessary to prevent the threatened harm or
evil; [¶] 5. A reasonable person would also have believe that the act was necessary under the
circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency.
[¶] The defendant has the burden of proving this defense by a preponderance of the evidence.
This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden
of proof by a preponderance of the evidence, the defendant must prove that it is more likely than
not that each of the six listed items is true.”




                                               12.
Cal.4th at p. 831.) The California Supreme Court explained that “to the extent [the
prosecutor] was claiming there must be some affirmative evidence demonstrating a
reasonable doubt, she was mistaken as to the law, for the jury may simply not be
persuaded by the prosecution’s evidence. [Citation.] On the other hand, [the prosecutor]
may simply have been exhorting the jury to consider the evidence presented, and not
attorney argument, before making up its mind.” (Hill, supra, 17 Cal.4th at pp. 831–832.)
The Supreme Court said the question was arguably close, but it concluded it was
reasonably likely that the jury understood the comments “to mean defendant had the
burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Id. at
p. 832.) The Supreme Court reversed the verdict in Hill, but it did so based upon “the
many acts of prosecutorial misconduct and other errors that plagued that trial.” (People
v. Booker (2011) 51 Cal.4th 141, 186.)
       Unlike Hill, this case was not plagued with multiple acts of prosecutorial
misconduct, and, as just discussed, the prosecutor was not trying to explain to the jury the
concept of reasonable doubt. Rather, the prosecutor properly commented on the
credibility of witnesses based on the evidence at trial. In reviewing the prosecutor’s
argument in its entirety, we found no statements telling the jury, either explicitly or
implicitly, that the defense had the burden to produce evidence demonstrating a
reasonable doubt as to Flanigan’s guilt. As previously discussed, however, to the extent
the prosecutor’s comments could be construed as inviting the jury to weigh the
reasonableness of both sides’ versions of events in applying the preponderance of an
evidence standard applicable to Flanigan necessity defense, such comments were not
inaccurate nor did they misstate or lessen the prosecution’s burden of proving the
elements of the charged offenses beyond a reasonable doubt.
       Finally, the jury was instructed with CALCRIM No. 200 regarding its obligation
to follow the law as set forth in the instructions, and to disregard attorney comments that
were inconsistent with the instructions. The jury was also instructed with CALCRIM

                                             13.
No. 222, which told them that “[n]othing that the attorneys say is evidence.” CALCRIM
No. 220 correctly instructed the jury about the presumption of innocence and the
prosecutor’s burden of proving guilt beyond a reasonable doubt.
       We presume the jury followed these instructions. (People v. Boyette (2002) 29
Cal.4th 381, 436; see also People v. Prince (2007) 40 Cal.4th 1179, 1295.) We also
presume the “‘the jury treated the court’s instructions as statements of law, and the
prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’”
(People v. Seaton (2001) 26 Cal.4th 598, 646; see also People v. Samayoa (1997) 15
Cal.4th 795, 844.) Thus, we conclude that any lingering danger the jury might have
misinterpreted or been misled by the prosecutor’s comments was eliminated by the jury
instructions the trial court gave in this case.
III.   Denial of New Trial Motion
       Flanigan contends the trial court erred in denying his new trial motion without
holding an evidentiary hearing based on a juror’s declaration alleging that “a fellow juror
injected erroneous law into the deliberations.” Assuming without deciding Flanigan did
not forfeit this contention by failing to raise it below, we reject it on the merits.
       “[W]hen a criminal defendant moves for a new trial based on allegations of jury
misconduct, the trial court has discretion to conduct an evidentiary hearing to determine
the truth of the allegations. We stress, however, that the defendant is not entitled to such
a hearing as a matter of right.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) “‘The
hearing should not be used as a “fishing expedition” to search for possible misconduct,
but should be held only when the defense has come forward with evidence demonstrating
a strong possibility that prejudicial misconduct has occurred. Even [then], an evidentiary
hearing will generally be unnecessary unless the parties’ evidence presents a material
conflict that can only be resolved at such a hearing.’” (People v. Duran (1996) 50
Cal.App.4th 103, 113.)



                                              14.
       “‘We review a trial court’s ruling on a motion for a new trial under a deferential
abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court will not disturb
the ruling absent a manifest and unmistakable abuse of that discretion.”’” (People v.
Thompson (2010) 49 Cal.4th 79, 140.) Such an abuse is not present here.
       The declaration of Juror No. 1, on which the new trial motion was based, did not
demonstrate a strong possibility that prejudicial misconduct occurred as Flanigan
contends. In relevant part, Juror No. 1’s declaration alleged that, after nine jurors voted
to indicate they believed the defense had met its burden of proving the elements of the
necessity defense, Juror No. 10 “told the group that because the group did not
unanimously accept the defense of necessity that the verdict had to be guilty on Count 2.”
       Flanigan contends that Juror No. 10’s alleged statement indicates the juror
committed misconduct by injecting an erroneous statement of law into the jury
deliberations by incorrectly telling his fellow jurors that “a jury must reach a guilty
verdict where jurors fail to reach a unanimous decision on the merits of a defense.”
However, this is simply Flanigan’s interpretation of the alleged statement, and is not
clearly supported by the statement itself. Contrary to Flanigan’s suggestion, Juror No.
10’s statement was not worded as a general legal statement. Rather, it specifically
referred to the jury’s deliberations in this particular case and was not necessarily meant as
a statement of law.
       In light of the fact Flanigan did not dispute that the prosecution’s evidence showed
he was a felon in possession of a firearm, is it very possible that, at the time of Juror
No. 10’s alleged statement, the jurors had already decided that the prosecution had met its
burden of proof on count 2, and that they would therefore have to return a guilty verdict
on count 2 unless they unanimously agreed that Flanigan proved his necessity defense.
Since they apparently were unable to reach such agreement, under this scenario, Juror
No. 10’s alleged statement that the verdict had to be guilty on count 2 would not

                                             15.
necessarily have constituted a misstatement of the law since the jury would have already
had found the prosecution had met its burden of proof on count 2. Thus, Juror No. 10’s
statement could simply have been meant as a comment on how matters stood at that point
in the deliberations and not meant as a statement of law.
       Of course, this is all speculation. Our point is that Flanigan’s argument assumes
Juror No. 10’s alleged statement had one very particular meaning which happens to
supports his juror misconduct claim. However, the actual wording of the statement does
not support a single interpretation and, depending on the context in which it was made,
could have a number of possible meanings.
       In short, we find the evidence Flanigan presented in support of his new trial
motion was insufficient to demonstrate a strong possibility that prejudicial misconduct
occurred in this case. Accordingly, the trial court did not abuse its discretion in denying
Flanigan’s new trial motion without conducting an evidentiary hearing.
IV.    Cumulative Error
       Flanigan contends the cumulative effect of his claims of error is such that his right
to due process was denied and reversal of his convictions is warranted. Having
concluded there were no errors, we conclude there was no cumulative error that deprived
Flanigan of due process. (People v. Vieira (2005) 35 Cal.4th 264, 294.)




                                            16.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                            HILL, P.J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
PEÑA, J.




                                     17.
