Filed 3/25/13 P. v. Valenzuela 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F063436
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF009465A)
                   v.

MARIO VALENZUELA,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Barbara Michel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       Appellant Mario Valenzuela was convicted after jury trial of battery on a prison
guard. (Pen. Code, § 4501.5.)1 Multiple prior strikes and prior prison term allegations
were found true. After the trial court denied appellant‟s new trial motion, it sentenced
him as a third strike offender to 25 years to life imprisonment plus two years.
       Appellant challenges the sufficiency of the evidence supporting the battery
conviction. He argues that the trial court erred by refusing to instruct on the defenses of
accident, unconsciousness and involuntary intoxication. Appellant contends that the trial
court further erred by denying his new trial motion. None of these claims is persuasive.
The judgment will be affirmed.
                                  PROCEDURAL FACTS
       On March 16, 2011, an information was filed charging appellant with battery on a
correctional officer; it was specially alleged that appellant personally inflicted great
bodily injury during the commission of this crime. (§§ 4501.5, 12022.7, subd. (a).) Nine
prior felony convictions and seven prior prison terms were separately alleged. (§§ 667,
subds. (a), (e)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).)
       Appellant pled not guilty and denied the special allegations. A bifurcated jury trial
commenced on May 18, 2011.
       During the morning of May 26, 2011, the trial court made the following
announcement:

               “Mr. Valenzuela is not here. He is being detained in a holding cell
       in the hallway as a result of him bolting from the courtroom, into the
       hallway, and proceeding down the hallway a couple of departments, before
       he, essentially, went to his knees and surrendered. [¶] The jurors were
       outside in the hallway, obviously; so they saw this. And we are going to


1      All statutory references are to the Penal Code unless otherwise specified.



                                               2.
        bring the jurors in, simply to advise them it will be a few minutes before we
        get started.”
        The trial court instructed the jurors to disregard the incident. It individually
questioned the jurors about their ability to follow this instruction and to remain fair and
impartial. Appellant moved for a mistrial based on his misconduct. The court denied the
mistrial motion, finding there was not “any reason to believe that this jury would not be
able to render a fair verdict in this particular case.” Appellant asked the court to
discharge Juror Nos. 2193178, 2233142 and 2216314. It discharged Juror No. 2193178,
but declined to discharge the other two jurors.
        On May 27, 2011, the jury found appellant guilty of battery on a correctional
officer. It found the great bodily injury allegation not true. The trial court sustained six
prior strike allegations (allegation Nos. 2, 3, 5, 8, 9, 10) and three prior prison term
allegations (allegation Nos. 20, 21, 23). It found the rest of the special allegations not
true.
        On August 2, 2011, appellant filed a motion for new trial based on jury
misconduct.
        On August 15, 2011, appellant filed a motion to dismiss his prior strikes in the
interest of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
        On September 27, 2011, the new trial motion and Romero motion were heard and
denied. Immediately thereafter, appellant was sentenced to an indeterminate term of 25
years to life imprisonment plus two2 years. This sentence was ordered to run consecutive
to the sentence he was already serving in Riverside County Superior Court case No.
054754.
        On September 28, 2011, appellant filed a timely notice of appeal.


2     Special allegations Nos. 20 and 21 arose from two prison terms that were served
concurrently.



                                               3.
                 FACTUAL CIRCUMSTANCES OF THE OFFENSE
       On the morning of November 24, 2010, appellant was an inmate at the California
Correctional Facility in Tehachapi. He was the sole occupant of cell No. 204 in housing
unit five. Correctional Officer Michael Cich was retrieving food trays from prisoners
through the food port in each cell. Appellant refused to return his food tray. Cich3
collected the food tray from the adjacent cell and then returned to appellant‟s cell.
Appellant had covered the window on the cell door with paper. Cich asked appellant to
return the food tray. Appellant replied, “I‟m not giving you my tray. Come in and get
it.”
       Correctional Sergeant Julio Hurtado was summoned to appellant‟s cell. Appellant
would not speak to him. Hurtado opened the cell door a few inches and told appellant to
step forward. Appellant did not respond to the directive. Hurtado closed the cell door.
Hurtado told his supervisor, “[W]e needed to do a medical extraction, because there was
no communication whatsoever with [appellant], and I couldn‟t determine his health or
well-being at that moment.”
       A six-member extraction team assembled outside the cell. Hurtado unlocked the
food port. He attempted to communicate with appellant but did not receive any response.
Hurtado tossed a T-16 OC grenade through the food port into the cell. It made a loud
bang and dispensed pepper spray. Appellant did not respond; there was no movement or
sound inside the cell. Hurtado sprayed a MK-9 OC fogger, which dispensed pepper
spray, through the food port into the cell.4 Appellant did not cough or make any noise or

3       Solely to enhance readability correctional officers will be referenced to by their
last names only. No disrespect is intended or implied by the omission of the officers‟
titles.
4      The T-16 OC grenade and the MK-9 OC fogger have similar effects. The user
holds a MK-9 OC fogger and sprays it towards the intended recipient. The user tosses a
T-16 OC grenade.



                                             4.
movement. Hurtado closed the food port and announced on the radio that “we have a
medical emergency in Housing Unit 5.”
       Correctional Officer Donald Smith was the “shieldman” and led five members of
the extraction team into the cell; Hurtado remained outside the cell in the doorway. 5
Team members discovered that, in addition to covering the window on the cell door,
appellant had covered the window on the cell‟s back wall and the ceiling light. Appellant
had draped a blanket across the width of the cell. Blankets and sheets had been tied to
the frame of the bunk bed, enclosing the lower bunk into a tent-like structure. The cell
was dark; the only light came from the open cell door. Appellant was not visible.
       Smith knocked down the blanket that was draped across the cell and “immediately
braced for attack.” He slowly walked towards the back of the cell. Smith tried to remove
the sheets and blankets from the bed frame but could not get them untied. Smith testified
that he told the other officers that he “couldn‟t get the blankets down. And right about
that time the blankets dropped from the left of me. And that‟s when the inmate attacked
me from the [lower] bunk.” Appellant had wrapped both of his hands with torn white
cloth that “looked like wrapping that a boxer would have.” He also had pieces of white
cloth that may have been shirts tied “around his whole face, and he had just like his eyes
showing.”
       Smith testified that appellant rushed from the lower bunk “and headed straight
towards” him. Smith moved forward. They collided. Appellant hit Smith‟s shield with
his upper torso. Smith testified that “[w]hen we first collided, the shield came back and
hit my face, pushed up against my body. And I had to use a lot of force to push him
back.” Appellant continued to push against Smith. Smith had to use a great deal of force


5      The extraction team members were equipped with helmets with face shields, latex
gloves and gas masks.



                                             5.
to push appellant towards the back of the cell. Appellant continued to push against Smith
“in the opposite direction. And also -- I don‟t recall if it was him flailing his arms, but I
was being twisted around a lot. I was struggling to [keep] the shield on him.” Smith
testified that appellant was “pushing against me and using his body, twisting. Just
fighting against me, basically, is what he was doing.” Smith drove appellant back
towards the bunk area. Smith‟s shield got caught on the top bunk and caused Smith to
twist towards the left. Appellant “came out from the bottom of the shield.”
        Smith dropped the shield and faced appellant. Smith testified that appellant
“threw … a right backhand towards me. And I don‟t recall if it struck my face or not.”
Smith “threw two punches” at appellant, grabbed his head and “pulled him down in
between my legs” to control him. Appellant “was flailing his arms.” Smith pushed
appellant towards the window area. The other members of the extraction team “came and
grabbed him and put him on the ground.” Smith “got next to [appellant‟s] shoulder area.
And he was kind of twisting around, still kind of struggling. And I just held his head
down with my right hand.” Cich laid on top of appellant so other officers could place
handcuffs on him. Leg restraints were placed on appellant and he was removed from the
cell.
        A nurse conducted a medical evaluation of appellant. She did not observe any
injuries to appellant‟s eyes. The skin around appellant‟s eyes was not orange, unlike his
front abdominal area which was orange from pepper spray exposure. Appellant had
abrasions to his right forehead, above his right eyebrow and on his right palm. There was
redness on the back of his neck. Appellant did not report any eye injuries or vision
impairment.
        Smith suffered a spiral fracture on his left hand during the cell extraction. Surgery
was performed; a metal plate and some screws were placed in the hand. Smith was
unable to work for four months.



                                              6.
       Appellant did not testify or present any evidence in his defense.
                                       DISCUSSION
I.     The Battery Conviction Is Supported By Substantial Evidence.
       Appellant challenges the sufficiency of the evidence supporting the battery
conviction. He argues there is inadequate proof “that appellant was the actual cause of
the injury to Officer Smith‟s hand” and “that appellant acted willfully in causing the
injury.” We are not persuaded. Appellant‟s evidentiary challenge is premised on the
position that the People were required to prove that appellant willfully injured Smith‟s
hand. This premise is unsound. The crime of battery on a correctional officer does not
require proof of physical harm or intent to inflict injury.
       The crime of battery is defined as “any willful and unlawful use of force or
violence upon the person of another.” (§ 242.) Section 4501.5 provides: “Every person
confined in a state prison of this state who commits a battery upon the person of any
individual who is not himself a person confined therein shall be guilty of a felony ….”
“Section 4501.5 criminalizes a battery committed by a prisoner on a nonprisoner. The
elements of a violation of this section are: (1) The defendant was confined in a state
prison; (2) while confined, the defendant willfully touched the victim in a harmful or
offensive manner; and (3) the victim was not confined in a state prison.” (People v.
Flores (2009) 176 Cal.App.4th 924, 930-931, fn. omitted.)
       “[A]n offensive touching, although it inflicts no bodily harm, may nonetheless
constitute a battery .…” (People v. Myers (1998) 61 Cal.App.4th 328, 335; see, e.g.,
People v. Hamilton (2009) 45 Cal.4th 863, 934 [battery conviction upheld where
defendant spat on a deputy]; People v. Pinholster (1992) 1 Cal.4th 865, 961 [battery
conviction upheld where the defendant prisoner threw a cup of urine in the victim‟s
face].) The term “injury,” as used within the context of the crime of battery, is not




                                              7.
synonymous with physical harm. Our Supreme Court explained this principle in People
v. Rocha (1971) 3 Cal.3d 893:

       “A battery must be contemplated, but only an „injury‟ as that term is used
       with respect to a battery need be intended. „It has long been established,
       both in tort and criminal law, that “the least touching” may constitute
       battery. In other words, force against the person is enough, it need not be
       violent or severe, it need not cause bodily harm or even pain, and it need
       not leave any mark.‟ [Citation.] [¶] „The “violent injury” here mentioned
       is not synonymous with “bodily harm,” but includes any wrongful act
       committed by means of physical force against the person of another, even
       although only the feelings of such person are injured by the act.‟
       [Citation.]” (People v. Rocha, supra, 3 Cal.3d at pp. 899-900, fn. 12; see
       also People v. Myers, supra, 61 Cal.App.4th at p. 335.)
       Also, the crime of battery does not require proof that the defendant intended to
injure the victim. Battery is a general intent crime. (People v. Lara (1996) 44
Cal.App.4th 102, 107 (Lara).) “As with all general intent crimes, „the required mental
state entails only an intent to do the act that causes the harm .…‟ [Citation.] Thus, the
crime of battery requires that the defendant actually intend to commit a „willful and
unlawful use of force or violence upon the person of another.‟ [Citations.] In this
context, the term „willful‟ means „simply a purpose or willingness to commit the act .…‟
[Citation.].” (Id. at p. 107.)
       We have examined the record and conclude there is ample evidence proving that
appellant committed a battery on a correctional officer. Appellant was confined as an
inmate in the California Correctional Facility at Tehachapi. The victim, Smith, was a
correctional officer. Appellant instigated a cell extraction by refusing to comply with
officers‟ directives. Appellant prepared for a confrontation by covering the light sources,
stringing a blanket across the cell, creating a tent-like enclosure around the lower bunk
and wrapping his face and hands in cloth. Appellant was hiding within the enclosure
when the extraction team members entered the cell. Smith testified that appellant rushed
forward and attacked him. Appellant collided with the shield Smith was holding. Smith


                                             8.
testified that appellant was “pushing against me and using his body, twisting. Just
fighting against me, basically, is what he was doing.” Appellant flailed his arms and tried
to punch Smith in the face. Appellant‟s violent attack on Smith constitutes an offensive
touching. His conduct in preparing for the cell extraction, rushing towards and fighting
with Smith proves that the touching was willful.
       For the foregoing reasons, we reject appellant‟s challenge to the sufficiency of the
evidence and uphold the guilty verdict on count 1.
II.    There Was No Instructional Error.
       A.     The trial court properly declined to instruct on accident.
              1. Facts.
       Appellant asked the court to instruct on the defense of accident with CALCRIM
No. 3404. This instruction provides, in pertinent part:

       “[The defendant is not guilty of _________________ <insert crime[s]> if
       (he/she) acted [or failed to act] without the intent required for that crime,
       but acted instead accidentally. You may not find the defendant guilty of
       _________________ <insert crime[s]> unless you are convinced beyond a
       reasonable doubt that (he/she) acted with the required intent.]”
       The court refused to instruct on accident because there was no evidence to support
this defense. It reasoned:

               “But in reviewing the evidence, it‟s a situation where, although the
       light was blocked in the cell and there were chemicals agencies thrown into
       the cell, that certainly could have affected -- along with the lights and
       chemical agents, it could have affected certain individuals, Mr. Valenzuela.
       There is no evidence that it did. In fact, the evidence was to the contrary.

               “Once they got in, there was light coming from the outside. People
       could see each other in the cell. There was nothing that would indicate he
       had anything in his eyes that would somehow hinder him from being able
       to see the direction in which he was moving, or anything of that sort, in the
       course of what took place in the cell, along with the other evidence, is what
       led up to the physical contact; so I‟m going to decline your request. I‟m
       going to reject this special instruction.”


                                            9.
              2.    Refusing to instruct on accident was not erroneous because the
              record does not contain substantial evidence supporting this defense.
       Appellant argues that instruction on accident was required because there was
substantial evidence supporting this defense. He points to testimony that the correctional
officers wore gas masks and that Hurtado tossed a T-16 OC grenade into the cell and then
sprayed a MK-9 OC fogger pepper spray. Appellant also points out that Smith did not
know how his hand became injured. This argument is unconvincing. As will be
explained, the trial court properly declined to instruct on accident because there was no
proof that the chemical agents introduced into the cell adversely affected appellant or any
evidence indicating that appellant‟s contact with Smith was accidental.
       The trial court must instruct on an affirmative defense, either upon request or sua
sponte, whenever the record contains substantial evidence in support of the defense
unless the defense is inconsistent with the defendant‟s theory of the case. (People v.
Salas (2006) 37 Cal.4th 967, 982.) In this context, substantial evidence has been defined
as “evidence sufficient for a reasonable jury to find in favor of the defendant .…” (Ibid.)
If the evidence on a defense is “minimal and insubstantial,” instruction need not be given.
(People v. Flannel (1979) 25 Cal.3d 668, 684.) The trial court‟s ruling is independently
reviewed. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
       The defense of accident or misfortune is based on section 26, which provides, in
relevant part: “All persons are capable of committing crimes except those belonging to
the following classes: [¶]…[¶] … Persons who committed the act or made the omission
charged through misfortune or by accident, when it appears that there was no evil design,
intention, or culpable negligence.” (§ 26.) “The accident defense is a claim that the
defendant acted without forming the mental state necessary to make his actions a crime.”
(People v. Gonzales (1999) 74 Cal.App.4th 382, 390 (Gonzales).)
       Deciding if the trial court erred by refusing to instruct on accident turns on
whether appellant offered evidence sufficient for a reasonable jury to find that his contact


                                             10.
with Smith was accidental. We agree with respondent that the record does not contain
evidence supporting this defense. There was no evidence showing that appellant was
adversely affected by the chemical agents that were introduced into the cell. Appellant
did not cough or otherwise indicate distress. He did not complain of burning eyes or of
any other injury. The nurse who examined appellant did not observe any physical
symptoms typically associated with exposure to pepper spray. Appellant‟s eyes were not
swollen, red or tear stained. Appellant was not coughing or having difficulty breathing.
He was not dizzy or disoriented. Appellant‟s barricade and wrappings succeeded in
protecting him from the chemical agents introduced into the cell.
       There also is no evidence showing that appellant slipped or otherwise accidentally
stumbled into Smith. Smith testified that appellant‟s eyes were not covered by the white
shirt that he had wrapped about his face.6 Smith also testified that appellant lunged
toward him, pushed against him and tried to hit him. Since the crime of battery does not
require proof of injury, the fact that Smith could not exactly pinpoint how the injury
occurred does not support a reasonable inference of accident. Appellant‟s argument that
Smith‟s injury could have arisen accidentally is premised on speculation, not reasonable
inference derived from trial evidence.
       Appellant‟s reliance on Lara, supra, 44 Cal.App.4th 102 and Gonzales, supra, 74
Cal.App.4th 382 is misplaced. Both of these cases are factually inapposite. In Lara, the
victim testified that she grabbed the back of the defendant‟s shirt and he “turned around
to free himself from her grasp and hit her in the nose by accident.” (Lara, supra, 44
Cal.App.4th at p. 106.) In Gonzales, the victim and two of the defendant‟s family
members testified that the victim‟s injuries were caused when she was accidentally struck

6      Hurtado testified that appellant had covered his entire face with a towel.
However, Hurtado did not enter the cell. Smith was close to appellant and was able to
see that appellant‟s eyes were uncovered.



                                            11.
by a bathroom door. (Gonzales, supra, 74 Cal.App.4th at pp. 385-386.) By contrast, in
this case there was undisputed testimony from Smith that appellant rushed towards him
and attacked him. Appellant collided into Smith‟s shield and then forcefully pushed
against Smith. Appellant tried to punch Smith and flailed his arms inside the small cell.
There was no testimony from appellant or anyone else that his contact with Smith was
accidental.
       Accordingly, we conclude that the trial court properly declined to instruct on
accident because the record does not contain substantial evidence supporting this defense.
It necessarily follows that appellant‟s federal constitutional rights to due process and a
fair trial were not infringed by the instructional omission.
      B.     The trial court properly declined to instruct on unconsciousness and
involuntary intoxication.
              1.      Facts.
       Defense counsel requested instruction on involuntary intoxication (CALCRIM No.
3427) and unconsciousness (CALCRIM No. 3425) based on the discharge of chemical
agents into appellant‟s cell.
       The prosecutor argued that the evidence did not support either instruction. She
also argued that involuntary intoxication instruction did not apply because it was
designed to be given only when the intoxication occurred without any fault on the part of
the intoxicated person.
       The trial court refused to instruct on involuntary intoxication, reasoning: “… I
don‟t think there is really enough evidence of this Court‟s giving involuntary intoxication
instruction either. There is really no evidence of the actual state of intoxication, if any,
that there was on Mr. Valenzuela. [¶] In fact, the evidence is essentially to the effect that
he guarded from being intoxicated by virtue of putting the materials over his mouth,
towels up, things of that sort, so that the chemicals couldn‟t get to him.” The court
refused to instruct on unconsciousness because it “wouldn‟t apply unless I was


                                             12.
considering and gave the other instruction. There was some evidence he reached some
level of intoxication.”

             2.    Refusing to instruct on involuntary intoxication and
       unconsciousness was proper because the record does not contain substantial
       evidence supporting this defense.
       As previously discussed, the trial court must instruct on an affirmative defense,
either upon request or sua sponte, whenever the record contains substantial evidence in
support of the defense unless the defense is inconsistent with the defendant‟s theory of
the case. (People v. Salas, supra, 37 Cal.4th at p. 982.) Appellant argues the record
contained substantial evidence supporting the defenses of involuntary intoxication to
unconsciousness. He relies on Hurtado‟s testimony that he introduced pepper spray into
the cell “to disorient [appellant] in case he was okay in there, because it causes irritation
to the eyes.” Appellant argues it was a question for the jury to determine “whether and to
what degree the chemical agents deployed into the cell” affected his mental state. We
disagree. The trial court correctly determined that there was insufficient evidence to
justify instruction on the defenses of involuntary intoxication or unconsciousness.
       The record does not contain any evidence proving that the chemical agents
introduced into appellant‟s cell caused intoxication or unconsciousness. Cich testified
that the effects of MK-9 OC fogger include coughing, sneezing, chest tightness,
sensations of irritation and burning. Cich did not know if the MK-9 OC fogger had an
anesthetic effect. Hurtado testified that a T-16 OC grenade causes coughing. Hurtado
testified that the effects of a T-16 OC grenade are “physical only” and he is not aware of
“any effects other than physical effects.”
       Also, there was evidence showing that appellant avoided the harmful effects of the
chemical agents by covering his face and barricading himself into his bunk behind
blankets and sheets. Appellant did not cough or exhibit any difficulty breathing after the




                                             13.
chemical agents were dispensed into his cell. A nurse examined appellant after the cell
extraction. She did not observe any injuries on appellant other than a few abrasions.
       In sum, there was no evidence in the record indicating that the chemical agents
caused intoxication or unconsciousness and no evidence that appellant was physically or
mentally impaired by the agents. The record does not contain substantial evidence from
which a reasonable jury could have concluded that appellant was either involuntarily
intoxicated or unconscious when the assault occurred. Therefore, the trial court properly
refused to instruct on these defenses. Appellant‟s federal constitutional rights to due
process and a fair trial were not infringed by the instructional omission.7
III.   The New Trial Motion Was Properly Denied.
       A.     Facts.
       On August 2, 2011, appellant filed a motion for new trial based on juror
misconduct. The motion was supported by declarations of Juror Nos. 2 and 12. Both of
these jurors declared that “[a]t no time during deliberations was I convinced beyond a
reasonable doubt that [appellant] was guilty of the charged offenses and/or
enhancements.” Both jurors also averred that they wrote questions to be given to the
judge for further instruction on the law but the foreperson refused to forward the
questions and said that he would not be asking any questions. Juror No. 12 averred that
the foreperson entered the deliberation room and announced that appellant “is already in
prison anyway, so what are the odds that he didn‟t do the battery?” They averred that
when Juror No. 12 said that appellant was not guilty, the foreperson angrily screamed that
“he would not accept a hung jury and we would be here all day if there was no guilty


7     This determination renders moot the Attorney General‟s argument that instruction
on involuntary intoxication was properly denied because a fundamental criterion
underlying this defense is the defendant‟s lack of fault and, in this case, appellant was
blameworthy.



                                             14.
verdict because he would not come back for further deliberations. So find him guilty so
we can go home.” They both averred that the deliberations took place while not all 12
jurors were present. Juror No. 12 averred that appellant‟s status as an inmate and his act
of leaving the courtroom during trial was discussed during deliberations. Juror No. 2
averred that the foreperson and another juror discussed “matters the court ordered to not
be discussed during deliberations.” Both jurors averred that they did not know they could
report the foreperson‟s conduct to the judge. Finally, Juror No. 2 averred that she
suffered a misdemeanor petty theft conviction in 2003 but did not disclose this conviction
during voir dire due to its age.
       The prosecutor opposed the new trial motion and filed evidentiary objections to
portions of the declarations.
       Hearing on the new trial motion was held on September 27, 2011. The trial court
denied the motion in a lengthy oral ruling. The court made findings on each of the
averments contained in the jurors‟ declarations.
       The trial court found that the averments by Juror Nos. 2 and 12 that they never
thought appellant was guilty were inadmissible.
       The trial court admitted the jurors‟ averments that the foreperson refused to
forward their written questions “is something certainly I can consider.” The trial court
found there was no evidence concerning the information that was requested by the jurors
and the jurors did not directly ask the court any questions despite having been provided
with multiple opportunities to do so.
       The trial court found that the foreperson violated an admonition of the court when
he said that appellant left the courtroom because he was guilty. The court gave this event
“very little weight” because appellant “should not be able to profit … by his own
wrongdoing .…”




                                            15.
       The trial court found that averments recounting statements made by the foreperson
concerning appellant‟s guilt were inadmissible because they reflected the foreperson‟s
subjective reasoning process. It found that averments concerning the interactions
between the jurors and foreperson were inadmissible. It found that averments concerning
the foreperson‟s demeanor and his statement that he would not accept a hung jury to be
reflections of heated juror deliberations. Also, “[t]here is no evidence, nor should there
be, as to how it might have impacted other jurors. It‟s simply as to the bias or the
prejudice of the foreperson coming into the deliberations in this particular case.”
       The trial court found the jurors‟ averments that deliberations took place when less
than 12 jurors were present were admissible and “evidence[s] some misconduct.” Yet,
“[t]here is no evidence as to what was discussed or how it might evidence some bias by
any of the jurors .… [T]here was nothing … that it resulted in some bias against the
defendant other than being a violation of the admonition .…”
       The trial court determined that the jurors did not commit misconduct by discussing
appellant‟s status as an inmate because this was an element of the charged crime. Also,
“there is nothing in the declaration that references or demonstrates to the Court that the
discussions as to his status as an inmate reflected some sort of bias that somehow
impacted one or more of the jurors.”
       The trial court found that the jurors were polled after the verdict was read. They
had an opportunity to report the foreperson‟s misconduct or “express any issues they
had” with the verdict.
       Finally, the trial court found that Juror No. 2‟s failure to disclose her prior petty
theft conviction was misconduct. Yet, there was nothing indicating that the failure to
disclose the conviction somehow biased the juror in reaching a decision in the case.
Therefore, “it has very little weight in deciding this motion.”
       The trial court ruled as follows:



                                             16.
           “So ultimately, as I indicated, I think there is a great deal in the
       declarations that‟s not admissible.… [¶]…[¶] … There is still the fact that
       there was misconduct, there was failure to follow admonitions, as I‟ve
       discussed. [¶] But in this particular case, in evaluating all these acts, as we
       have discussed, the admissible acts, the admissible conduct that occurred
       that I can consider for this purpose, but whether it‟s singularly or all
       together, I do not find that there was prejudice in this particular case. [¶] To
       the extent that I could say that there was a likelihood of bias in this
       particular case, that it was substantial, I simply can‟t find that based on the
       facts of the case based on the evidence before me, which is the admissible
       portion of the declarations. [¶] I‟m going to deny the motion for a new trial
       at this time based on those findings.”
       B.      Denial of the new trial motion was proper.
       Appellant argues that the jury misconduct was prejudicial and the trial court erred
by denying the new trial motion. This argument is unconvincing.
               1.       Applicable legal standards.
       “An accused has a constitutional right to trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is „“capable and willing to decide the case solely on the evidence
before it”‟ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) Juror
misconduct occurs when there is a direct violation of the juror‟s oaths, duties or
instruction. (Id. at p. 294.) Misconduct also occurs when a juror receives outside
information concerning the case or shares improper information with other jurors. (Ibid.)
Yet, “with narrow exceptions, evidence that the internal thought processes of one or more
jurors were biased is not admissible to impeach a verdict.” (Ibid.) “[W]here a verdict is
attacked for juror taint, the focus is on whether there is any overt event or circumstance,
„open to [corroboration by] sight, hearing, and the other senses‟ [citation], which suggests
a likelihood that one or more members of the jury were influenced by improper bias.”
(Ibid., fn. omitted.)
       Section 1181 permits the trial court to grant a motion for new trial when the jury
has “been guilty of any misconduct by which a fair and due consideration of the case has


                                             17.
been prevented” (id., subd. 3) or has decided the verdict “by any means other than a fair
expression of opinion on the part of all the jurors” (id., subd. 4). When ruling on a new
trial motion that is based on juror misconduct, the trial court undertakes a three-step
inquiry. First, it must decide if the affidavits supporting the motions are admissible under
Evidence Code section 1150.8 Second, the trial court must determine whether the facts
establish misconduct. Third, the trial court must determine if the misconduct was
prejudicial. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) Juror misconduct
raises a rebuttable presumption of prejudice. (In re Lucas (2004) 33 Cal.4th 682, 696.)
This presumption is rebutted “„if the entire record in the particular case, including the
nature of the misconduct or other event, and the surrounding circumstances, indicates
there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or
more jurors were actually biased against the defendant.‟ [Citation.]” (Ibid.; In re
Hamilton supra, 20 Cal.4th at p. 296.)
       The trial court‟s ruling on a new trial motion is reviewed under the abuse of
discretion standard and will not be reversed unless a manifest and unmistakable abuse of
discretion is clearly apparent. (People v. Bryant, supra, 191 Cal.App.4th at p. 1467.)
When presented with the new trial motion based on the ground of juror misconduct, “the
reviewing court has a constitutional obligation to determine independently whether the
misconduct prevented the complaining party from having a fair trial.” (People v. Nesler
(1997) 16 Cal.4th 561, 582, fn. 5.) The appellate court “accept[s] the trial court‟s


8       Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to statements
made, or conduct, conditions, or events occurring, either within or without the jury room,
of such a character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.”



                                             18.
credibility determinations and findings on questions of historical fact if supported by
substantial evidence. [Citations.] Whether prejudice arose from juror misconduct,
however, is a mixed question of law and fact subject to an appellate court‟s independent
determination. [Citations.]” (Id. at p. 582.)
              2.     Nondisclosure of Juror No. 2’s misdemeanor conviction.
       The trial court found that Juror No. 2‟s failure to disclose her prior petty theft
conviction was misconduct but there was no evidence demonstrating that the omission
reflected juror bias. Therefore, the court gave it “very little weight in deciding this
motion.”
       Appellant argues that Juror No. 2‟s omission “undermined the jury selection
process.” His contention is unavailing. When a juror has concealed information,
prejudice is determined by examining if the omission was made to conceal a biased state
of mind. (See In re Hamilton, supra, 20 Cal.4th at pp. 294-295.) Here, there is nothing
indicating that failure to disclose the prior conviction indicated any bias against appellant.
There is no evidence before us that Juror No. 2 intentionally failed to disclose the 10-
year-old misdemeanor conviction in an effort to conceal a bias or prejudice. The trial
court correctly gave this averment little weight.
              3.     Deliberations with less than 12 jurors present.
       The trial court found that misconduct occurred when deliberations took place
while less than 12 jurors were present. The court then found that the record did not
contain any evidence concerning the substance of these deliberations or any evidence of
bias against appellant. Therefore, the misconduct was not prejudicial.
       We discern no error in the trial court‟s reasoning or result. The declarations by
Juror Nos. 2 and 12 did not contain any information about the content of deliberations
that occurred when less than 12 jurors were present. They set forth nothing more than the
bare fact that deliberations took place when less than 12 jurors were present. There is no



                                             19.
evidence that the jurors deliberated when less than 12 jurors were present because they
were biased against appellant. There is no proof of bias against appellant. We agree with
the trial court that the misconduct was not prejudicial.
              4.       The jury foreperson’s conduct/statements.
       Appellant repeats the averments contained in the jurors‟ declarations about the
foreperson and asserts that these averments proved prejudicial misconduct. This
argument suffers from a fatal defect. As set forth ante in section III.A., the trial court
made an evidentiary ruling that many of the averments concerning the foreperson were
not admissible. Also, the trial court separately ruled on each alleged act of misconduct
and explained why the misconduct was not prejudicial. Appellant‟s briefing failed to
acknowledge that the trial court found portions of the declarations to be inadmissible.
       Appellant did not challenge the trial court‟s evidentiary rulings and did not object
to the trial court‟s rulings on the averments concerning the foreperson. Therefore, any
potential appellate challenges to the trial court‟s ruling on these points “are deemed to
have been waived or abandoned.” (Title Guarantee & Trust Co. v. Fraternal Finance
Co. (1934) 220 Cal. 362, 363.) Appellant bears the burden of raising an issue on appeal
and showing reversible error by legal argument on the point with citation of authorities.
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-770; Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 546 [“it is not this court‟s function to serve as
… backup appellate counsel”].) We reject appellant‟s perfunctory and generalized claim
that the foreperson committed prejudicial misconduct as insufficiently undeveloped.
(People v. Williams (1997) 16 Cal.4th 153, 206; People v. Rodrigues (1994) 8 Cal.4th
1060, 1116, fn. 20.)
       We have independently reviewed the trial court‟s rulings concerning averments
about the jury foreperson. The trial court properly determined that the foreperson
engaged in misconduct in two respects: (1) by refusing to relay jury questions to the



                                             20.
court; and (2) by saying to other jurors that appellant left the courtroom because he was
guilty. We agree with the trial court that this misconduct was not prejudicial.
       The record does not support a substantial likelihood of prejudice against appellant.
The jurors did not identify the nature of the questions that the foreman refused to relay to
the court. The trial court instructed the jurors that any questions could be submitted to
the court in writing (CALCRIM No. 3550) and Juror Nos. 2 and 12 failed to take
advantage of this opportunity. Without knowing the content of the questions, we cannot
find that the foreperson‟s refusal to relay the questions to the trial court was the product
of a bias against appellant.
       We agree with the trial court that appellant is not entitled to a new trial because the
foreperson improperly referenced appellant‟s unauthorized flight from the courtroom as
proof of guilt. The trial court reasoned that appellant “should not be able to profit … by
his own wrongdoing.” In In re Hamilton, supra, 20 Cal.4th 273, our Supreme Court
wrote that a defendant can never overturn a verdict by instigating an incident that
influences the jurors, as follows: “At the outset, we question whether a convicted person
can ever overturn the verdict on grounds that persons acting in his behalf deliberately
sought to influence the jury. Certainly no such claim could ever be valid where the
accused himself had instigated the incident; a party cannot profit by his or her own
wrongdoing.” (Id. at p. 305.) Appellant cannot flee from the courtroom and then claim
reversible error because a juror mentioned his wrongful conduct during deliberations.
       This court has independently reviewed the record as a mixed question of law and
fact. We conclude the trial court did not abuse its discretion when it determined that the
irregularity that occurred in this case was not prejudicial. The standard we apply “is a
pragmatic one, mindful of the „day-to-day realities of courtroom life‟ [citation] .…” (In
re Hamilton, supra, 20 Cal.4th at p. 296.) In this case, the presumption of prejudice was
sufficiently rebutted. The entire record, including the nature of the misconduct and the



                                             21.
surrounding circumstances, indicates there is not a substantial likelihood that one or more
of the jurors were actually biased against appellant. (Ibid.) Therefore, we hold that the
new trial motion was properly denied.
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                      LEVY, Acting P.J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
FRANSON, J.




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