Filed 4/11/16 P. v. Garcia CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068192

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD256560)

VICTOR MANUEL GARCIA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.



         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Victor Manuel Garcia of crimes involving domestic violence

against the mother of his children, N.P.: sodomy by force (Pen. Code, § 286,

subd. (c)(2)(A)); forcible rape (Pen. Code, § 261, subd. (a)(2)); two counts of inflicting

corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)); and threatening to commit

a crime that would result in death or great bodily injury to N.P. (Pen. Code, § 422). The

crimes occurred in November 2013. On appeal, Garcia challenges (1) the admission of

evidence regarding prior acts of domestic violence; (2) the omission of jury instructions

on mistake of fact regarding consent; and (3) the trial court's denying his request for

jurors' contact information. We conclude Garcia has not established any reversible

errors, and affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       The evidentiary portion of trial began on April 27, 2015, and concluded on April

30, 2015. The next day, the jury returned guilty verdicts on all counts. A summary of the

evidence follows.

       In 2007 or 2008, Garcia was homeless, and N.P. invited him to live with her and

her children from a prior relationship. Her children were Jose C., R.C., and Abraham C.,

ages 20, 18, and 11, respectively, at time of trial. When N.P. became pregnant with her

and Garcia's first child together in 2008, he began abusing her. He hit her and tried to

punch her in the stomach, while saying, "I'll make you lose the baby." N.P. curled up in a

ball to protect her stomach. On another occasion, Garcia headbutted and pushed her into

the bathtub. She continued to be physically and emotionally abused by him throughout



                                             2
their dating relationship. They have two children together, Ethan G. and Carlos G., ages

six and five at time of trial.

       Several witnesses described N.P. as very nice, but relatively "slower," "low

functioning," and/or developmentally delayed. She could read a little bit and had a sixth

grade education. N.P. and Garcia relied on her welfare checks, and he was mostly

unemployed. In addition, they regularly smoked marijuana and methamphetamine

together. Their relationship was plagued by drugs, money, and childcare issues. N.P.'s

children testified that they had witnessed various forms of domestic violence, Garcia

calling N.P. derogatory names ("bitch," "whore," etc.), and him drinking "a lot" of beer.

Jose testified that, while he lived in the house, he had once intervened in an argument

between N.P. and Garcia right before Garcia was going to hit his mother. R.C., who had

lived with them as well, had personally observed Garcia hit, punch, and slap N.P.

       N.P. estimated that she was hit at least three or four times a month, typically in the

arms, legs, and feet, and occasionally on her face. Garcia slapped her, punched her, and

used a "stick that he would use for the dogs" to strike her. The stick was 18 inches long

and four inches in diameter. N.P. and several witnesses testified that Garcia called the

stick a "nigger beater," while he claimed it was called a "jaw breaker." Garcia once used

a broom to hit N.P.'s back, and he had thrown toys at her.

       In September 2008, Garcia punched N.P. in the nose right before she had to walk

Abraham to school. Abraham saw his mother bleeding, swollen, and bruised. At school,

a social worker observed N.P. holding two-week-old baby Ethan, with blood on her face,

a bloody nose, a cut, and a bruised neck. A school police officer said N.P. had "straight

                                              3
eyes" and a "zombie[]like" appearance. A different police officer later observed "red

marks" on N.P.'s neck and a cut on the bridge of her nose. N.P. did not reveal Garcia's

identity to these officers. At trial, she testified that she would not call the police on

Garcia because she lived in fear of him coming back to harm her. Garcia would

frequently threaten to kill or harm N.P.

       Officials became involved in the family's welfare again in October 2010, when

Garcia punched then six-year-old Abraham in the stomach. Abraham's school nurse

testified that Abraham arrived late to school, complained of a "stomachache," and

eventually disclosed that Garcia had punched him for not taking out the trash. Garcia

often abused Abraham for not properly doing chores.

       Over the years, N.P. occasionally confided in her closest friends about Garcia's

abusive behavior. Garcia would break her cell phones, and one time, Garcia ripped up

"every piece" of her clothes and chased her out of the house. Crystal La Faye, N.P.'s

close friend, testified that N.P. would come to Crystal's house when she had been "thrown

out" of her own home by Garcia, and on various occasions, N.P. had told her about being

hit and having her phone destroyed. Colleen Lugo, another close friend, periodically

observed injuries on N.P. Victoria Lucero, N.P.'s former neighbor, had heard Garcia and

N.P. arguing and yelling at each other, and once observed N.P. with a bloody nose.

N.P.'s friends advised her to leave Garcia, but N.P. was scared of him, of further violence

to herself or her children, and of his threats. In addition to threats of killing her, Garcia

would threaten to take Ethan and Carlos away from her and move to Virginia, where

Garcia's mother lived.

                                               4
       By November 2013, N.P. and Garcia's relationship had severely deteriorated, and

things were "very bad." On November 5, 2013, Ethan tearfully reported to his school

teacher that "his dad hits his mom," and "his dad likes to beat up people." Also, Ethan

told his teacher that "sometimes his mom has to leave, but his parents live together

because they are [a] family." Garcia was hitting N.P.'s legs using his stick, punching her

arms, and had thrown a remote control at her face, injuring her jaw. Garcia had also

threatened to beat up Jose and rape R.C. In the same early November timeframe, N.P.

decided and informed Garcia of the fact that she no longer wanted to have sex with him.

Nevertheless, Garcia was forcing her to have sex against her will and escalating his

physical abuse.

       On November 11, 2013, which was Veteran's Day, N.P. testified that she was

angry and "not talking" to Garcia because he had hit her and forced her to have sex with

him the night before. The family went to a park for a barbeque during the day with

Garcia's brother and other family members. N.P. ignored Garcia at the park, and he said

she would "pay for it" later when they got home. Garcia had been drinking and doing

drugs throughout the day. Back at the home after others had left, R.C. stayed for a while.

R.C. observed that Garcia was drinking "more beer after beer," he was "acting like a

monster by being rude, mean, [and] grumpy," and he began getting violent. R.C. further

testified that Garcia threatened to kill N.P. and R.C., he was doing stabbing motions with

a screwdriver, and eventually, he slapped and hit N.P.

       Later, after R.C. left and all the children had fallen asleep, Garcia made N.P. sit

with him on one of the living room couches, and he directed her to take her clothes off.

                                              5
Garcia threw her on the couch, lifted her legs up, and kept trying to stick his penis in her

"butt." He said, "That's the only place where you're a virgin at. You're going to give me

your ass." He also made comments like, "You know you like it, bitch. Let me get this."

N.P. cried, kept yelling "stop" and "get off me," and tried to push him off, but Garcia

responded by slapping N.P. in the face, punching her in the arm, and choking her. Garcia

managed to get his penis in her bottom, he put his penis in her vagina, and he forced her

to suck his penis. N.P. testified that consensual "anal sex" was "never" something that

she and Garcia did as part of their relationship. She did not fight him off during vaginal

sex only because she thought Garcia might leave her alone. He did not leave her alone,

but forced her to perform oral sex. Afterwards, Garcia made N.P. sit on the floor, in a

corner, naked. She sat like that for over an hour, cold, and begging him to be allowed to

go to bed, while he dozed on the couch. By 4:30 a.m., he said, "Bitch, go to sleep," and

she went in the bedroom to lay down.

       Several hours later, after feeding the kids breakfast, Garcia ordered N.P. to "get

the fuck in the room," and said he was going to "put it to [her] butt again." He told her to

remain standing and hold the bed, and he tried to stick his penis in her anus. N.P. started

crying and said "no"; Garcia put his penis in her vagina instead. According to N.P., she

stopped "fighting" and actively resisting him because she did not want to be hit or suffer

a "worse" fate. N.P. eventually went into the bathroom where she cried, prayed, and took

a shower. In N.P.'s mind, Garcia had gone "too far" with anal sex, and she was going to

leave him. She left the house with Carlos as soon as she could, without any of her



                                              6
personal belongings or any specific escape plan. All she thought of that morning was "to

run away and never return."

       On a street corner by a local taco shop, Crystal and Crystal's mother, Mary La

Faye, happened to spot N.P. Crystal testified that she had never seen N.P. in the state she

was in that morning. N.P. was hysterically crying and shaking, and looked like she was

on the verge of collapsing or like "something bad had happened to her." N.P. told Crystal

and Mary about being beaten, raped, sodomized, and forced to perform oral sex on

Garcia. Mary noticed red marks on N.P.'s neck, either from Garcia choking her or

"shoving her into his parts." Crystal and Mary helped N.P. get to a shelter for abused

women. The shelter's social worker as well as a responding police officer confirmed the

report made by N.P., her appearance and demeanor at the time of making the report, and

her expressed fear of coming in contact with Garcia. Furthermore, the officer personally

observed and took photographs of injuries and bruises on N.P.'s body, including her arms

and legs. These photographs were admitted into evidence. N.P. later gave the same

general account of events to a sexual assault nurse examiner, a different social worker,

and a police detective. The detective testified that he believed the incident reported by

N.P. was "life changing for her."

       N.P. voluntarily submitted to a sexual assault examination. The findings of the

exam were consistent with the history provided by N.P. In addition, sperm collected

from N.P.'s cervix and rectum matched Garcia's DNA. Finally, a clinical psychologist,

David Wexler, testified generally about domestic violence and common reasons why

someone will stay with an abuser even though the person is being abused. Dr. Wexler

                                             7
had reviewed N.P.'s case file, and in his opinion, her behavior was consistent with that of

a domestic violence victim.

       Garcia decided to testify at trial in his own defense. He mostly admitted to

physically abusing N.P., Abraham, and his children. Though he tended to minimize the

instances, Garcia admitted punching, slapping, and kicking N.P., as well as using his dog

stick to hit her. Garcia also testified that he had repeatedly lied to child welfare

authorities and to officers who arrested him in November 2013.

       Regarding the charged crimes on November 11, 2013, Garcia testified that he had

punched and kicked N.P. in the early evening because he was frustrated with her silent

treatment that day. He said that N.P. cried and tried to defend herself, but he hit her

again. Eventually, according to Garcia, a few hours went by and they essentially made

up. They then proceeded to have consensual sex "all night," or for about four hours.

Garcia testified that N.P. agreed to all of their sexual activities. He acknowledged they

had never before had anal sex during their relationship. When he suggested it, "she said

if it started to hurt she was going to tell me and I was supposed to get off." When she got

a cramp in her leg, N.P. told him to "get off," which he did about a minute or two later.

Garcia said that N.P. was not crying before, during, or after they had sex, and he denied

making her sit naked in a corner. Likewise, Garcia testified that they had consensual sex

again in the morning. He said that it was not uncommon for him and N.P. to fight, make

up, and have sex. When questioned why he had not originally mentioned the occurrence

of anal sex to police officers even though he had told them about other sex acts, Garcia's

explanation was that "it was none of [the officers'] business." He could not explain why,

                                              8
after seven years of dating, he had thought of asking N.P. to have anal sex with him for

the first time on November 11.

                                       DISCUSSION

                      I. Evidence of Prior Acts of Domestic Violence

       A. Additional Background

       At the start of trial, the People filed motions in limine to admit certain evidence,

including: (1) the testimony of N.P.'s close friends, whom N.P. had made out-of-court

statements to about the charged acts and/or past abuse by Garcia, under Evidence Code

sections 1240 and 1236;1 and (2) Garcia's prior acts of domestic violence under

sections 1109 and 352. The prior acts include the September 2008 bloody nose incident,

recurring beatings and threats against N.P. during their relationship, and the October

2010 physical abuse of Abraham discovered by the school nurse.

       Garcia filed motions in limine to exclude evidence of prior bad acts, child abuse,

and disclosures of alleged abuse. The court ruled that the prior acts involving domestic

violence, child abuse, and disclosures, were admissible. The court engaged in a lengthy

analysis of whether each incident and/or proposed testimony was "domestic violence" as

contemplated under section 1109, and furthermore, whether the evidence would be

admitted under section 352. The court understood that the jurors would be considering

the acts as propensity evidence, and it discussed why each incident or testimony

concerning recurring violence would not be unduly prejudicial, confusing, or result in an


1      All further statutory references are to the Evidence Code unless otherwise
indicated.
                                              9
undue consumption of time. In response to defense counsel's particular objection

concerning the instance of child abuse against Abraham, the court reasoned that the

incident of stomach punching was no more "inflammatory" than the charged acts.

       B. Analysis

       Garcia challenges the trial court's admission of evidence regarding prior acts of

domestic violence against N.P. and Abraham. He argues that portions of witnesses'

testimony were overly general, limited in probative value, repetitive, and inflammatory,

and the trial court did not properly conduct a weighing test under Evidence Code

section 352.

       Section 1109 provides in part: "[I]n a criminal action in which the defendant is

accused of an offense involving domestic violence, evidence of the defendant's

commission of other domestic violence is not made inadmissible by Section 1101 if the

evidence is not inadmissible pursuant to Section 352." Under these statutes, evidence of

past domestic violence is admissible as propensity evidence unless the court determines

that its probative value is "substantially outweighed" by its prejudicial impact. (§ 352;

People v. Cabrera (2007) 152 Cal.App.4th 695, 704 (Cabrera).) We review a challenge

to a trial court's decision to admit such evidence for abuse of discretion. (People v.

Johnson (2010) 185 Cal.App.4th 520, 531.)

       The Legislature has found that in domestic violence cases, evidence of prior acts is

highly probative in demonstrating the propensity of the defendant. (People v. Hoover

(2000) 77 Cal.App.4th 1020, 1027-1028.) " 'The propensity inference is particularly

appropriate in the area of domestic violence because on[]going violence and abuse is the

                                             10
norm in domestic violence cases. Not only is there a great likelihood that any one

battering episode is part of a larger scheme of dominance and control, that scheme

usually escalates in frequency and severity. Without the propensity inference, the

escalating nature of domestic violence is likewise masked.' . . . ." (Ibid., quoting

Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.)

June 25, 1996, pp. 3-4.)

       Admission of propensity evidence is not fundamentally unfair in domestic

violence cases so long as the trial court balances its probative value against the possibility

that it will consume an undue amount of time or create a substantial danger of undue

prejudice, confusion of issues, or misleading the jury. (E.g., Cabrera, supra,

152 Cal.App.4th at p. 704 [citing other California Court of Appeal decisions].)

       The trial court did not abuse its discretion in admitting evidence of past domestic

violence against N.P. and Abraham. The prior acts against N.P. were similar to and led

up to the charged acts, and the totality of Garcia's violent threats and behavior tended to

show his dominance and control over her, as well as the escalating nature of his crimes

against her. Without the testimony of various observers—each of whom was only aware

of certain incidents—we doubt the Legislature's purpose of enacting section 1109 would

have been fulfilled in this case. In that regard, the probative value of N.P.'s friends' and

children's testimony is principally in its cumulative nature. Moreover, the prior acts,

including those perpetrated against N.P.'s children, tended to show the jury that N.P. had

a rational basis to fear Garcia and that she was living in a constant state of terror, which is

the main reason why she had not been able to leave him in the past. He had harmed her

                                              11
and her children to varying degrees, but he was always threatening to do "worse." The

trial court limited Abraham's detailed testimony to a single 2010 incident of being

punched in the stomach, which he personally experienced, and found that the act was not

as serious as the charged acts. The admitted evidence was highly relevant and probative

of the issues in this case.

       Garcia argues that the evidence should have been excluded because none of the

past acts involved sexual acts, he effectively admitted the charges of corporal injury, and

the evidence was not probative to rape and sodomy. These arguments are misplaced.

Garcia pled not guilty to the corporal injury charges, requiring the People to prove each

element of those crimes. The record supports that Garcia consistently lied about, denied,

or minimized, any physical abuse of N.P. Without the testimony of various witnesses, it

is not likely that Garcia would have made any admissions regarding physical abuse. In

addition, the prior acts evidence allowed the jury to see that Garcia's conduct had reached

a new (and higher) level of violence when he sodomized N.P., lending credibility to her

testimony that he had gone "too far." Based on our review of the record, the testimony

did not consume an undue amount of time, and the prosecutor clearly signaled when her

questions related to specific events of November 2013. We agree with the trial court that

none of the prior incidents was more inflammatory than the charged acts, nor would the

jury improperly convict Garcia on the basis of those past acts alone.

       The trial court's admission of prior acts evidence was not an abuse of discretion

and did not result in a fundamentally unfair trial.



                                             12
                II. Jury Instruction on Mistake of Fact Regarding Consent

       A. Additional Background

       The trial court provided the jury with CALCRIM No. 1000 on the elements of

rape, including the meaning of consent, but did not instruct on a reasonable belief of

consent defense. Thus, the following bracketed language of CALCRIM No. 1000 was

omitted: "[The defendant is not guilty of rape if he actually and reasonably believed that

the woman consented to the intercourse [and actually and reasonably believed that she

consented throughout the act of intercourse]. The People have the burden of proving

beyond a reasonable doubt that the defendant did not actually and reasonably believe that

the woman consented. If the People have not met this burden, you must find the

defendant not guilty.]"

       During deliberations, a juror (juror 7) sent out a note, stating in part: "By law, is

consent under duress, "consent," as identified in criteria # 3." "Criteria # 3" referred to

the People's requirement to prove that "[t]he woman did not consent to the intercourse."

Defense counsel renewed her request for an instruction on mistake of fact regarding

consent.

       After hearing the arguments of counsel, the trial court denied Garcia's request.

The court discussed that there was no substantial evidence of "equivocal conduct" that

would have led Garcia to reasonably and in good faith believe that consent existed where

it did not. The court discussed how, according to Garcia, he and N.P. had consensual

"make-up sex"—not that she was consenting out of fear or being beaten. In addition, the

court indicated that the reasonable belief of consent instruction is not required when a

                                             13
defendant's belief is not objectively reasonable. Accordingly, the court responded to the

juror's question by referring the jury back to CALCRIM No. 1000, which states, "To

consent, a woman must act freely and voluntarily and know the nature of the act." The

court also noted that "Duress" is defined separately in CALCRIM No. 1000, and relates

to the manner in which the defendant accomplishes the act of sexual intercourse.

       B. Analysis

       Garcia contends that the trial court erred by not instructing the jury on the defense

of mistake of fact regarding consent. He argues there is sufficient evidence to support his

mistaken belief that N.P. consented to vaginal sex. He points to the jury's note as indicia

that it was struggling on the issue of N.P.'s consent or lack thereof.

       The trial court has a duty to instruct on the reasonable mistake defense only if

there is "substantial evidence of equivocal conduct that would have led a defendant to

reasonably and in good faith believe consent existed where it did not." (People v.

Williams (1992) 4 Cal.4th 354, 362 (Williams); People v. Mayberry (1975) 15 Cal.3d

143, 153-158 (Mayberry).) The so-called Mayberry defense has "two components, one

subjective, and one objective. The subjective component asks whether the defendant

honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual

intercourse. In order to satisfy this component, a defendant must adduce evidence of the

victim's equivocal conduct on the basis of which he erroneously believed there was

consent." (Williams, at pp. 360-361.)

       "In addition, the defendant must satisfy the objective component, which asks

whether the defendant's mistake regarding consent was reasonable under the

                                             14
circumstances. Thus, regardless of how strongly a defendant may subjectively believe a

person has consented to sexual intercourse, that belief must be formed under

circumstances society will tolerate as reasonable in order for the defendant to have

adduced substantial evidence giving rise to a Mayberry instruction." (Williams, supra,

4 Cal.4th at p. 361.)

       We conclude that Garcia failed to satisfy both the subjective and objective

components of a Mayberry defense to rape, and the court correctly declined to give such

an instruction. The record does not contain substantial evidence of equivocal conduct by

N.P. from which Garcia could have mistakenly believed she consented to vaginal sex. If

N.P.'s account of events is believed, then she did not consent to any sexual activities that

night. Moreover, even if Garcia believed she consented to sexual intercourse despite her

yelling, crying, and resistance, then his mistaken belief was not "formed under

circumstances society will tolerate as reasonable." (Williams, supra, 4 Cal.4th at p. 361.)

Finally, if Garcia's testimony is believed, then he and N.P. had consensual sex. The court

did not err in refusing to instruct the jury on mistake of fact regarding consent.

       With respect to the jury's question regarding "consent under duress," the jury

apparently conflated the element of lack of "consent" with the separate element of

whether a defendant accomplishes the act of sexual intercourse through "force, violence,

duress, menace or fear . . . ." (CALCRIM No. 1000, emphasis added.) The court did not

err by referring the jury back to the instruction that separately delineates the elements and

defines those terms.



                                             15
              III. Defense Counsel's Request for Juror Contact Information

       A. Additional Background

       After the verdicts were read, Garcia filed a motion for an order disclosing jurors'

contact information, and attached his counsel's declaration. He argued that he needed

juror information to prepare a motion for new trial. Juror 7 said that several jurors had

reported struggling with the issue of "consent" if Garcia's testimony regarding anal sex

was believed, and in addition, juror 7 "felt 'bullied' " by the other jurors during

deliberations. Garcia's counsel learned this information through postverdict interviews of

several jurors.

       The People opposed Garcia's motion, attaching a declaration of the deputy district

attorney (D.A.) who interviewed the same jurors. The interviews occurred in a hallway

outside the courtroom, where three jurors stayed behind to discuss the case in a group

setting. The D.A.'s declaration indicates that juror 7 explained that it had been more

difficult for her to reach a guilty verdict on the rape count against Garcia, and that there

was some harassment and bullying by other jurors during deliberations. However, juror 7

reached a guilty verdict based on the evidence. Another juror told the interviewing

attorneys about additional pieces of evidence that she believed would have helped the

prosecution's case (e.g., pictures of the inside of N.P.'s home or corroborating text

messages). Another juror was present but did not say much.

       The trial court denied Garcia's motion, finding that he had not made a prima facie

showing of "good cause" to warrant disclosure of the jurors' otherwise sealed contact

information. Specifically, the court discussed that the jury's deliberative processes could

                                              16
not be used to challenge its verdict, and there was not a sufficient showing that

prejudicial misconduct occurred in the form of "overt acts, conditions, [and] events[.]"

       B. Analysis

       Garcia contends that the trial court erred by denying his motion for jurors' contact

information so that he could gather evidence for a motion for new trial on grounds of

instructional error and juror coercion. Garcia argues that the jury's struggle with consent

shows he should have received the mistake of fact regarding consent defense and that

juror 7's statements supported the existence of juror misconduct.

       A defendant must establish "good cause" to support a petition for jurors' contact

information. (Code Civ. Proc., § 237, subd. (b); People v. Carrasco (2008)

163 Cal.App.4th 978, 990 (Carrasco).) Under relevant case law, a defendant must make

" 'a sufficient showing to support a reasonable belief that jury misconduct occurred, that

diligent efforts were made to contact the jurors through other means, and that further

investigation is necessary to provide the court with adequate information to rule on a

motion for new trial.' " (Carrasco, at p. 990, quoting People v. Rhodes (1989)

212 Cal.App.3d 541, 552.) We review a trial court's decision to deny a defendant's

request for disclosure of jurors' contact information under the deferential abuse of

discretion standard. (Carrasco, at p. 991.)

       The trial court did not abuse its discretion in finding that Garcia failed to make the

requisite showing to obtain jurors' contact information. As we discussed, ante, the trial

court properly declined to give a Mayberry instruction. No further information from

jurors is needed on that point. With respect to juror 7's comment that she felt bullied

                                              17
during deliberations, we agree with the trial court's assessment that her comments were

insufficient to support a reasonable belief that jury misconduct occurred. Juror 7 did not

mention that anyone specifically threatened her if she would not vote a certain way, and

she was standing next to two other jurors who could have, but did not, speak up about

any overt acts or coercive statements that could have improperly influenced the verdict.

(See In re Stankewitz (1985) 40 Cal.3d 391, 398.) Indeed, juror 7 affirmed that her

decision to render a guilty verdict was based on the evidence. The trial judge observed

that juror 7 was "weepy" and emotional over the verdicts, and construed her comments to

relate to her mental processes, which would not be admissible evidence to support a

motion for new trial. (§ 1150, subd. (a); see People v. Burgener (2003) 29 Cal.4th 833,

879 [juror's perception of court's comments as "threat" would be inadmissible evidence of

her state of mind, and the court's remarks, viewed as a whole, were not coercive].)

Garcia did not set forth sufficient facts to support a reasonable belief that jury misconduct

occurred.

       The trial court did not abuse its discretion in denying Garcia's request for jurors'

contact information. Because we conclude that the trial court did not err on any grounds

asserted by Garcia, we need not address his contention regarding cumulative errors.




                                             18
                                 DISPOSITION

     The judgment is affirmed.

                                               NARES, J.

WE CONCUR:



HUFFMAN, Acting P.J.



HALLER, J.




                                     19
