Filed 6/23/14 P. v. Fondren CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)


THE PEOPLE,                                                                                  C074294

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM035757)

         v.

MICHAEL RENE FONDREN, JR.,

                   Defendant and Appellant.




         A jury convicted defendant Michael Rene Fondren, Jr., of two counts of assault
with intent to commit sodomy or oral copulation (Pen. Code, § 220, subd. (a)(1)),1 two
counts of false imprisonment by violence (§ 236), misdemeanor loitering (§ 647, subd.
(h)), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The trial court denied
defendant’s motion for a new trial and sentenced him to 12 years in state prison.
         On appeal, defendant contends the trial court erred in failing to grant a new trial
for newly discovered evidence of juror misconduct. We affirm.




1   Undesignated statutory references are to the Penal Code.

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                               FACTS AND PROCEDURE
       The Crimes
       Charles H.
       On the night of June 5, 2012, Jacob E. went to Elvia Guevara’s birthday party at
the home of Adam G. and Charles H. Shortly after 10:00 p.m., defendant approached
Jacob E. and offered him a pound of marijuana. The loud music caused defendant and
Jacob E. to go around the corner to the side of the house.
       Defendant offered to give Jacob E. a pound of marijuana if he let defendant
perform oral sex on him. Jacob E. declined, but defendant said, “C’mon, please.”
Defendant grabbed Jacob E.’s penis twice during the conversation. Jacob E. felt
uncomfortable and suggested they should get back to the party. Not wanting to make a
big scene, Jacob E. just talked to friends when he got to the kitchen. Jacob E. told a few
friends about what happened. Around midnight, he went to Riley’s bar with Guevara and
Charles H. When Jacob E. returned to the party about 30 minutes later, everyone was
upset and Charles H. was crying.
       Charles H. returned home from the bar around 12:15 a.m. He did not know
defendant, but let him stay because he thought defendant knew someone at the party.
Defendant offered Charles H. a pound of marijuana and said he needed to show him
something. He asked Charles H. to follow him and then went into a bedroom, where
defendant closed the door and pushed Charles H. to the bed.
       Charles H. was on his back with his feet touching the floor and defendant standing
between his legs. Defendant touched the skin on Charles H.’s lower stomach. He held
Charles H. on the bed and pushed him back down every time he tried to move.
Defendant offered Charles H. a pound of marijuana for sex, but Charles H. refused.
Charles H. repeatedly told defendant to stop, but defendant kept touching him.
Defendant eventually unbuttoned Charles H.’s shorts and reached for his genitalia.



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Another person entered the bedroom, and Charles H. told defendant, “Get away from me”
and “[d]on’t touch me.” Defendant left the room and was asked to leave the party.
       Charles H. and three other people from the party identified defendant at a
photographic lineup the following day.
       Christopher H.
       Christopher H. was in Chico visiting his brother on the same day as the Charles H.
incident, June 5, 2012. They went to Riley’s bar and then the two walked back to the
brother’s home.
       Christopher H. wanted a lighter, so he left his brother and walked the opposite
direction from the house. He ran into defendant and asked to use his lighter. Defendant
said he had a lighter in his house, put his arm around Christopher H.’s shoulders, and led
him down the street to his house. Upon entering defendant’s house, the two went into
defendant’s bedroom.
       Defendant told Christopher H. to sit on the bed. After he complied, defendant
pushed him down on the bed. Defendant then knelt on the floor between Christopher
H.’s legs, touched him on the chest and on the skin of his stomach, and kissed his
stomach. When defendant tried to remove Christopher H.’s belt, he told defendant to
stop and tried to get up. Defendant offered Christopher H. marijuana to let him finish.
       Christopher H. thought defendant was going to perform oral sex on him. He did
not fight back out of fear that worse things would happen to him. Defendant eventually
let him get up, and then told him to go. Christopher H. left and immediately called 911.
He later helped an officer locate defendant’s house and identified defendant in a field
showup.




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       The Apartment Incidents2
       Around 2:00 a.m. on June 6, 2012, Zachary Glenn arrived home after working a
late shift at a pizzeria. Hearing a knock on the window, Glenn assumed it was his
roommate and walked towards the door. Defendant opened the door before Glenn could
reach it. Defendant tried to force his way into the apartment. He got about halfway
inside the doorway before Glenn forced him out. Glenn then shut the door, locked it, and
called the police.
       An officer contacted Glenn around 2:07 a.m. After getting a description of
defendant, the officer looked through the complex and saw defendant coming out of
another unit, apartment 4. When contacted by the officer, defendant claimed he had
friends in that apartment but they were sleeping. Defendant was detained and the officer
continued his investigation. Glenn later identified defendant in a photographic lineup.
       The officer went to apartment 4 and observed that a screen by the dining area in
the kitchen was removed and the window was open. The officer determined that screens
were removed from two other apartments in the complex.
       Defendant told the officer that he had been barbecuing with his roommate that
night and drank 10 to 12 beers. He walked to a liquor store for cigarettes at one point,
but neither went to a party nor brought Christopher H. to his house. Defendant denied
kissing any men that night, saying it was not his thing. He knew nothing about pushing
Charles H. onto a bed and never entered apartment 4.
       The Defense
       Testifying on his own behalf, defendant said he went to an apartment complex to
find a friend on June 6, 2012. Glenn opened the door and they had a brief conversation.




2 Defendant was charged with two counts of burglary and one count of loitering for this
incident. He was convicted of loitering but acquitted on both burglary counts.

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He did not think that he pushed Glenn. Defendant went to two other apartments to look
for the friend. The doors were open at both apartments.
       Defendant went to a party at Charles H.’s house on May 27 or May 28. He did not
remember any incident with Jacob E. He did not push anyone or get on top of anyone.
He admitted trying to kiss Christopher H.
       The New Trial Motion
       Defendant represented himself at trial. Following the verdict, he submitted a
written motion for a new trial asserting instructional error, insufficient evidence,
prosecutorial misconduct, newly discovered evidence regarding defendant’s blood-
alcohol level on the day of the incidents, and impeachable material found in the recorded
statements of Charles H., Christopher H., and Jacob E..
       At a hearing on the motion, defendant asserted an additional ground for a new
trial, newly discovered evidence of juror misconduct, that the jury foreperson owned the
property where the burglary and loitering charges took place. The evidence in support of
this contention was the testimony of defendant’s investigator, who testified that the
foreperson owned and lived in the apartment complex in question and also owned two
adjacent lots, which also have apartments on them.
       The investigator did not know if the foreperson still owned the property.
According to the investigator, county records showed that a company owned the lot
where the apartment complex was located, and the foreperson was the registered owner
for the fictitious business name for that company. The company currently owned all
three properties, but the investigator did not know when the company first owned them.
The company owned the apartment complex at the time of the incident.
       Defendant argued that the foreperson’s ownership of the properties provided the
foreperson with a vested interest in seeing that defendant did not return to the
community. He claimed that he could not receive a fair trial in light of the foreperson’s
failure to disclose this information.

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       The prosecutor responded to the new claim by stating that whether or not the
foreperson actually owned the property, defendant did not show how a different result
would be probable in the absence of the alleged error in light of the overwhelming
evidence of guilt.
       The trial court found there was no documentary evidence showing the foreperson
in fact owned the property in question. There was also no evidence that the foreperson
knew about owning a company that owned the property. In addition, the court found
there was insufficient evidence that the company in fact owned the property. Finally,
even if the evidence showed that the foreperson owned the property and knew of it, there
was no evidence that a different result was probable since defendant was acquitted of the
burglary charges related to that property. Defendant’s motion was therefore denied.
                                      DISCUSSION
       Defendant contends the trial court abused its discretion in denying his new trial
motion based on newly discovered evidence of juror misconduct. He claims defendant
satisfied two grounds for a new trial, newly discovered evidence, and juror misconduct.
He asserts the records that the foreperson owned the property involved in the charged
burglaries were admissible, the facts establish misconduct, and the misconduct was
prejudicial. We disagree.3



3  We reject the Attorney General’s contention that defendant forfeited the claim by
failing to include it in his written new trial motion. “[W]hile a new trial motion should be
made in writing specifying the grounds [citation], there is no statutory requirement to that
effect, and the motion need only identify the particular ground or grounds on which it is
based.” (People v. Smith (1993) 6 Cal.4th 684, 705 (conc. opn. of Baxter, J.).) Although
the trial court noted that defendant was “sandbagging” the prosecution by bringing the
alleged juror misconduct claim for the first time at the hearing, the People did not ask for
a continuance and were able to respond to defendant’s contention at the hearing. Since
the trial court was able to make a ruling on the merits on defendant’s contention and the
People were not prejudiced, defendant’s failure to include the claim in the written motion
does not forfeit the contention on appeal.

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       A trial court’s decision whether to grant or deny a new trial motion is discretionary
and “ ‘ “will not be disturbed [on appeal] unless a manifest and unmistakable abuse of
discretion clearly appears.” ’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312,
328.) “When a party seeks a new trial based on juror misconduct, the trial court must
determine from admissible evidence whether misconduct occurred and, if it did, whether
the misconduct was prejudicial. [Citation.] Prejudice is presumed where there is
misconduct. This presumption can be rebutted by a showing no prejudice actually
occurred or by a reviewing court’s examination of the entire record to determine whether
there is a reasonable probability of actual harm to the complaining party. [Citation.]”
(People v. Loot (1998) 63 Cal.App.4th 694, 697.)
       Newly discovered evidence and juror misconduct are grounds for a new trial.
(§ 1181, subds. (3), (8).) Although defendant presented the contention under the rubric of
newly discovered evidence, he argued to the trial court that the foreperson’s misconduct
entitled him to a new trial and presented testimony in support of this theory. Since
defendant’s claim relates to factual matters distinct from the crime, his motion is better
treated as based on juror misconduct rather than newly discovered evidence.
(See People v. Posey (2004) 32 Cal.4th 193, 207 [distinguishing new trial motions based
on facts overlapping the crime like insufficient and newly discovered evidence from
those relying factual determinations distinct from the crime like juror misconduct].)
       A person accused of a crime has the constitutional right to have the charges
against him determined by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.;
Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110.) Whether a prospective
juror can be fair and impartial is tested through voir dire. Voir dire examination is
significant because it “ ‘ “serves to protect [a criminal defendant’s right to a fair trial] by
exposing possible biases, both known and unknown, on the part of potential jurors.
Demonstrated bias in the responses to questions on voir dire may result in a juror’s being
excused for cause; hints of bias not sufficient to warrant challenge for cause may assist

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parties in exercising their peremptory challenges. The necessity of truthful answers by
prospective jurors if this process is to serve its purpose is obvious.” [Citation.]’ ”
(People v. Duran (1996) 50 Cal.App.4th 103, 111-112.) When a juror conceals relevant
facts during voir dire examination, that undermines the jury selection process and
constitutes misconduct. (In re Hitchings, supra, 6 Cal.4th at p. 111.)
       We agree with the trial court that defendant failed to present sufficient evidence of
juror misconduct. “[O]rdinarily a trial court does not abuse its discretion in declining to
conduct an evidentiary hearing on the issue of juror misconduct when the evidence
proffered in support constitutes hearsay. [Citations.]” (People v. Dykes (2009)
46 Cal.4th 731, 810.) “Moreover, a trial court does not abuse its discretion in denying a
motion for new trial based upon juror misconduct when the evidence in support
constitutes unsworn hearsay. [Citations.]” (Ibid.) Defendant did not present any
authenticated records from the county recorder’s office establishing the foreperson’s
ownership interest in the apartment complex. Although authenticated public records are
an exception to the hearsay rule (Evid. Code, § 1280), an investigator’s testimony
regarding the alleged contents of a public record is not admissible to prove the public
record’s content.
       Evidence Code section 1523 provides: “(a) Except as otherwise provided by
statute, oral testimony is not admissible to prove the content of a writing. [¶] (b) Oral
testimony of the content of a writing is not made inadmissible by subdivision (a) if the
proponent does not have possession or control of a copy of the writing and the original is
lost or has been destroyed without fraudulent intent on the part of the proponent of the
evidence. [¶] (c) Oral testimony of the content of a writing is not made inadmissible by
subdivision (a) if the proponent does not have possession or control of the original or a
copy of the writing and either of the following conditions is satisfied: [¶] (1) Neither the
writing nor a copy of the writing was reasonably procurable by the proponent by use of
the court’s process or by other available means. [¶] (2) The writing is not closely related

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to the controlling issues and it would be inexpedient to require its production. [¶] (d)
Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if
the writing consists of numerous accounts or other writings that cannot be examined in
court without great loss of time, and the evidence sought from them is only the general
result of the whole.”
       Defendant did not provide at trial or on appeal any reason to depart from the
general rule of inadmissibility regarding oral testimony about a writing’s content. The
investigator’s testimony was therefore incompetent to prove the content of the county
records regarding ownership of the apartment complex. Defendant could have, but did
not, prove ownership of the complex through certified copies of the relevant public
records. (Evid. Code, §§ 1530, 1531.) Since the investigator’s testimony was the only
evidence of juror misconduct, the trial court correctly denied defendant’s motion for a
new trial.
                                      DISPOSITION
       The judgment is affirmed.



                                             BLEASE                    , Acting P. J.


We concur:


             NICHOLSON             , J.


             HOCH                  , J.




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