Filed 4/17/13 P. v. Burchett CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E053584

v.                                                                       (Super.Ct.No. RIF148998)

LORI ANN BURCHETT,                                                       ORDER MODIFYING OPINION
                                                                         AND DENYING PETITION FOR
         Defendant and Appellant.                                        REHEARING

                                                                         [NO CHANGE IN JUDGMENT]



THE COURT

         The petition for rehearing filed on April 2, 2013, is denied. The opinion filed in

this matter on March 19, 2013, is modified as follows:

         Remove footnote No. 1 on page 2.

         On page 14, preceding section 3, add:

         Defendant also contends the trial court not only had a sua sponte duty to give the

second optional paragraph in CALCRIM No. 3450, but also that the trial court had a sua

sponte duty to modify the instruction in order to explain the relationship between

                                                             1
defendant’s use of marijuana and her bipolar disorder. “‘A trial court has no sua sponte

duty to revise or improve upon an accurate statement of law without a request from

counsel [citation], and failure to request clarification of an otherwise correct instruction

forfeits the claim of error for purposes of appeal . . . .’ [Citation.]” (People v. Whalen

(2013) 56 Cal.4th 1, 81-82.) The optional paragraph in question accurately states the law.

“If defendant believed the instruction required elaboration or clarification, [s]he was

obliged to request such elaboration or clarification in the trial court.” (Id. at p. 82.)

       We also reject defendant’s alternate claim that trial counsel was ineffective for

failing to request the modification. The trial court instructed the jury that, “Addiction to

or abuse of drugs or intoxicants by itself does not qualify as legal insanity.” (Italics

added.) Although not as clear as defendant would have liked, the jury would nevertheless

understand from the emphasized language that defendant’s marijuana use could be

considered, along with evidence that defendant suffered a mental disease or defect, such

as bipolor disorder, that was not the result of her voluntary use of drugs, in determining

defendant’s sanity at the time of the crimes. Therefore, failure to request the

modification was not prejudicial. (People v. Dennis (1998) 17 Cal.4th 468, 540-541,

citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668 [ineffective

assistance of counsel requires both deficient performance and resulting prejudice].)




                                               2
      These modifications do not change the judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                        McKINSTER
                                                                    Acting P.J.
We concur:


MILLER
                        J.


CODRINGTON
                        J.




                                         3
1Filed 3/19/13 P. v. Burchett CA4/2 (unmodified version)



                      NOT TO BE PUBLISHED IN 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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E053584

v.                                                                       (Super.Ct.No. RIF148998)

LORI ANN BURCHETT,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.

Affirmed.

         Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and

Appellant.




1



                                                             1
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S.

White, and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

       Defendant and appellant Lori Ann Burchett (defendant) appeals from the judgment

entered after a jury found her guilty of the first degree murder of her 18-month-old son,

Garrison, and rejected her defense that she was legally insane at the time of the killing.

Defendant contends, first, that she proved she was legally insane by a preponderance of

the evidence and, therefore, the jury erred in rejecting that defense. Next, defendant

contends the trial court incorrectly instructed the jury on the defense of insanity. Finally,

defendant contends two jurors engaged in misconduct when they communicated with

each other about the case during the sanity phase of the trial and, therefore, the trial court

abused its discretion when it declined to dismiss the jurors in question. We conclude no

error occurred, and we will affirm the judgment.2

                                           FACTS

       The facts of the underlying crime are undisputed. At trial, defendant conceded

that she had killed her son, Garrison, then 18 months old, on the morning of February 23,

2009, by hitting the child on the head with a heavy gold cup and then stabbing him

several times in the abdomen with an arrow defendant had removed from an art object

hanging on the wall in her bedroom. Defendant, who did not appear in court before the


       2 Defendant also filed a petition for writ of habeas corpus in this court on August
10, 2012. (Case No. E055510.) The petition will be decided by separate order.


                                              2
jury during either the guilt or sanity phases of trial, contended the killing was not

premeditated. Defendant also claimed that she was legally insane at the time she killed

her son. Both psychiatrists who evaluated defendant testified at the sanity phase of the

trial that at the time she killed Garrison, defendant was in the throes of a psychotic break.

We will recount that evidence in detail in our discussion of defendant’s challenge to the

jury’s verdict finding her sane.

       During the guilt phase of the trial, defendant’s 15-year-old son, Nick,3 testified

that on Sunday, February 22, 2009, he had stayed overnight with defendant (his mother),

Greg, Sr., (defendant’s current husband; hereafter Greg Sr.), and their two sons, Greg, Jr.,

(five years old; hereafter Greg Jr.) and Garrison (18 months old). Nick had slept on the

couch. When he awoke on the morning of February 23, 2009, defendant immediately

accused Nick of smoking crack because she had smelled it on his keys. Nick denied the

accusation and was upset because defendant had made that same accusation two other

times over the weekend. Greg Sr., a biology professor at Riverside Community College,

had gone to work and had taken Greg Jr. to day care by the time Nick woke up.

       While defendant washed dishes, Nick played with Garrison. Defendant then sat

down at the dining table to do paperwork. When she stood up, Nick told her that she had

blood running down her leg. Defendant said she knew and asked Nick to watch Garrison

while she took a shower. Although she had asked Nick to watch Garrison, defendant

took the infant with her into the bedroom.

       3   Nick is defendant’s son from a previous marriage.


                                              3
       Nick watched a movie. After about 45 minutes, he leaned into defendant’s

bedroom and asked if he could come in. Defendant said no, she would be out in a

minute. Nick heard water running in the shower and could tell from the sound of

defendant’s voice that she was in the bathroom. At some point, Nick heard what sounded

like a hit or a thump from a fall, but it was not significant enough for him to investigate.

Nick asked defendant again whether he could come into the bedroom about 15 to 30

minutes after making the first request. Again, defendant said she would be out in a

minute. Nick still heard water running in the shower.

       Nick got the feeling something was not right. He walked into defendant’s

bedroom, this time without asking permission. He saw blood on the floor. Nick found

Garrison on the bed, his body completely covered by a blanket except for one foot. Nick

lifted the blanket and saw Garrison’s body, bloodied and bruised; the infant’s intestines

were extruding from his belly button. On the bed, there was a gold cup that had dried

blood on it. There was blood on the bedsheets.

       Nick started to scream and pounded on the bathroom door. He could hear the

shower water running. Defendant ran out of the bathroom, naked. Her face and lips were

bluish-purple. When Nick asked defendant what had happened, she told him “everything

is fine” and that she had “set him free.” Defendant seemed angry at first and then calmed

down. She told Nick that she had to pick one of his brothers or one of the three boys.

Defendant got her cell phone, looked at it for a minute, and then told Nick she would die

if he did not leave her alone. Defendant told Nick not to talk to her; she went back into



                                              4
the bathroom and closed the door. When Nick tried to talk with defendant, she told him

to leave her alone.

       Not knowing what to do, and afraid to call the police, Nick waited until his

stepfather, Greg Sr., returned home that evening with Greg Jr. Nick did not tell Greg Sr.

what had happened. Greg Sr. knew that defendant could be moody, and it was best to

leave her alone at those times. That morning, defendant and Greg Sr. had a disagreement

about whether Garrison should go to day care: Greg Sr. wanted him to go, but defendant

wanted the child to stay home with her. Greg Sr. gave in. Before he left the house to go

to work, he put Garrison in bed with defendant. Although he was surprised defendant

had not come out of the bedroom to greet Greg Jr., Greg Sr. made dinner and then left

around 9:00 p.m. to see a movie. When Greg Sr. returned to the house around 11:00

p.m., he asked Nick what had happened, because the boy looked very sad. When Nick

said he thought “Mom did something bad” and that he thought she had hurt Garrison,

Greg Sr. went into the bedroom where he found his infant son’s body.

       Greg Sr. banged on the bathroom door. When defendant did not come out, he

used a screwdriver to pick the door lock. The bathroom was dark, and water was running

in the shower. When Greg Sr. turned on a light, defendant’s hand hit the glass shower

door from inside. Greg Sr. opened the shower door and found defendant sitting on a

bench under the running water. When he asked defendant what had happened, she gave

him an emotionless, cold stare. Then with a very slow, methodical movement, defendant

closed the shower door. According to Greg Sr., defendant’s stare was a “cold, dead, evil



                                            5
look.” Greg Sr. called 911. He also called Nick’s father, who took Nick and Greg Jr. to

his home.

       When the police arrived, defendant was still in the shower, where she had been for

nearly nine hours. According to Officer Adcox, when he opened the shower door,

defendant tried to close it and would not get out because she said she needed to be alone.

Officer Adcox described defendant as having a “thousand yard” stare; “she just was

looking right through me, like no-one-was-home type thing.” After about a minute,

defendant complied with the officer’s directive that she get out of the shower. When

Officer Adcox handed defendant a robe, she tried to grab his gun. Officer Adcox trapped

defendant’s hands and placed her in a modified choke hold until she went limp and could

be handcuffed. Defendant again tried to grab Officer Adcox’s gun after she was in

handcuffs. As the police escorted her from the house and to a police car, defendant said

that her husband had nothing to do with Garrison’s death.

       According to the forensic pathologist who conducted the autopsy, Garrison’s skull

was fractured on the left side of his head. The skin over the fractured area of the skull

was bruised and had an imprint consistent with the gold cup or chalice found near the

infant’s body. Garrison also had multiple stab wounds in his abdomen. The pathologist

removed an arrowhead from one of those wounds. Nine puncture wounds on Garrison’s

back corresponded with the stab wounds on his abdomen. In the pathologist’s opinion,

Garrison died as a result of the combined injuries.




                                             6
       Additional facts will be recounted below as pertinent to our resolution of the

issues defendant raises in this appeal.

                                          DISCUSSION

                                              1.

     SUFFICIENCY OF THE EVIDENCE TO SUPPORT SANITY VERDICT

       The jury found defendant guilty of both first degree murder and assault on a child

resulting in death. In the sanity phase of the trial, both expert witnesses agreed defendant

was legally insane at the time of the killing, but Dr. Oshrin, the psychiatrist retained by

the trial court, expressed the opinion that defendant’s psychosis was the result of her

chronic use of marijuana. Defendant’s expert witness, Dr. Resnick, initially formed the

opinion that defendant suffered from a psychosis not otherwise specified that was marked

by grandiose and paranoid delusions. Shortly before he testified at trial, Dr. Resnick

added a diagnosis of bipolar disorder, which he believed defendant had suffered from

most of her adult life. The jury found defendant was sane at the time of the killing, thus

presumably relying on Dr. Oshrin’s opinion, or at the very least the evidence regarding

her marijuana use, because, as the trial court instructed the jury, the defense of insanity is

not available if the defendant’s mental disease or defect or temporary mental condition is

the result of voluntary drug use. (See Pen. Code, § 25.5; CALCRIM No. 3450.)

       Defendant contends in this appeal that she proved by a preponderance of the

evidence that she was legally insane at the time she killed Garrison. Defendant further

contends, because she had the burden of proof the standard that applies to review the



                                              7
sufficiency of the evidence is whether, as a matter of law, the jury could not reasonably

have rejected the evidence of insanity. We do not share defendant’s view regarding the

standard of review.

       Defendant bases her claim regarding the standard of review on People v. Skinner

(1986) 185 Cal.App.3d 1050 (Skinner), in which the trier of fact, in that case the court,

rejected the defendant’s insanity defense and found the defendant sane. The defendant

challenged that finding on appeal. In addressing the issue our colleagues in Division 3 of

the First District Court of Appeal stated, “Because the burden was on the defense to show

by a preponderance of the evidence that [defendant] was insane, before we can overturn

the trier of fact’s finding to the contrary, we must find as a matter of law that the [trier of

fact] could not reasonably reject the evidence of insanity.” (Id. at p. 1059.) To support

that statement, the Skinner court cited People v. Drew (1978) 22 Cal.3d 333 (Drew), in

which the prosecution had not presented any evidence during the sanity trial but the jury

nevertheless found the defendant sane. (Id. at p. 351.) Recognizing that the defendant

has the burden of proof on the issue of sanity, the Supreme Court in Drew observed, “[I]f

neither party presents credible evidence on that issue, the jury must find [the defendant]

sane. Thus the question on appeal is not so much the substantiality of the evidence

favoring the jury’s finding as whether the evidence contrary to that finding is of such

weight and character that the jury could not reasonably reject it.” (Ibid.)

       Contrary to the Skinner court’s apparent view, the Supreme Court did not create a

different test in Drew for determining the sufficiency of the evidence to support a sanity



                                               8
finding. Instead, it explained how, when the prosecution does not present any evidence

on the issue of sanity, a jury nevertheless could find the defendant sane: The jury could

reasonably reject the defendant’s evidence of insanity. When, as in this case, both sides

present evidence on the issue of sanity, appellate review of the jury’s verdict or finding

on that issue is subject to the same standard applicable to the jury’s resolution of any

issue involving conflicting evidence—we review the record to determine whether the

verdict or finding is supported by any credible, substantial evidence. (See People v.

Belcher (1969) 269 Cal.App.2d 215, 219-220.)

       In the sanity phase of this case, the prosecution presented evidence to show

defendant’s psychosis on the day she killed Garrison was the result of her having

voluntarily smoked marijuana on a regular basis for the better part of the preceding year.

Defendant’s husband, Greg Sr., testified that defendant had obtained a medical marijuana

prescription in May 2008. After she obtained the prescription, defendant’s marijuana use

increased and by the time she killed Garrison, defendant was smoking marijuana daily.

She consumed, on average, an ounce of marijuana every two to three days, an ounce

being equivalent to eight “joints.” Defendant ingested the drug, smoked it directly, and

inhaled the smoke through a vaporizer device. A toxicologist testified that blood

collected from defendant on February 25, 2009, at 6:00 p.m., nearly 41 hours after

defendant was taken into custody, tested positive for THC, the psychoactive ingredient in

marijuana.




                                              9
       Based on the evidence of defendant’s marijuana use, the jury could find she was

sane at the time of the killing because the defense of insanity is not available to a person

whose psychosis results from the voluntary use of drugs. In short, we are unable to say in

this case that the prosecution’s evidence was insufficient as a matter of law to support the

jury’s sanity finding.

       In reaching this conclusion, we acknowledge the apparent weaknesses in the

testimony of Dr. Oshrin. As defendant points out, Dr. Oshrin spent only one hour 30

minutes with defendant, whereas her expert witness, Dr. Resnick, conducted an

evaluation of defendant that lasted seven hours 40 minutes.4 Dr. Oshrin could not recall

whether he had read any of defendant’s medical records, although he had read the

voluminous police reports as well as the letters defendant had written. Dr. Resnick, on

the other hand, had reviewed defendant’s medical and mental history, beginning with the

medical records of Dr. Redder-Haga, a family physician, whom defendant consulted in

November 2007 regarding knee pain as well as anxiety and anger issues, through the

records of Dr. Reantaso, a psychiatrist who treated defendant on February 25, 2009, when


       4  In that interview, defendant acknowledged, among other things, that she had
always been moody, irritable, angry, and that she also had bouts of depression. But on
February 3, 2009, defendant had what she described as a religious epiphany after a yoga
class and as a result believed that God was directing his attention to her. Defendant
believed God was talking to her through songs played on a radio station as well as
through commercials. Defendant wrote the events down on a scroll. Defendant believed
her actions were being directed by God. In the morning of the day she killed Garrison,
defendant had interpreted a pattern made by her menstrual blood as a command from God
to kill her two youngest children. Before she killed Garrison, defendant conducted a
computer search for cruise tickets she could buy in order to “gain safe passage.”


                                             10
she was transferred from the jail to a hospital for psychiatric treatment. Dr. Oshrin also

acknowledged that marijuana induced psychosis is uncommon, but he nevertheless saw

one or two cases each year.

       The purported weaknesses do not compel a conclusion, as a matter of law, that

Dr. Oshrin’s testimony is not credible and, therefore, does not support the jury’s sanity

finding. The jury was aware of the differences between Dr. Resnick and Dr. Oshrin, not

only in background, education, and experience, but also in the basis for their respective

opinions. Despite those differences, the jury nevertheless could believe Dr. Oshrin’s

opinion that defendant suffered from a marijuana induced psychosis as a result of which

the insanity defense was not available to her.

       For the reasons discussed, we must reject defendant’s first claim of error in this

appeal.

                                             2.

                      INSTRUCTION ON INSANITY DEFENSE

       Defendant contends the trial court’s instructions to the jury were incorrect, or at

least incomplete, because the trial court only gave the first paragraph of CALCRIM

No. 3450, when it should have given both paragraphs. Once again, we disagree.

       The trial court instructed the jury according to CALCRIM No. 3450 that defendant

has the burden to prove by a preponderance of the evidence, i.e., that it is more likely

than not, that she was legally insane at the time she committed the crimes. “The

defendant was legally insane if: [¶] 1. When she committed the crimes she had a mental



                                             11
disease or defect, and [¶] 2. Because of that disease or defect, she did not know or

understand the nature and quality of her act or did not know or understand that her act

was morally or legally wrong. [¶] None of the following qualify as a mental disease or

defect for purposes of an insanity defense: Personality disorder, adjustment disorder,

seizure disorder, or an abnormality of personality or character made apparent only by a

series of criminal or antisocial acts.”

        CALCRIM No. 3450 also includes two optional paragraphs that apply when there

is evidence of drug or alcohol use. The trial court instructed the jury according to the

first optional paragraph as follows: “Special rules apply to an insanity defense involving

drugs or alcohol. Addiction to or abuse of drugs or intoxicants by itself does not qualify

as legal insanity. This is true even if the intoxicants cause organic brain damage or a

settled mental disease or defect that lasts after the immediate effects of the intoxicants

have worn off. Likewise, a temporary mental condition caused by the recent use of drugs

or intoxicants is not legal insanity.”

        The trial court did not give the second optional paragraph in CALCRIM No. 3450,

which states: “If the defendant suffered from a settled mental disease or defect caused by

the long-term use of drugs or intoxicants, that settled mental disease or defect combined

with another mental disease or defect may qualify as legal insanity. A settled mental

disease or defect is one that remains after the effect of the drugs or intoxicants has worn

off.”




                                             12
       The trial court did not instruct the jury according to the second paragraph because

defense counsel told the trial court, when asked, that she was not requesting the second

paragraph be included in the jury instruction.5 On appeal, defendant now contends the

trial court should have given both paragraphs of the instruction and that failure to do so

was prejudicial.

       Although we are inclined to agree with the Attorney General that if error occurred

it was invited, we will not discuss that issue further. In our view, the evidence did not

support giving the second quoted paragraph because there was no evidence that defendant

suffered from “a settled mental disease or defect caused by the long-term use of drugs.”

At trial, defendant presented evidence to show that she was bipolar, a mental disease

from which she claimed to have suffered for many years before she was actually

diagnosed in February 2009. There was no evidence presented at trial to show that in

addition to being bipolar defendant also had a settled mental disease brought on by her

use of marijuana. Because there was no evidence to support instructing the jury

according to the second bracketed paragraph, we must reject defendant’s claim that the

trial court erred in failing to include that paragraph in its instruction to the jury.

       For this same reason, i.e., the absence of evidence to support giving the

instruction, we must also reject defendant’s alternate assertion that she was denied her

state and federal constitutional right to the effective assistance of counsel as a result of


       5   Defense counsel had objected to including either of the optional paragraphs in
the trial court’s jury instruction.


                                               13
trial counsel objecting to the second bracketed paragraph. In short, and simply stated, the

evidence did not warrant instructing the jury according to the legal principle set out in the

second bracketed paragraph in CALCRIM No. 3450.

                                             3.

                            JUROR MISCONDUCT CLAIM

       Defendant contends the trial court erred when it concluded that two jurors had not

committed misconduct by communicating with each other during trial. We disagree.

       The pertinent facts are not in dispute. When court recessed for the day on

February 1, 2011, defense counsel reported that Jurors Nos. 10 and 11 had been

communicating with each other during testimony by looking at each other and nodding

their heads as if to say, “‘Told you so.’” It also looked as if Juror No. 10 had written

something on his notepad, which he then showed to Juror No. 11. Defense counsel had

asked the bailiff to keep an eye on the two jurors. The bailiff confirmed what defense

counsel had observed—on more than one occasion during the testimony of the defense

expert witness Juror No. 10 wrote on his pad, showed what he had written to Juror No.

11, and then the two exchanged looks and nodded their heads. The trial court, with the

concurrence of the attorneys, agreed to speak with the two jurors.

       The next morning, the trial court first questioned defense investigator Elia Joseph,

who testified that although she had not seen them interact the previous day, on another

day during the testimony of Dr. Reantaso, she twice saw Juror No. 10 write something

after which he laughed or smiled, and then pointed out what he had written to Juror



                                             14
No. 11. According to Investigator Joseph, the first time Juror No. 11 seemed reluctant to

look, but the second time she leaned over and read what Juror No. 10 had written and

then smiled and kind of concurred.

       Defense counsel told the trial court that the previous day when the prosecutor

asked a question about the comment Nick had made regarding defendant having to

choose one of her children, Juror No. 10 “kind of lit up. And they looked at each other,

nodded their head[s] with just a smiling, as if a point had been made that they had

discussed. He [Juror No. 10] wrote on his pad. Leaned it over to her [Juror No. 11].

And she kind of smiled or had a quizzical look on her face regarding whatever it was they

were discussing.” That is when defense counsel asked the deputy to keep an eye on the

two jurors.

       The trial court then questioned Juror No. 11. The trial court explained it had come

to the court’s “attention that on possibly two occasions, one when Dr. Reantaso was

testifying and one occasion yesterday when Dr. Resnick was testifying, that you and

Juror No. 10 may have been communicating about the testimony. The information that I

have is that when Dr. Reantaso was testifying, [Juror] No. 10 wrote something down on

his notebook and showed it to you. And then the two of you laughed about it or smiled,

reacted. And then yesterday when Dr. Resnick was testifying, sometime near the end of

the day, again Juror No. 10 wrote something down on his notebook. He also looked at

you and gestured in a way. The information I have is that the gesture was sort of like,

see, this is what we talked about or, see, this is what we said. And it appeared that there



                                             15
had been a point made based on maybe a discussion that you had during deliberation. So

I’m concerned about that. And I wanted to ask you about your side of this and what you

saw.”

        When the trial court asked specifically whether Juror No. 11 and Juror No. 10 had

communicated at all during the testimony of Dr. Reantaso, Juror No. 11 answered,

“Not—no.” Juror No. 11 also denied that Juror No. 10 had shown her anything he had

written in his notebook or that they had communicated in any way about the testimony of

Dr. Reantaso. According to Juror No. 11, “All he said was he was hot. But nothing

about a case.” When the trial court asked about the previous day and whether she and

Juror No. 10 were communicating with each other during the testimony of Dr. Resnick

“when there was some discussion about parents not liking their kids,” Juror No. 11 said,

“No.” Juror No. 11 also denied that she had communicated with Juror No. 10 about the

facts of the case except when they were in deliberations. When asked if Juror No. 10 had

written anything in his notebook and shown it to her, Juror No. 11 said, “Nothing specific

that I remember.”

        After conferring with counsel, the trial court told Juror No. 11 that other people in

the courtroom had reported that she and Juror No. 10 had been communicating with each

other by “gesturing, smiling, shaking your head.” Juror No. 11 answered, “Most of the

time it’s not—I don’t look at the notebooks. He fidgets a lot with his legs because he has

long legs. So I’m just looking at his legs. He put them in the cubbyhole. He takes them

out. He’s tall so he gets uncomfortable. So that’s what I looked at, not his lap or



                                              16
anything like that. So they—might have been looking at something wrong, but has

nothing to do with what he’s writing but how he’s moving his legs around in the

cubbyholes and under the cubbyholes.” Before letting Juror No. 11 go, the trial court

asked if she could continue to be fair and impartial in the case. Juror No. 11 said, “Yes, I

think I can.”

       The trial court then questioned Juror No. 10, who was the foreperson in the guilt

phase of the trial. As she had with Juror No. 11, the trial court explained to Juror No. 10

it had come to the court’s attention that during Dr. Reantaso’s testimony on Monday, and

then again the previous day during questioning of Dr. Resnick that “you and Juror No. 11

may have been communicating or gesturing regarding the testimony. Specifically

yesterday afternoon there was some testimony regarding Nick and Nick’s statement

during his testimony that [defendant]—his mom told him she had to pick one of them.

And the information that I have from people in the courtroom was that at that point, you

may have been writing something down in your notebook and showing it to No. 11 or

communicating about the testimony.” The trial court then asked whether Juror No. 10

remembered “having any kind of communication with [Juror] No. 11” during the

testimony of Dr. Reantaso “regarding that testimony, either gesturing to her or smiling to

her, or writing anything down at all?” Juror No. 10 answered, “Well, yeah, absolutely, I

write. If you look at my flip chart, there’s a lot of notes in there.” Juror No. 10 then said

“[N]o, there was not any gesturing between us or, you know—I mean, people are reading

what I’m writing, I’m not intentionally showing them what I want them to hear. I write



                                             17
my own notes. I have my own way of taking notes.” The trial court then expressly asked

whether Juror No. 10 was communicating in any way with Juror No. 11 during

Dr. Reantaso’s testimony. Juror No. 10 said, “No.”

        The trial court asked Juror No. 10 whether during the testimony of Dr. Resnick, he

recalled “having any kind of communication, whether verbally or physically[,] with

[Juror] No. 11,” and when Juror No. 10 asked the trial court to explain, the court asked,

“Did you show her something you’d written down in your book?” Juror No. 10

answered, “No, I don’t make it—no. I don’t show—I mean, like I said, it’s sitting in my

lap. I write stuff down. If there’s something that strikes me, then—I don’t know how

[to] put it. If something strikes me—I don’t write—I guess the way my body language is,

I may get kind of like, whoa, yeah there is a point. But I don’t make it a point to show it

to anybody, like, hey, look. This is a point you should see.”

        The trial court then asked whether he was uncomfortable in the chair because of

his long legs, and Juror No. 10 explained that his knees get cramped, that he is always

moving his chair around and bumping Juror No. 11. After first indicating she would try

to get him a different place to sit where he could stretch his legs, the trial court asked

Juror No. 10 if there was any reason he could not be fair and impartial. Juror No. 10 said,

“No.”

        The trial court then questioned Dr. Vasilis Pozios, a colleague of Dr. Resnick, who

had been in court to observe the trial in general and specifically to observe Dr. Resnick’s

testimony. Dr. Pozios testified that he had been taking detailed notes of everything going



                                              18
on during the trial and he “couldn’t help but notice that the two jurors in question

communicated to each other on at least three occasions . . . both nonverbally and once

there was a verbal exchange between the two of them.” According to Dr. Pozios, the first

nonverbal exchange occurred on Monday during the direct testimony of Dr. Resnick.

Dr. Pozios made a notation that Jurors Nos. 10 and 11 “looked at each other and smirked

when the topic of killing one son, not two, was discussed.” The second nonverbal

exchange took place during the second day of Dr. Resnick’s direct testimony. “The two

jurors in question looked at each other when the topic of the defendant being struck by a

flashlight was discussed.” When asked to describe how they looked at each other,

Dr. Pozios stated, according to his notes, that Juror No. 11 had a look of disgust on her

face and then the two jurors looked at each other. Dr. Pozios noted that during cross-

examination of Dr. Resnick, Juror No. 10 and Juror No. 11 looked at each other three

times—the first time during the topic of the review of other doctors’ records; next, Jurors

Nos. 10 and 11 looked at each other in disbelief after Dr. Resnick testified that he based

his opinion on the observations of a nurse practitioner who had treated defendant, but not

on her opinion that defendant is bipolar; and then yesterday afternoon when Dr. Resnick

was “talking about the analogy of Abraham killing his sons on an order from God but

having feelings about killing his sons. [Dr. Pozios had] noted that the two jurors looked

at each other during that explanation.” During the testimony of defendant’s 15-year-old

son regarding the number of sons defendant was instructed to kill, Dr. Pozios noticed




                                             19
“some strong facial expressions between the jurors and . . . also a verbal communication,

looked like one or two words from [Juror No. 10 to Juror No. 11].”

       Finally, the trial court questioned Juror No. 12 to see whether that juror had

noticed any communication, mostly nonverbal like gesturing, smirking, laughing, going

on between Juror No. 10 and Juror No. 11. Juror No. 12 had not seen anything like that,

even though, as the juror put it, “I’m kind of facing this way,” presumably meaning that

Juror No. 12 faced toward the two jurors in question. Juror No. 12 had only seen “maybe

a bump of a seat and an, ‘Oh, I’m sorry,’ but . . . no smirking or any of that . . . .”

       After excusing Juror No. 12, the trial court acknowledged that there had been

“some sort of interaction between” Jurors Nos. 10 and 11. But the trial court could not

determine whether the communication was improper or “very innocent,” such as

regarding Juror No. 10 being uncomfortable. Because Juror No. 12, whom the trial court

viewed as the most helpful witness due to proximity, had not heard or seen anything, the

trial court found that Juror No. 10 and Juror No. 11 had not engaged in misconduct, and

even if they had, there had been no showing of actual prejudice. Therefore, the trial court

denied defendant’s motion to remove Juror No. 10 and Juror No. 11. Instead, the trial

court again admonished the entire jury not to communicate about the case with each other

until the close of evidence and they were in deliberation.

       Defendant contends the trial court abused its discretion in finding that Juror No. 10

and Juror No. 11 had not engaged in misconduct because, at the very least, the two jurors

had been dishonest when they denied they had communicated with each other during



                                              20
trial. Defendant points out, and the trial court acknowledged, that four people had seen

the two jurors communicate nonverbally with each other, and three of the four testified

that they had seen Juror No. 10 write something in his notepad, which he then showed to

Juror No. 11. Defendant contends the jurors at the very least engaged in misconduct by

being untruthful, and such juror misconduct gives rise to a rebuttable presumption of

prejudice. We do not share defendant’s view.

       Under Penal Code “section 1089 the trial court may discharge a juror who

‘becomes ill, or upon other good cause shown to the court is found to be unable to

perform his [or her] duty,’ and once put on notice that good cause to discharge a juror

may exist, the court has a duty to make whatever inquiry reasonably is necessary to

determine whether the juror should be discharged. [Citation.]” (People v. Bradford

(1997) 15 Cal.4th 1229, 1351.) “[T]o establish juror misconduct, the facts must establish

‘“an inability to perform the functions of a juror, and that inability must appear in the

record as a demonstrable reality.”’ [Citations.]” (Ibid.) “The decision whether to

investigate the possibility of juror bias, incompetence, or misconduct, as well as the

ultimate decision whether to retain or discharge a juror, rests within the sound discretion

of the trial court. [Citation.] If any substantial evidence exists to support the trial court’s

exercise of its discretion pursuant to [Penal Code] section 1089, the court’s action will be

upheld on appeal. [Citation.]” (Ibid.)

       Defendant did not base her misconduct claim in the trial court on the fact that the

jurors had been dishonest in their responses. As a result, the trial court did not address



                                              21
that issue. The record suggests that neither Juror No. 10 nor Juror No. 11 was

particularly forthcoming. However, they each answered the specific questions asked of

them, with the possible exception of whether they had communicated with each other in

any manner during the trial. It is apparent from the record that the two jurors did

communicate, but the subject of their communication is not clear. The jurors could

reasonably have construed the trial court’s question as being limited to communication

about the case. Because defendant did not raise the issue of the jurors’ honesty, the

possibility that they had misunderstood the question was not developed in the trial court.

Consequently, we are unable to determine whether the jurors lied, and thereby committed

misconduct, or simply misunderstood the trial court’s question.

       Because the record supports the trial court’s finding that the jurors had not

communicated with each other about the case, we must affirm the trial court’s finding

that the two jurors in question had not committed misconduct.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                 Acting P.J.
We concur:



MILLER
                          J.


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CODRINGTON
             J.




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