                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 18 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

IVAN VASQUEZ,                                    No. 07-55707

             Petitioner - Appellant,             D.C. No. CV-05-02267-DMS

  v.

JAMES WALKER,

             Respondent - Appellee.



ALBERTO RENTERIA,                                No. 07-55715

             Petitioner - Appellant,             D.C. No. CV-05-02266-DMS

  v.

JAMES WALKER,                                    MEMORANDUM *

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted November 6, 2009
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and BEA, Circuit Judges, and HART, ** District Judge.

      Ivan Vasquez and Alberto Renteria, California state prisoners, appeal a

federal district court’s order denying their petitions under 28 U.S.C. § 2254 for

writs of habeas corpus. Appellants contend an opinion by the California Court of

Appeal—which affirmed the San Diego Superior Court’s denial of their motion for

a new trial based on alleged juror misconduct—violated Appellants’ due process

rights under the Fourteenth Amendment and right to a fair trial under the Sixth

Amendment.

      We have jurisdiction under 28 U.S.C. §§ 1291, 2253(c). When reviewing a

district court’s denial of habeas corpus relief, we review the district court’s legal

holdings de novo and its factual findings for clear error. Buckley v. Terhune, 441

F.3d 688, 694 (9th Cir. 2006) (en banc). We affirm because there is no evidence in

the record that an extraneous influence affected the jury deliberations. Thus, on

Appellants’ moetion for new trial, the trial court did not violate Appellants’

constitutional rights by excluding from evidence the declarations of two jurors

addressing what happened in the jury room.




       **
            The Honorable William T. Hart, United States District Judge for the
Northern District of Illinois, sitting by designation.
                                           2
       Each Appellant was convicted of two counts of assault with a deadly weapon

by means of force likely to cause great bodily injury “for the benefit of, at the

direction of, or in association with a criminal street gang with the specific intent to

promote, further or assist in criminal conduct by gang members,” in violation of

California Penal Code §§ 245(a)(1), 186.22(b)(1).

       Before sentencing, Appellants moved the Superior Court for a new trial. In

support, Appellants filed with the court, inter alia, declarations from two of the

trial jurors. The jurors declared that, during deliberations, the foreman read the

jury instructions to the jurors, but then incorrectly stated the defendants aided and

abetted the attack if they were present but refused to intervene. Further, the jurors

declared the foreman refused to allow all but one of the other jurors to read the

written jury instructions. After holding four hearings, the Superior Court denied

Appellants’ motion for a new trial. The California Court of Appeal and the

California Supreme Court denied their petitions on this same basis, as did the

federal district court.

       Absent evidence of some “extraneous influence” on the jury, Supreme Court

law that was well-established at the time of Appellants’ trial, “flatly prohibited the

admission of juror testimony to impeach a jury verdict.” Tanner v. United States,

483 U.S. 107, 117 (1987); see also Fed. R. Evid. 606(b); Cal. Evid. Code § 1150.


                                           3
The same rule applies when a defendant raises a Sixth Amendment challenge to a

jury verdict based on improper influence. Estrada v. Scribner, 512 F.3d 1227,

1238 (9th Cir. 2008).

      Here, the only evidence presented was evidence of internal jury

deliberations. The declarations of the jurors were silent with respect to the reason

for the foreman’s misstatement of the law. Further, the foreman’s refusal to allow

all but one juror to read the instructions is likewise an internal, not external,

influence on the jury’s deliberations. The trial judge read the jury instructions to

the jury in open court, and the foreman read those instructions to the jury again

during their deliberations. Further, if any juror had a question about the jury

instructions and whether the foreman’s interpretation of them was correct, the jury

could have asked the trial court a question to clarify the meaning of those

instructions.

      Counsel for Appellants interprets an extraneous influence to include a

juror’s erroneous legal interpretation of the jury instructions. This interpretation is

not correct. Federal courts have interpreted an “extraneous influence” as an

external influence on the jury. See, e.g., Mattox v. United States, 146 U.S. 140,

148–53 (1892) (holding admissible juror testimony describing how, during the

deliberations, the jury read outside information not admitted into evidence). For


                                            4
example, a juror’s discussion of his mother’s murder while deliberating in an

unrelated case was deemed “extraneous evidence,” see Estrada, 512 F.3d at 1238,

as was a jury’s discussion of a highly publicized telephone call, excluded from

evidence by the trial judge, in which the caller took credit for the crime at issue in

the case, see Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).

      In contrast, federal courts have deemed evidence of a juror’s mental

processes—for example, a juror’s ability to hear or comprehend evidence—as

evidence of internal influences that a trial court cannot admit into evidence to

impeach a jury verdict. See Tanner, 483 U.S. at 118; see also United States v.

Rutherford, 371 F.3d 634, 640 (9th Cir. 2004) (holding that the jury’s

consideration, during deliberations, of the defendant’s failure to testify was

inadmissible evidence of internal influences).

      Irvin v. Dowd, 366 U.S. 717 (1961), does not alter our analysis. In Irvin, the

issue was whether the trial court should have granted a defendant’s motion to

change venue where the prosecutor had so widely publicized the defendant’s

confession to the murders that all the jurors were unduly influenced before the trial

even began. Id. at 727. Evidence that the jury pool is tainted in a particular venue

due to press coverage is evidence of an external influence on the jury. By contrast,




                                           5
this case involves evidence of a juror’s own internal mental processes, evidence

that was properly excluded by the trial judge in accordance with Tanner.

      Here, the decision of the California Court of Appeal was not contrary to

clearly established federal law. Although the Court of Appeal’s decision relied on

California law, the decision stated the same distinctions between admissible

evidence of external influences on jury deliberations and inadmissible evidence of

jurors’ mental processes. Because there is no evidence in the record of any

extraneous influence on the jury, Appellants fail to meet the burden to prove the

state court’s decision was either (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States”; or (2) “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

      AFFIRMED.




                                          6
