THE PEOPLE v. RICHARD ANIMASHAUN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANIMASHAUN, Defendant and Appellant.

B224530

Decided: October 28, 2011

Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Richard Animashaun of making criminal threats, attempted burglary, and vandalism causing damages of $400 or more.  (Pen.Code, §§ 422;  664/459;  594, subd. (a)).1  On appeal, Animashaun claims the trial court erred when it denied his motion for mistrial based on the undisputed fact that jurors listened to an audio recording of a 911 telephone call which they did not hear at trial.   Although the trial judge astutely and comprehensively analyzed the issue, we agree with Animashaun that his motion for mistrial should have been granted.   The judgment is reversed.

FACTS

Examined in light of the ordinary standard of review on appeal (see, e.g., People v. Bolin (1998) 18 Cal.4th 297, 331), the evidence at trial established these facts:  Early on the morning of April 8, 2009, police officers went to Animashaun's apartment and then left.   After the police left, Animashaun became mad at the tenant in the neighboring unit, Montre Burton, because he believed Burton had called the police.   Animashaun started banging on the wall of Burton's unit, then tried different ways to gain entry into Burton's apartment.   Animashaun “rattled” the door of Burton's unit, then went on the roof of the apartment building and tried breaking a skylight into Burton's unit, all the while yelling screed to the effect, “I'm going to kill you, you faggot.”   Burton called 911 more than once.   When police arrived, Animashaun was still on the roof of the apartment building.   Los Angeles Police Department Officer William Faulkner persuaded Animashaun to get down from the roof, and then arrested Animashaun.   The afternoon after Animashaun's arrest, the apartment building's manager went to Animashaun's unit and found that it had been extensively damaged, with shattered windows and glass doors.

In May 2009, the People filed an information charging Animashaun with the three counts noted at the outset of this opinion.2  The information also alleged that Animashaun had two prior strike convictions (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(d)), to wit, a conviction for criminal threats in 2007 and a conviction for robbery in 2007.   The information further alleged the prior convictions to be serious felony convictions. (§ 667, subd. (a)(1).)   The cause was tried to a jury in late November and early December 2009.   At that time, the prosecution presented evidence establishing the facts summarized above.   Animashaun presented no defense evidence.   His trial counsel argued as to the criminal threats count that the victim, Burton, was not in “sustained fear” for his safety;  as to the burglary count that Animashaun never had the intent to get into Burton's apartment;  and, as to the vandalism count, that there was no direct eyewitness evidence showing that it was Animashaun who caused the damage inside his apartment.

On December 3, 2009, at 1:38 p.m., the case was submitted to the jury.   Amongst the trial evidence sent into the jury room for deliberations was a CD audio disc, Exhibit 1, which contained recordings of two 911 telephone calls that Burton had made to the police and which had been discussed at trial.   The genesis for the current appeal is the fact that Exhibit 1 also contained a recording of a third 911 call that Burton had made to the police, but which had not been discussed at trial.3

At 2:48 p.m., the jurors asked for a CD player so they could listen to Exhibit 1. Over the next hour or so there was some back-and-forth, with the jurors being told they would be provided with a CD player, and the prosecutor advising the court that Exhibit 1 contained a recording of a third 911 call which Burton had made, but which had not been discussed at trial.   The prosecutor stated that he would make a redacted copy of Exhibit 1, without the third 911 call, and would give the redacted copy of Exhibit 1 and a CD player to the jurors.   At 3:50 p.m., the jurors told the bailiff they no longer needed the CD player as they had listened to Exhibit 1 on one of the juror's laptop computers.   At that point, the trial court told the bailiff to take away all of the jurors' laptop computers, and the court then spoke to the jury foreperson in the lawyers' presence.   The foreperson told the court that the jurors had listened to all three 911 recordings on the CD, Exhibit 1. The court told the foreperson to return to the jury room, and not to discuss their conversation.   The court and the lawyers then discussed “what to do” about the situation.

Although an exact minute-by-minute chronology cannot be discerned from the record, there is no dispute the jury indicated it had reached a verdict at some point while the exchanges concerning the jury's listening to the third 911 call on Exhibit 1 were ongoing.   It is also undisputed that Animashaun's trial counsel moved for a mistrial upon learning the jury had reached a verdict.   The court ordered briefing, and then told the jury that it could not accept the verdict because a “legal issue [had] arisen.”   The next day, the court and the lawyers listened to the third 911 recording on Exhibit 1, and the court again spoke with the jury foreperson.   The foreperson confirmed that all of the jurors had listened to the third 911 call on Exhibit 1. The court admonished the foreperson not to discuss the court's inquiry with the other jurors, and then heard argument on the motion for mistrial.

Animashaun's trial counsel argued that the third 911 call was prejudicial because Burton had talked with a “very different demeanor” during that call than during the other two calls, and it undermined the defense theory as to the count for criminal threats, i.e., that Burton had not been in sustained fear for his safety during the incident.   Animashaun's counsel further argued that the matter could not be addressed by a curative instruction or admonishment because those remedies would not “unring the bell.”   For the People, the prosecutor argued that an instruction would be “absolutely the correct course of action․”

The trial court denied Animashaun's motion for mistrial for two stated reasons.   In the first part of its decision, the court found that an “ordinary” trial error had occurred in that it was the parties and the court who inadvertently caused the jurors to be exposed to the third 911 call.   The court found the ordinary error harmless.   This was the court's explanation:

“[I]t does appear to the court that some material was listened to [by] the jury – that it was not within the expectations of the parties that it would be listened to by the jury.   It was not discussed in front of the jury.   It was not played in front of the jury.   The witness was not asked about it, although the witness testified that there were other 911 calls, and I do believe he testified that he was whispering when he was making 911 calls.

“The court is denying the motion for a mistrial.   Number one, ․ as to the CD, there was no objection.   There was an objection earlier regarding the late discovery of the CD, but there was no objection to the third 911 call.   It was not brought to the court's attention ․

“ ․ Moreover, ․ it appears to the court that it was properly admissible.   For a variety of reasons, it could have been offered, and would have – appears to the court to have been properly admissible․  [I]t could have been offered.   It wasn't.  [¶] As I said, there was discussion of multiple – the witness said there were other 911 calls.   Okay. But the jury did hear something that was not discussed.”

In the second part of its decision, the trial court considered the situation under the more stringent rules governing “juror misconduct,” and, again, found the juror's listening to the extraneous third 911 call was not prejudicial.   This was the court's explanation:

“Assuming that the court is [incorrect that only an ordinary trial error occurred], and that that is, in fact, jury misconduct – inadvertent jury misconduct, ․ the case law would refer to this type of misconduct as inadvertent.   The jury didn't do something intentionally․  [T]he jury did not do something intentionally, ․ contradict any court's ruling, but they listened to something that was back there that they shouldn't have.

“So assuming that it is that type of juror misconduct, then we get to the question of is there – is the presumption of prejudice rebutted by the factual circumstance?  ․ [¶] ․ [¶] The court finds that it is not inherently prejudicial․  [¶] ․ And even if it is not so inherently prejudicial, if in the nature of the misconduct and the surrounding circumstances, the court determines it is substantially likely that a juror was actually biased against the defendant – or looking at the case cited – a different way of articulating․  Whether the jurors' impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened, and whether any assertive defense has been contradicted – the court is finding beyond a reasonable doubt that it has not.”

After its ruling on the motion for mistrial, the court gave this further instruction to the jury:  “Ladies and Gentlemen, it came to my attention that the jury reviewed a third 911 call that was not played in the courtroom.   The contents of that call are not evidence.   You may consider all evidence heard in the courtroom, but as there was no testimony of the contents of the third call, do not consider the contents of the third call in any manner.  [¶] In light of my new instruction, recommence your deliberations.”   The jury was then given a redacted version of the CD, Exhibit 1, that did not contain the third 911 call, along with new verdict forms.

The jury recommenced its deliberations at 10:58 a.m. on December 4, 2009.   At 11:35 a.m., the jury returned its guilty verdicts.

In February 2010, Animashaun filed a motion for new trial in which he re-argued the issue of the jury's listening to the third 911 recording contained on the CD, Exhibit 1, and a motion to dismiss the prior conviction allegations alleged under the Three Strikes Law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)   At a hearing on March 9, 2010, Animashaun admitted he suffered prior convictions which qualified as prior strikes and prior serious felony convictions.   At a hearing on April 29, 2010, the trial court denied Animashaun's motion for new trial, and granted his motion to dismiss a prior strike allegation.   The trial court then sentenced Animashaun to an aggregate sentence of 9 years in state prison, as follows:  the low term of 1 year, 4 months on count one, criminal threats, doubled to 2 years, 8 months for the prior strike;  the low term of 2 years, on count 2, attempted burglary, concurrent;  and one-third the midterm or 8 months, doubled to 1 year, 4 months, consecutive on count 3, felony vandalism.   The court imposed a 5–year term for a single prior serious felony conviction pursuant to section 667, subdivision (a)(1).

DISCUSSION

Animashaun contends his convictions must be reversed because the trial court erred when it denied his motion for mistrial.   We agree.

A motion for mistrial is a request to the trial court to terminate the trial before a verdict is returned.   A motion for mistrial should be granted when a defendant has been prejudiced by a trial event, and the prejudice cannot be cured by an instruction or other admonition.  (People v. Jenkins (2000) 22 Cal.4th 900, 985–986;  People v. Woodberry (1970) 10 Cal.App.3d 695, 708.)   Grounds for mistrial include juror misconduct.  (People v. Jenkins, supra, 22 Cal.4th at pp. 983–986.)   A trial court's decision to deny a motion for mistrial grounded on a claim of juror misconduct is reviewed for abuse of discretion.  (Id. at pp. 985–986.)

Our state's juror misconduct jurisprudence protects a defendant's constitutional right to a trial by unbiased, impartial jurors who are capable and do decide his or her case based solely on the evidence presented at trial.  (People v. Nesler (1997) 16 Cal.4th 561, 578 [addressing juror misconduct raised in context of a motion for new trial].)   When a juror causes information to become known to that juror (and/or other jurors) about the defendant or the case which was not part of the evidence presented at trial, the receipt of the juror-germinated information falls into the category of “juror misconduct” without regard to blameworthiness, i.e., regardless of whether the receipt of the extraneous matter occurred intentionally or through inadvertence.  (Id. at pp. 578–579.)   A defendant is presumed to be prejudiced by such juror misconduct;  the presumption is rebutted when the receipt of extraneous material is found to be “nonprejudicial.”  (Ibid., discussing In re Carpenter (1995) 9 Cal.4th 634, 652–653 [addressing juror misconduct raised in context of petition for writ of habeas corpus].)   This means that a verdict will be set aside based upon the receipt of extraneous material “only if there appears a substantial likelihood of juror bias” underpinning the verdict.  (In re Carpenter, supra, 9 Cal.4th at p. 653.)

A substantial likelihood of juror bias resulting from juror misconduct vis-à-vis an exposure to extraneous evidence can appear in either of two ways:  (1) when extraneous material is so inherently prejudicial that it is likely to have influenced at least one juror, or (2) when, even with less than inherently prejudicial extraneous material, a court finds a substantial likelihood that a juror was actually biased based upon the nature of the juror misconduct and other surrounding circumstances.  (In re Carpenter, supra, at pp. 653–654.)

Finally, when the trial court or a party inadvertently causes extraneous evidence to be considered by jurors, there is no juror misconduct, but only “ordinary error.”  (People v. Clair (1992) 2 Cal.4th 629, 668;  People v. Cooper (1991) 53 Cal.3d 771, 836;  see also People v. Gamache (2010) 48 Cal.4th 347, 397 (Gamache ) [“We have consistently pardoned jurors for considering extrinsic evidence that finds its way into the jury room through party or court error.”].)

“Of course, the question of characterization is potentially significant.   With [juror] misconduct, prejudice is presumed and reversal [of a verdict] is required unless there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment.  [Citations.]  By contrast, with ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted.  [Citation.]”  (People v. Clair, supra, 2 Cal.4th at p. 668.)   In short, the standard is manifestly stricter for juror misconduct than it is for ordinary error.  (Ibid.)

Animashaun argues the record shows juror misconduct because the jurors used a personal computer to listen to the 911 calls on the CD, Exhibit 1. Thus, he argues it was a juror-related activity that resulted in the jurors hearing the third 911 call which they should not have heard.   He cites us to People v. Collins (2010) 49 Cal.4th 175 (Collins ) and U.S. v. Wheaton (6th Cir.2008) 517 F.3d 350.   The People argue the record does not show juror misconduct because the jurors did not use a computer for research or an experiment, and that we have only a situation where evidence was inadvertently delivered to the jurors by court and/or party error.   The People cite Gamache, supra, 48 Cal.4th 347.   As we noted above, the trial court, in ruling on Animashaun's motion for mistrial, looked at the issue under both an “ordinary error” and “inadvertent juror misconduct” rubric.

Initially, as to the characterization of this case as either “ordinary error” or “juror misconduct,” we are not satisfied by either side's cited cases.   None of the cited cases are directly on point because Animashaun's case presents what we view as a hybrid situation.   We are not actually in the Gamache situation because Animashaun's case did not involve having a photograph, document or other tangible item of evidence inadvertently placed in front of jurors.   Exhibit 1 was merely a piece of plastic until the jurors accessed its audio information by using a personal computer's audio playing device.   At the same time, we are not truly in a Collins situation either because we do not have jurors using a computer as a research or experimentation tool, but rather, only as a CD player.   What we have in the current case is a recorded disk being given to the jurors with inadvertently included material, and the jurors then using a computer to open the disk, resulting in their gaining access to the inadvertently included material.

We find that “inadvertent jury misconduct” occurred in Animashaun's case.   The jury should not have opened the CD, Exhibit 1, with a personal computer.   “Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term ‘misconduct,’ it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut.”  (People v. Nesler, supra, 16 Cal.4th at p. 579.)   Accordingly, the critical issue in Animashaun's case becomes whether, from the record, it appears that the jurors' exposure to the third 911 call caused a “substantial likelihood of juror bias.”   On this point, we disagree with the trial court that there was no such likelihood.

Our independent task is to determine whether, from the nature of the misconduct, and all the surrounding circumstances, there is a substantial likelihood that any juror was “actually biased, i.e., was unable to put aside [his or] her impressions or opinions based upon the extrajudicial information ․ received and to render a verdict based solely upon the evidence received at trial.”  (See People v. Nesler, supra, 16 Cal.4th at pp. 582–583.)   We do not accept that the jurors could have abided this mental detachment.   In particular, we are concerned with the effect the third 911 call had on the criminal threats count.   As Animashaun correctly explains, the two admitted 911 calls properly heard by the jurors were relatively short (2 or 3 minutes or so) and did little more than establish that Burton called to report someone was trying to break into his apartment.   In contrast, the third 911 call, which was inadvertently heard by the jurors, was roughly 11 minutes long and also dramatically different in emotional tone.   The element of “sustained fear” does not come through in the first two 911 calls, but is palpably apparent in the third 911 call.   The defense theme insofar as the criminal threats count was argued was that the element of the sustained fear did not exist;  the third 911 call swamped this defense theme.   We find it substantially likely that the jury's decision to convict Animashaun of the criminal threats count came about as a result of the effect of the third 911 call, i.e., the jurors were “biased” to convict on that count by the extraneous third 911 call, and that they did not convict him based solely on the evidence admitted at trial.4

We find the trial court correctly articulated the legal standard that applied to the analysis of inadvertent juror misconduct but, having listened to all three 911 calls, we respectfully disagree with the court's conclusion that there was no substantial likelihood of bias as that term is defined in the published cases.   Although Burton testified that he was very scared during Animashaun's attack, we are not satisfied that the jury convicted him based solely on that evidence, divorcing its decision from any consideration of the extraneous third 911 call on the CD, Exhibit 1. In the end, we find Animashaun's argument that exposure to Burton's extended and more emotional third 911 call created a substantial likelihood that at least one juror convicted based that call.   Animashaun was entitled to a full panel of 12 unbiased jurors, and we find a substantial likelihood that this was not the situation.   For this reason, Animashaun's motion for mistrial should have been granted.

DISPOSITION

The judgment is reversed.

BIGELOW, P. J.

We concur:

RUBIN, J.

GRIMES, J.

FOOTNOTES

FN1. All section references are to the Penal Code..  FN1. All section references are to the Penal Code.

FN2. The information originally charged Animashaun in a count 4 with the offense of dissuading a witness.   Count 4 was dismissed mid-trial and is not an issue on appeal..  FN2. The information originally charged Animashaun in a count 4 with the offense of dissuading a witness.   Count 4 was dismissed mid-trial and is not an issue on appeal.

FN3. The prosecutor and defense counsel knew there were three 911 recordings on the CD, Exhibit 1. The record is largely silent as to why an edited CD with only the two 911 calls presented at trial was not prepared before trial;  the record is largely silent as to why the prosecution decided not to use all three 911 calls at trial.   There is a comment in the record by the trial court about the CD and “late discovery.”   The CD, Exhibit 1, was sent to the jury room without a CD player.   Overall, the record suggests to us that neither the prosecutor nor defense counsel thought about the possibility that the jurors might want to listen to the CD..  FN3. The prosecutor and defense counsel knew there were three 911 recordings on the CD, Exhibit 1. The record is largely silent as to why an edited CD with only the two 911 calls presented at trial was not prepared before trial;  the record is largely silent as to why the prosecution decided not to use all three 911 calls at trial.   There is a comment in the record by the trial court about the CD and “late discovery.”   The CD, Exhibit 1, was sent to the jury room without a CD player.   Overall, the record suggests to us that neither the prosecutor nor defense counsel thought about the possibility that the jurors might want to listen to the CD.

FN4. We have not been asked in this case to consider whether California trial courts have the power to grant a “partial mistrial” before verdict as to one tainted count, while allowing other counts to go to a jury.  (See, e.g., State v. Diggs (La.App.2008) 1 So.3d 673, 679.)   It would appear that the third 911 call only caused a substantial likelihood of juror bias as to the criminal threats count.   But, inasmuch as this case has presented only the issue of whether a full mistrial was properly denied, we have only addressed that issue..  FN4. We have not been asked in this case to consider whether California trial courts have the power to grant a “partial mistrial” before verdict as to one tainted count, while allowing other counts to go to a jury.  (See, e.g., State v. Diggs (La.App.2008) 1 So.3d 673, 679.)   It would appear that the third 911 call only caused a substantial likelihood of juror bias as to the criminal threats count.   But, inasmuch as this case has presented only the issue of whether a full mistrial was properly denied, we have only addressed that issue.