PEOPLE v. EVENS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry EVENS, Defendant and Appellant.

No. B042541.

Decided: August 27, 1991

R. Charles Johnson, under appointment by the Court of Appeal, San Anselmo, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., and Richard L. Walker, Deputy Atty. Gen., for plaintiff and respondent.

Appellant, Larry Evens, appeals from a judgment of conviction after a jury trial.   Appellant contends the trial court abused its discretion in denying his motion for new trial based on two instances of juror misconduct:  (1) juror concealment of bias on voir dire and (2) introduction of new evidence through an improper jury experiment.   Appellant also asserts he was improperly punished twice for a single course of conduct.   We find appellant's case was prejudiced by the juror misconduct and reverse the judgment.

FACTS AND PROCEEDINGS BELOW

Appellant, and one of the victims, Ms. Burton, dated for eight months.   During this relationship appellant allegedly displayed jealously and possessiveness.

On April 23, 1988, appellant visited Ms. Burton at her condominium.   There was a physical confrontation caused by the presence of Ms. Burton's male friend.   The police were called and appellant was placed under citizen's arrest.

After filing a police report at the station, Ms. Burton returned home and discovered the key to her condominium missing and her car windows smashed.   She subsequently discovered her garage door opener was also missing.   Thereafter, Ms. Burton changed the locks to the condominium.

During the early morning hours of April 26, 1988, Ms. Burton awoke to someone gripping her hands and a sharp object running down her face.   She testified she screamed and looked up to see appellant's face close to hers.   None of the lights in Ms. Burton's condominium were on during this incident.

As she struggled and screamed, she heard appellant say “Uh-huh, if I can't have you, no one else can.”   Ms. Burton testified she recognized his voice, the roughness of his hands, his clothing, and his mannerism of saying “uh-huh”.   Ms. Burton struggled to her feet, but was shoved back onto the bed and stabbed in the left breast.

Hearing a scream, Ms. Moore, Ms. Burton's roommate, awakened and came into the room.   Ms. Moore testified that as she entered, appellant immediately stood up and turned around so she could see his face.   Ms. Moore claimed she immediately recognized appellant because of his size and distinct features.   The attacker then hit her in the face and upper body knocking her backwards.   He then resumed his attack on Ms. Burton, but she was able to escape.

Both victims testified to the adequacy of the outside sources of light.   Ms. Moore testified the bedroom faces onto a common garage area illuminated by three lights attached to nearby buildings.   She claimed this lighting source, combined with three amber colored lights on the street and porch lights of the neighbors, provided sufficient lighting to identify appellant.

Ms. Burton testified this light from the parking area entered through her open blinds.   She also testified to the placement of lights on the outside of her condominium and the surrounding condominium complexes.

As a result of the attack, Ms. Burton suffered multiple stab wounds, facial and other scarring, and a collapsed lung.   Ms. Moore sustained multiple stab wounds and two collapsed lungs.

Appellant testified on his own behalf.   According to his testimony, he went to see Ms. Burton on the morning of April 23, 1988, to end their relationship.   When he saw Ms. Burton's new male companion he believed she was going to spend the night with him and became upset.   Ms. Burton hugged him and stated she did not want to end the relationship but he pushed her away.

From the time of the incident on April 23 until his arrest on April 29, appellant claimed he did not return to the condominium.

The defense asserted the circumstances of the attack made an accurate identification impossible.   First, the outdoor lighting was inadequate to accurately identify appellant as the attacker.   The evidence showed the attack took place sometime after midnight and before daylight the next morning.   No lights were on inside the condominium.   The only source of light was through a bedroom window facing over a lighted garage.   The evidence showed the building lights were placed below the victims' third floor bedroom, but provided an arc of light.

Second, the defense argued identification of appellant was made during a short violent attack, thereby casting suspicion on its accuracy.   The attack lasted only about three minutes, too short a time for any identification to be certain or accurate.

Third, the defense pointed out inconsistencies in the victims' testimony which shed doubt on the reliability of the identification.   Ms. Burton testified appellant was wearing dirty white tennis shoes, gray sweats, a jacket with fuchsia and blue colors, and a tee-shirt.   Ms. Moore testified she did not notice the attacker's clothing and was unsure whether there was enough light to distinguish colors.   She claimed if she had concentrated she could have distinguished between light and dark colors.

Appellant was arrested on April 29, at his place of employment.   With his consent, clothing was seized from his work truck and personal car.   The clothing was tested for the presence of blood with negative results.

On May 20, 1988, appellant was charged in a six count information alleging:  residential burglary, assault with a deadly weapon, mayhem, attempted voluntary manslaughter as well as special allegations of personal use of a deadly weapon and infliction of great bodily injury.   Appellant pled not guilty and denied the special allegations.

The jury found appellant guilty of residential burglary (Pen.Code, § 459);  assault with a deadly weapon (Pen.Code, § 245(a)(1);  aggravated mayhem (Pen.Code, § 205);  and attempted voluntary manslaughter (Pen.Code, §§ 664, 192).   The special allegations were also found true (Pen.Code, §§ 12022(b), 12022.7).   After various modifications to the verdict and sentence, appellant was ultimately sentenced to 14 years and 6 months.

On March 31, 1989, appellant's motion for new trial based on allegations of juror misconduct was denied.   The trial court agreed there had been juror misconduct because of a juror's concealment, then revelation to the rest of the jury of a nearly identical experience to the facts of appellant's case where the juror was able to identify a known assailant in the dark.   The court determined, however, appellant had not been prejudiced because the juror appeared to be fair and impartial despite her concealment of bias on voir dire.

The trial court determined the second alleged instance of juror misconduct—an experiment during deliberations to determine if jurors could identify each other in the dark—was not misconduct.   The court instead found the experiment to be within the realm of common experience.   The trial court reasoned it was a matter of common experience to know what can be seen in darkness.   Thus, the trial court concluded appellant was not prejudiced by the juror concealment or the experiment and received a fair trial.

Appellant appeals from the judgment of conviction asserting the trial court abused its discretion in denying his motion for new trial based on juror misconduct.   Appellant further contends he was given multiple punishments for a single course of conduct in violation of Penal Code section 654.1

DISCUSSION

 Penal Code section 1181, subdivision (3), provides a motion for new trial can be granted on grounds of juror misconduct.   Once juror misconduct is found, there is a presumption of prejudice from the misconduct.  (In re Stankewitz (1985) 40 Cal.3d 391, 402, 220 Cal.Rptr. 382, 708 P.2d 1260;  People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91;  People v. Honeycutt (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050.)   This presumption may be rebutted by an affirmative showing by the prosecutor no prejudice in fact occurred or by the court's examination of the entire record that demonstrates no reasonable probability of actual harm to the defendant.  (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, 185 Cal.Rptr. 654, 650 P.2d 1171;  People v. Miranda (1987) 44 Cal.3d 57, 117, 241 Cal.Rptr. 594, 744 P.2d 1127.)

On appeal, a trial court's decision of a new trial motion “ ‘will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’ ”  (People v. Williams (1988) 45 Cal.3d 1268, 1318, 248 Cal.Rptr. 834, 756 P.2d 221, quoting Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681.)

I. CONCEALMENT OF BIAS ON VOIR DIRE WAS PREJUDICIAL JUROR MISCONDUCT.

During jury selection, all prospective jurors were asked eight standard voir dire questions.   One question was “Whether they [jurors] themselves, a relative or close friend were involved in criminal matters as accused or victim.”   In response to this question, Ms. Camis related her experience as a victim of four burglaries.   Defense counsel pursued questions as to the time and place of the burglaries.   The court asked juror Camis whether those experiences would cause her to be other than fair and whether they would enter into her deliberations.   Ms. Camis answered in the negative.   The prosecution inquired whether the fact “this case involved attempted murder ․ would make her prefer not to sit as a juror.”   Again, Ms. Camis answered in the negative.

At the hearing on the motion for new trial, Ms. Camis explained what occurred during jury deliberations.   She testified there was considerable disagreement among the jurors whether the lighting was adequate to see appellant.   At least two jurors argued there was insufficient light for a proper identification.

This prompted Ms. Camis to share with the other jurors a previous rape experience she had not disclosed during voir dire.   Ms. Camis was raped at knifepoint in her house at night by a known assailant and was able to identify him in the dark.   Ms. Camis' house was dark because there were shutters on the window.   The only available light was from a street lamp in front of her neighbor's house.

According to Ms. Camis' testimony, a few jurors changed their vote after her revelation.2

The trial court agreed Ms. Camis' active concealment on voir dire she was a victim of a rape was misconduct.   The facts of Ms. Camis' attack were virtually identical to those in appellant's case.   The trial court, however, found the misconduct nonprejudicial and determined appellant received a fair trial.   Consequently, the trial court denied the motion for a new trial.

 It is clear where a juror intentionally lies on voir dire, such an act constitutes misconduct.  (People v. Castaldia (1959) 51 Cal.2d 569, 572, 335 P.2d 104;  People v. Galloway (1927) 202 Cal. 81, 92, 259 P. 332, [ (1928) 16 Cal.L.Rev. 73, reversal required where juror falsely testified on voir dire];  see also, 76 Am.Jur.2d, Trial, § 1098, p. 84 and cases cited.)

 In other circumstances, courts have determined juror misconduct from nondisclosure of bias during voir dire by weighing a variety of factors such as whether the voir dire questions were specific enough to elicit the information;  whether the undisclosed information was material to the case;  whether the personal experience of the juror was similar and related to the case;  whether the juror shared his or her experience with other jurors;  when the nondisclosure was discovered, and finally, whether there was any juror testimony of impartiality.  (People v. Blackwell (1987) 191 Cal.App.3d 925, 930, 236 Cal.Rptr. 803;  People v. Kelly (1986) 185 Cal.App.3d 118, 128, 229 Cal.Rptr. 584;  People v. Jackson (1985) 168 Cal.App.3d 700, 702–03, 214 Cal.Rptr. 346;  People v. Diaz (1984) 152 Cal.App.3d 926, 930, 200 Cal.Rptr. 77;  see also, Annot. (1988) 66 A.L.R.4th 509 and cases cited.)

 Based on these factors, the record amply supports the trial court's finding of juror misconduct.   Ms. Camis was directly asked if she had been a victim of a crime.   Ms. Camis admitted to being burglarized four times, but failed to reveal she was a victim of the far more serious crime of rape at knifepoint in the dark.   Because of this experience, Ms. Camis believed a victim of assault can identify a familiar attacker in the dark.   This preconceived notion was a result of her rape experience which she concealed.   Additionally, Ms. Camis shared this biased view with the entire jury, infecting them as well.   Because of this nondisclosure, neither counsel nor the court was alerted to her potential bias.

Although the voir dire question inquired generally about prior crimes, Ms. Camis understood its meaning well enough for her to relate her four experiences of burglary.   Ms. Camis could hardly have forgotten or suppressed the fact she was a victim of rape as well.   She freely shared this experience with the entire jury.   She was not too intimidated nor too embarrassed to inform the court or jurors of this experience.   Although she claimed the facts of the instant case were so similar to her personal experience, she was “reminded” of her rape, it stretches credulity to believe she could have forgotten an experience as traumatic as a rape at knifepoint in her own home.

Thus, the record supports the trial court's finding Ms. Camis actively concealed her bias on voir dire, thereby constituting misconduct.

Upon a finding of jury misconduct, there is a rebuttable presumption of prejudice.  (In re Stankewitz, supra, 40 Cal.3d at p. 402, 220 Cal.Rptr. 382, 708 P.2d 1260;  People v. Pierce, supra, 24 Cal.3d at p. 207, 155 Cal.Rptr. 657, 595 P.2d 91;  People v. Honeycutt, supra, 20 Cal.3d at p. 156, 141 Cal.Rptr. 698, 570 P.2d 1050; 3 Wharton's Crim.Proc. (12th ed. 1975) Selection of Trial Jury, § 471, p. 300.)   This presumption may be rebutted in either of two ways:  an affirmative evidentiary showing prejudice does not exist, or by a reviewing court's examination of the entire record which discloses a lack of prejudice.  (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171;  In re Winchester (1960) 53 Cal.2d 528, 535, 2 Cal.Rptr. 296, 348 P.2d 904;  People v. Phillips (1981) 122 Cal.App.3d 69, 81–82, 175 Cal.Rptr. 703.)   As the trial court noted, the prosecution failed to rebut the presumption in this case.   However, after a review of the entire record, the trial court determined appellant received a fair trial.   We disagree.

Our independent review of the record reveals appellant was prejudiced by the juror's failure to disclose her past rape and her ability to identify her attacker in the dark.   Because there is a reasonable probability of actual harm to the appellant resulting from this misconduct, we must reverse.   (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171;  People v. Miranda, supra, 44 Cal.3d at p. 117, 241 Cal.Rptr. 594, 744 P.2d 1127.)

 In reviewing the entire record, three factors must be considered in determining whether the presumption has been rebutted.   The factors are:  (1) the strength of the evidence misconduct occurred;  (2) the nature and seriousness of the misconduct;  and, (3) the probability actual prejudice may have ensued.  (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 408, 185 Cal.Rptr. 654, 650 P.2d 1171.)

 The juror's own testimony at the hearing on the motion for a new trial revealed she had failed to disclose material facts concerning her prior rape on voir dire.   By her own admission she had neither unconsciously suppressed this prior rape nor was she too embarrassed to discuss it openly with others.   Ms. Camis must have clearly understood the voir dire question because she volunteered she had been a victim of four burglaries.   Thus, the trial court was warranted in finding she had actively concealed the fact of her prior attack, and the bias she felt as a result of the incident, based on this strong evidence of misconduct.

The nature of juror Camis' misconduct is her pre-determined viewpoint the victims could identify appellant in the dark based on her own rape experience.   Appellant's sole defense was mistaken identity, predicated on the victims' inability to see their attacker in the dark house.   A juror's concealment of an experience that caused her to prejudge a defendant's sole defense is serious misconduct.   Based on the circumstances of her rape, Ms. Camis believed the victims, like herself, were able to identify their attacker.   Upon her own admission, Ms. Camis used the similarity of her experience to support her belief of the victims' identification.   This preconceived belief directly contradicted appellant's only defense.   To compound the prejudice Ms. Camis shared this experience and belief with the other jurors.   She infected the entire jury with her bias as a result.

Thus, the nondisclosure by Ms. Camis was serious because of the bias it concealed and its persuasive effect on the rest of the jury.

Finally, a high probability of actual prejudice exists.   Ms. Camis' testimony indicates jurors changed their minds after her revelation and demonstrations concerning one's ability to see in the dark.  (See section III, infra.)   She testified the jurors were “waffling” on the issue of the adequacy of the light to make an adequate identification.   At least two jurors initially were unconvinced during deliberations the victims could see in the dark.   After Ms. Camis' revelation and assertion she could identify her known attacker in the dark, and therefore these victims could also, these jurors changed their vote.

Her concealment of bias and persuasion of the hold-out jurors to reject appellant's only defense based on this bias, lead to the conclusion there is a reasonable probability of a different outcome absent the misconduct.   (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.)

Thus, a review of the entire record reveals the presumption of prejudice from the nondisclosure of bias was not overcome.   Furthermore, there is a reasonable probability of actual harm to appellant resulting from this juror misconduct.   Appellant was denied his rights to exercise his peremptory challenges and to a fair trial by the misconduct of juror Camis.   Hence, the trial court erred in denying appellant's new trial motion based on this juror's misconduct.   This error alone would require reversal of appellant's conviction.3

II. UNDER THE CIRCUMSTANCES OF THIS CASE, EVEN UNINTENTIONAL CONCEALMENT CAN BE PREJUDICIAL JUROR MISCONDUCT.

Because of the remarkable similarity of the juror's experience to appellant's case and because of the juror's resulting bias as evidenced by her comments to the rest of the jury, Diaz provides a separate and independent ground for finding prejudicial juror misconduct even if the nondisclosure of bias on voir dire were unintentional in this case.  (People v. Diaz, supra, 152 Cal.App.3d 926, 200 Cal.Rptr. 77.)

 Generally, nondisclosure of potential bias is not considered juror misconduct unless the juror intentionally concealed his or her bias on voir dire.   There are a number of factors to determine whether concealment is intentional.   First, courts review the specificity of the voir dire question to determine whether concealment of information was intentional.  (See, e.g., People v. Blackwell, supra, 191 Cal.App.3d at p. 928, 236 Cal.Rptr. 803 [during specific questioning on voir dire juror concealment of her experience with domestic violence and alcoholism held prejudicial misconduct];  People v. Kelly, supra, 185 Cal.App.3d at p. 121, 229 Cal.Rptr. 584 [because juror never asked whether victim of child molestation, no prejudicial misconduct in abuse case];  People v. Jackson, supra, 168 Cal.App.3d at p. 702, 214 Cal.Rptr. 346 [concealment personally involved in prior identical litigation not intentional because jurors asked unspecific, unartfully drawn, “catch-all” questions];  People v. Diaz, supra, 152 Cal.App.3d at p. 930, 200 Cal.Rptr. 77 [prejudicial misconduct held where juror concealed victim of a crime of “this kind”].)

Second, courts review the extent of similarity between the juror's experience and the subject case.  (See, e.g., People v. Blackwell, supra, 191 Cal.App.3d at p. 928, 236 Cal.Rptr. 803 [concealment juror also a battered wife constituted misconduct];  People v. Kelly, supra, 185 Cal.App.3d at p. 128, 229 Cal.Rptr. 584 [juror's child abuse experience was of such a “minor nature” considered nonprejudicial in a child abuse case];  People v. Diaz, supra, 152 Cal.App.3d at p. 931, 200 Cal.Rptr. 77 [juror concealment of attempted rape at knifepoint in assault with a deadly weapon case constituted prejudicial misconduct].)

Third, the courts review whether a juror disclosed the similar experience to other jurors.  (See, e.g., People v. Kelly, supra, 185 Cal.App.3d at p. 128, 229 Cal.Rptr. 584 [fact juror did not reveal bias to other jurors a factor in determination of no prejudice].)

Fourth, the courts take into consideration the juror's testimony of impartiality.  (See, e.g., People v. Diaz, supra 152 Cal.App.3d at p. 937, 200 Cal.Rptr. 77 [self-serving statement of impartiality alone does not rebut presumption of prejudice].)

 But in certain circumstances, even unintentional nondisclosure of material facts by a juror on voir dire can constitute prejudicial misconduct where the facts of the case to be decided and the facts of a nondisclosed experience of a juror are so close, bias can be reasonably inferred.   This is especially true where later statements of the juror reveal he or she has prejudged material issues in the case.  (People v. Diaz, supra, 152 Cal.App.3d at p. 931, 200 Cal.Rptr. 77;  see also, People v. Oliver, supra, 50 Ill.App.3d 665, 8 Ill.Dec. 380, 365 N.E.2d 618 [preconceived opinion on main issue in the case prejudicial misconduct whether or not the misrepresentation on voir dire was intentional];  Sego v. Mains (1978) 41 Colo.App. 1, 578 P.2d 1069 [in burglary prosecution unrebutted presumption of prejudice from juror concealment on voir dire of prior conviction for burglary, whether or not the nondisclosure was a result of a misunderstanding.].)

Appellant, relying primarily on People v. Diaz, supra, 152 Cal.App.3d 926, 200 Cal.Rptr. 77, contends Ms. Camis' concealment of her prior assault constitutes prejudicial juror misconduct, regardless whether the information was unintentionally or mistakenly withheld.

In Diaz, the defendant was on trial for assault with a deadly weapon upon a woman victim.   All jurors were asked if they had been a victim of a crime of “this kind.”   During trial, counsel learned a juror had concealed the fact she had been the victim of an attempted rape at knife point.  (Id. at p. 930, 200 Cal.Rptr. 77.)   During the trial this juror told the bailiff and court clerk of her attack.   It was their testimony this juror was prejudiced toward perpetrators of violent crimes, especially those against women.

At a hearing to determine if there was concealed juror bias on voir dire, this juror explained her nondisclosure resulted from her failure to understand her rape as an assault with a deadly weapon.   Defense counsel made a motion to dismiss this juror and replace her with an alternate.   In the absence of an alternate, counsel moved to dismiss the entire panel.   The trial judge denied the motion, finding the voir dire question insufficiently specific to prove intentional concealment by the juror.  (Id. at p. 931, 200 Cal.Rptr. 77.)

Based on the circumstances of that case, the Court of Appeal found the pervasive effect of the juror's bias so complete the nondisclosure of bias on voir dire was prejudicial juror misconduct, whether or not intentional.   The facts of the case were virtually identical to the juror's experience.   The juror openly expressed her bias against perpetrators of violent crimes against women to court personnel.   There was also a high possibility this juror as foreman would infect the other jurors with her bias.

The appellate court found no evidence was presented to rebut the presumption of prejudice from the juror's nondisclosure of actual bias on voir dire.   Nor was the presumption rebutted by the self-serving statement of impartiality by the juror.   The court determined Diaz was deprived of his rights to an impartial jury and to a fair trial.   The juror's nondisclosure undermined the voir dire process and system of peremptory challenges.  (Id. at p. 932, 200 Cal.Rptr. 77.)   In reversing the conviction the appellate court reasoned the right to a trial by an impartial jury was too important a consideration to ignore the potential prejudice from even unintentional juror concealment of actual bias.  (Id. at p. 939, 200 Cal.Rptr. 77.)

 At the hearing on appellant's motion for new trial, Ms. Camis was asked why she had neglected to reveal she had been a victim of rape at knifepoint when asked if she had been a victim of a crime.   She replied she was “not really asked” and that the rape did not come to mind until the jury discussion on identification of someone in the dark.

Thus, while it is possible, though not probable, Ms. Camis did not intentionally conceal this traumatic event, the rationale of Diaz supports a finding even unintentional concealment of bias can be grounds for finding prejudicial juror misconduct under the circumstances of this case.

The critical facts of appellant's case and the juror's experience were virtually identical.   Both were assaults in the dark at knifepoint by a known assailant.   Appellant's only defense was mistaken identity based on the victims' inability to identify their assailant in the dark.   The juror's own experience with a nearly identical crime led her to prejudge that issue.   Based on this preconceived belief, she believed, and urged the rest of the jury to believe, these victims must have been able to identify appellant as well.   Ms. Camis' testimony reveals some jurors were influenced by her experience.

Thus, Ms. Camis' nondisclosure can be considered prejudicial misconduct, even if unintentional.   Her experience creating the bias was directly related to appellant's case.   Further, she influenced the other jurors with her bias as well.   Consequently, under the authority of Diaz and given the facts and circumstances of this case, the juror's nondisclosure, even if unintentional, can be considered prejudicial juror misconduct requiring reversal.

III. THE JURY'S EXPERIMENT WAS ADDITIONAL PREJUDICIAL JUROR MISCONDUCT.

 The trial court properly instructed the jury prior to deliberations it must decide the case only on the evidence presented, and that juror experiments were strictly forbidden.  (CALJIC No. 1.03 (1985 New).)   Juror experiments that introduce new evidence into deliberations not introduced at trial are prohibited jury misconduct.  (People v. Castro (1986) 184 Cal.App.3d 849, 853, 229 Cal.Rptr. 280;  see also, 6 Witkin & Epstein, California Criminal Law, (2d ed. 1989) Judgment and Attack in Trial Court, § 3012, p. 3709;  Annot. Juror's Tests or Experiments in Jury Room (1984) 31 A.L.R.4th 566.)   It is uncontroverted the jurors conducted an experiment when they turned off and on the lights in the jury room to determine whether they could discern each other's features in the dark.

 During the hearing on the motion for new trial, the jury foreperson testified the jury discussed the subjects of poor lighting and identification in the dark.   He testified this discussion lasted for at least one and a half days.   He further asserted the experiment was similar to going to the bathroom in the middle of the night:  “it is a question can your eyes adapt to darkness or what not, and that is certainly within everybody's experience.”   In order to resolve the issue, the jury turned off the lights to determine whether each could see or discern each other's features.

The trial judge stated “clearly there is misconduct both on the parts of Ms. Camis and the jury ․ in engaging in the switching off of the lights.”   Subsequently, the court reversed itself and determined the experiment was not juror misconduct.   The court stated the attempt to adjust lightness or darkness “is a matter of common experience” and concluded appellant received a fair trial.

We disagree the experiment is a matter of common experience and no new evidence was introduced.

First, the experiment was not conducted to determine whether eyes can be adapted to darkness.   The fact the human eye can adjust from light to dark conditions is a matter of common knowledge.   The experiment, however, was conducted to determine whether the jurors could distinguish features in the dark in order to determine whether the victims could identify appellant's features in the dark.

Instead of conducting the experiment in a controlled environment with identical conditions, this experiment was conducted during the day, while jurors were fully awake and alert and possibly while mid-day sunshine shone into the deliberation room.   These circumstances not only introduced new evidence not presented at trial, but also potentially erroneous evidence as to what one can see in the darkness of an unlighted condominium during nighttime after being awakened from sleep and while being violently attacked.

Nor can one's ability to see during a violent attack while sleeping be likened to the common experience of being able to see when going to the bathroom in the middle of the night.   This assumes ambient lighting in everyone's home is identical.   This also does not take into account the trauma, fear and hysteria the victims felt while attacked.   Also, unlike the facts of this case, one is at least partially awake when going to the bathroom in the middle of the night and therefore much more likely to be aware of his or her surroundings.

Because the experiment introduced new and quite possibly erroneous evidence on the most critical issue in the case—whether the victims could identify appellant in the dark—the conclusion is inescapable the experiment constituted juror misconduct.

This case is similar to People v. Castro, supra, 184 Cal.App.3d 849, 229 Cal.Rptr. 280, in which a juror experiment testing sensory perceptions of a critical witness was also found to be juror misconduct.4

In Castro, the Court of Appeal reversed a defendant's conviction of destroying jail property, rioting, and arson based on prejudicial juror misconduct.  (Id. at p. 857, 229 Cal.Rptr. 280.)   The prosecution's case relied primarily on one prison guard's identification of the defendant through a set of binoculars.  (Id. at p. 852, 229 Cal.Rptr. 280.)   A juror during deliberations conducted an experiment with binoculars to ascertain whether the guard could have identified the defendant.   The juror reported his findings to the jury.   Although the juror experimented with a particular powered set of binoculars at a particular distance under particular light conditions, the court held the experiment introduced new evidence not within the realm of common experience and was prejudicial misconduct.  (Id. at p. 855, 229 Cal.Rptr. 280.)

Other jurisdictions have recognized the prejudicial effect of juror experiments to verify sensory perceptions of key witnesses.   In People v. Brown (1979) 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51, identification of the defendant as the driver of the escape car in a robbery hinged on the testimony of one detective.   The detective testified he looked at the driver's face through the passenger window of the police van for the duration of a red light.   The officer was the only witness who placed the defendant at the scene of the crime and the defense concentrated heavily on the accuracy of that identification.

The defense attacked the officer's ability to observe, including the length of the observation, the lighting and whether the angle of sight allowed a person in the passenger seat of the van could observe the face of the driver of an adjacent car approximately three feet lower.

One of the members of the jury conducted a test of the visibility from the passenger seat of a van using her own Volkswagen van which is designed differently from the General Motors van the detective used.   This juror conveyed her test results to the jury and her conclusion it was possible to see the face of the driver of an adjacent car.  (Id. 423 N.Y.S.2d at 462, 399 N.E.2d at p. 52.)

The jury returned a guilty verdict and the defendant moved to set it aside on the basis of juror misconduct.   The trial court denied the defendant's motion and the appellate division affirmed, concluding the juror who conducted the test merely drew on a “common everyday situation” to test the officer's veracity.  (Id. 423 N.Y.S.2d at 463, 399 N.E.2d at p. 53.)

The Court of Appeals rejected this rationale and reversed the conviction.   First, the test was not spontaneous or coincidental but “conscious, contrived experimentation.”  (Ibid.)  The fact the juror felt compelled to conduct the exercise at all demonstrated what she could see from the passenger seat was not within her experience although she owned and regularly operated a van.

Secondly, the test was directly material to a point at issue in the trial.   The test bolstered the testimony of the sole witness to link the defendant to the crime.

Third, the juror's test created a substantial risk of prejudice to the defendant's case by “coloring the views of the other jurors as well as her own.”  (Id. 423 N.Y.S.2d at 464, 399 N.E.2d at p. 54.)

Finally, the test placed evidence before the jury which could not have been admitted at trial “because it was not comparable in location, lighting or type of van.”  (Ibid.)

Because the defendant's rights were prejudiced and the jury process compromised, the New York Court of Appeals reversed the conviction.  (See also, Smith v. State (1905) 122 Ga. 154, 50 S.E. 62 [prejudicial juror misconduct from jury reenactment to test a defense witness' testimony he saw the decedent with a knife in his hand from 50 yards away.];  United States v. Beach (4th Cir.1961) 296 F.2d 153 [prejudicial juror misconduct for jury to experiment under dissimilar conditions with adding machines to test whether the defendant in a perjury prosecution was truthful he could not hear noise made by the running of the machines from other rooms of the house.].)

The experiment in this case was also not within the lines of the offered evidence.  (Cf., Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313 [no misconduct because experiment only aided jury in weighing the evidence presented].)   The evidence offered at trial was the available outside lighting, the fact the attack occurred at night and the fact no lights were on inside the condominium.   The experiment introduced evidence of available light in the deliberation room during the day while all jurors were calm and awake.   The jury experiment thus introduced erroneous evidence the appellant could not answer or refute.   Any conclusion or deductions arrived at after this experiment are potentially erroneous, unverifiable, and unreliable.

Furthermore, this evidence went to the core of appellant's defense of inaccurate identification and was not merely a tangential issue.  (Cf., People v. Phillips, supra, 122 Cal.App.3d at p. 80, 175 Cal.Rptr. 703 [juror's home experiment regarding the solubility of baking soda was not misconduct because merely tangential to murder case and a matter of common experience.] )

 As previously stated, there is a rebuttable presumption of prejudice from juror misconduct.  (People v. Pierce, supra, 24 Cal.3d at p. 207, 155 Cal.Rptr. 657, 595 P.2d 91;  People v. Honeycutt, supra, 20 Cal.3d at p. 156, 141 Cal.Rptr. 698, 570 P.2d 1050; 6 Witkin & Epstein, California Criminal Law, Judgment and Attack in Trial Court, §§ 3012, 3069, pp. 3709, 3796.)   In assessing whether juror misconduct has been overcome, the three prong test of People v. Martinez (1978) 82 Cal.App.3d 1, 22, 147 Cal.Rptr. 208 applies.   The factors are:  (1) whether the jury's impartiality has been adversely affected;  (2) whether the prosecution's burden of proof has been lightened;  and (3) whether any asserted defenses have been contradicted.  “If the answer to any of these questions is in the affirmative, the defendant has been prejudiced and the conviction must be reversed.”  (People v. Martinez, supra, 82 Cal.App.3d at p. 22, 147 Cal.Rptr. 208, accord, Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.) 5

 The appellant has a right to a jury trial by impartial jurors.   The jury's impartiality was affected by the experiment.   The purpose of the experiment was to prove one could identify an attacker in the dark.   This juror misconduct occurred during jury disagreement on the adequacy of lighting and the victims' ability to identify appellant.   Evidence the minority jurors changed their votes after the experiment supports the finding the jury's impartiality was adversely affected.6

The prosecution carries the burden of proving the defendant's guilt beyond a reasonable doubt.   Respondent contends it carried its burden by presenting ample evidence on the adequacy of the lighting.   This assertion is refuted by the evidence the question of the victims' ability or inability to see in the dark was still very much in dispute after almost two full days of deliberations on the issue.

The new evidence the experiment introduced for the purpose of proving the jurors could identify features in the darkened jury room supported the prosecution's case and resolved questions of credibility the defense had no opportunity to challenge.   Thus, the prosecution's burden to prove beyond a reasonable doubt appellant was the assailant was lightened by the persuasive and erroneous experiment.

Appellant maintained throughout he was not the attacker and the victims' identifications of him in the dark were erroneous.   All parties recognized this issue as the very essence of the case.   No knife was found and no blood stains were found on the appellant's clothes or shoes that at least Ms. Burton allegedly saw that night.   Nothing was presented to establish appellant's presence at the crime scene but the in-the-dark identification by both victims.   The asserted defense of erroneous identification was directly contradicted by the improper and probably misleading experiment which indicated one could see in the dark.

The identification issue was central in determining the appellant was at the crime scene.   It was an issue the jury could not decide unanimously on the evidence as presented.   They conducted an experiment to resolve the issue.   The jury experiment introduced new evidence the appellant was unable to refute or move to exclude.

Because the jury's improper experiment adversely affected juror impartiality, lightened the prosecution's burden of proof and directly contradicted appellant's defense, we find appellant's case was prejudiced and he is entitled to a new trial.7

DISPOSITION

The judgment is reversed.

Only by transforming guilty verdicts into balloons, balloons which explode if a juror turns off the light, balloons which explode if a juror does not answer a question no one asked her—does the majority opinion reverse this judgment.

A great injustice has been done by the reversal of this judgment and I must dissent from it.

Originally I joined in the majority opinion.   I accepted its recounting of the facts and did not doubt its statement of the law.   But something about the case troubled me.   I took a closer look.   Finally, I carefully examined the entire record ․ and changed my mind.

In my view, the majority opinion misstates both the facts and the law.

Because I later fully set forth the accurate facts, I will not attempt here to separately itemize all the inaccuracies in the majority opinion.   One illustration will suffice.

The majority opinion states:  “According to Ms. Camis' testimony, a few jurors changed their vote after her revelation.”

Although the majority opinion does not quote the testimony of Mrs. Camis which supposedly supports its assertion (because there is no such testimony), it may rely on the following exchange of questions and answers.

“Q. Now, at the time that conversation took place [Mrs. Camis telling about having been raped], can you recall there were particular jurors who were saying that the lighting wasn't good enough in this case?

“[Mrs. Camis]:  There was—yeah, there was more a question of where the light was coming from and if there was adequate light.

“Q. [By defense counsel]:  Can you tell me how many jurors were arguing there wasn't enough light?

[Objections caused defense counsel to reframe the questions as follows.]

“Q. [By defense counsel]:  At the point in time when you brought up the incident involving yourself.

“[Mrs. Camis]:  No. [¶] I don't remember and, you know, we just, you know I related that, and then we just went on about—I think it was after that that Mr. Nellis made the charts up or they started drawing out the layout of the rooms and actually Miss Holland was demonstrating where the light was coming from.

“Q. [By defense counsel]:  Now, was Miss Holland one of the people that was arguing against larger number of jurors?

“A. [Mrs. Camis]:  Yeah.

“Q. [By defense counsel]:  And was Miss Star doing that as well?

“A. [Mrs. Camis]:  Some what, yeah.”

This testimony does not establish that there had been a vote before Mrs. Camis told about having been raped.   Nor does it establish that “a few jurors changed their vote after her revelation.”

Mrs. Camis testified that telling about being raped took “one minute.”  No juror asked questions about her experience and there was no discussion about it.   When she finished her brief story the jurors resumed their discussions about the adequacy of light in the Burton–Moore condominium.   As indicated by the just quoted portion of Mrs. Camis' testimony, “Miss Holland was demonstrating where the light was coming from.”

It was at least some hours after Mrs. Camis' one minute story that the first and only perpetrator visibility vote was taken.   That vote was unanimous.   There was no evidence that Mrs. Camis' story influenced juror deliberations.   And since there was only one vote, it could not have, as the majority opinion incorrectly states, changed the vote of “a few jurors.” 1

THE FACTS

Leslie Burton lived with her roommate Ardith Moore in a two-story condominium at 3118 LaSalle Avenue in Los Angeles.   Leslie Burton was divorced and had a seven-year-old son.   Ardith Moore was married.   Her husband, who apparently did not live with her, was hospitalized.

Leslie Burton met appellant in July 1987.   Because appellant was a truck driver and frequently out of town, they didn't begin dating for several weeks, until mid-August 1987.   Thereafter, they would see each other when appellant was in town, every weekend or every other weekend.   When appellant was not in town he would telephone Leslie Burton every day or every other day.

In January 1988 appellant and Leslie Burton broke up for a month and a half.   As Leslie Burton testified:  “We decided to just separate and just kind of be to ourselves because we weren't getting along ․ but I [ ] talked to him a few times within that period over the phone.”   The rift was caused, according to Leslie Burton because appellant “was jealous and he had ways of being possessive where I was concerned.”

In February 1988, around Valentine's Day, they resumed their relationship.   In March 1988 appellant's truck driving schedule changed and Leslie Burton saw him “a little bit more through the week.”

Sometime in March 1988, on a Sunday after church, appellant went to the Mandarin Cove restaurant with Leslie Burton, Ardith Moore, and a friend named Karen.   The restaurant had personalized “Mandarin Cove” matchbooks.

Ardith Moore testified that before April 23, 1988, on at least two occasions she “sat down with Larry [appellant] and talked to him extensively․  [T]hey would have problems in their relationship every once in awhile ․ and the conversation would basically be about his possessiveness.  [¶] He seemed to be possessive of her and jealous and he had problems with it ․ it was affecting their relationship.  [¶] Leslie didn't want to be possessed and the jealousy was bothering her because it was—he seemed to be jealous of her friends ․ he seemed to be jealous of her spending time with other people other than himself.  [¶] And Leslie is very friendly, and she has a lot of friends, and she likes to spend time with all of her friends, and so it put a damper on her because she couldn't understand why he would get jealous of her spending times with her other friends.”

On Friday, April 22, 1988, around 7:30 a.m. appellant telephoned Leslie Burton.   During the conversation he told her he was in Texas.   Because of rules restricting driving hours, appellant knew that Leslie did not expect him to return to Los Angeles Saturday morning, April 23, 1988.   When the conversation ended, according to Leslie Burton “I wouldn't say we were on good terms because we had ended our conversation with an argument.”   Appellant characterized the status of the relationship as “shaky.”

When she finished talking to appellant Leslie Burton went to work.   Her son was not home because he was spending the weekend with her brother and his family.

That evening, after returning home, Leslie Burton went out.   She picked up a friend, Lyndel Vause, and went to a nightclub in Hollywood where a friend was singing.   They, along with eight or more other friends, including Ardith Moore, stayed until closing time, talking with their singer-friend.   They all left together, about 2:15 a.m. (Saturday, April 23, 1988).

Leslie Burton and Mr. Vause went across the street and got hamburgers, french fries, and sodas “to go.”   They returned to her condominium.

In order to park her car in her garage, Leslie Burton drove into the adjoining alley and first pushed one button on her “opener” to open the sliding wrought iron gate, and then pushed the other button to open her garage door.   She parked, closed the garage door, and she and Mr. Vause went inside.

Because she had had her contact lens on for a long time, Leslie Burton went upstairs to her bathroom to remove them.   Mr. Vause remained downstairs and warmed their food in the microwave.   It was now about 3 a.m.

As Leslie Burton described it:  “I hadn't been upstairs long.   No more than about three to five minutes at the most, and he [Mr. Vause] told me that there was a gentleman at the door, and he described him, and I came downstairs to see who it was, and it was Larry Evens [appellant].”   She continued:  “I opened up the door kind of surprised because it was early in the morning and I wasn't expecting him.”

She introduced appellant to Mr. Vause and again went upstairs to the bathroom.

Appellant testified that when he entered there was “a little guy” [Mr. Vause] inside.   Appellant's lawyer then asked him, “How did you feel about that?   Did you have any emotional reaction to [Mr. Vause] being there?”   He answered:  “Not really.   I was upset about it, sure, you know by him being there, but it wasn't nothing to be unexpected of the situation at the time.”

Appellant followed Leslie Burton upstairs and into her bathroom.   He started questioning her “about who Lyndel [Vause] was” and she told him “he was a friend and we had all been out that evening together.”   Leslie Burton testified that then “before I knew anything he had started beating me in my face and beating me in my head.  [¶] He started fighting me with his fists.”

She ran down the stairs, hollered to Mr. Vause to call the police, and ran to the front door.   That door had two locks, the upper one being a dead bolt lock with a key inserted on the inside.   She turned that key, opened the door, and ran outside.

Appellant ran after her and chased her around a car parked across the street.   Leslie Burton “was yelling and screaming for him to leave me alone and I was yelling and screaming for help.”

After appellant had chased her around the car “at least five times” he was out of breath and walked back toward the condominium.

Mr. Vause then came outside and he and appellant talked to each other.   According to appellant, Mr. Vause “came to me and started cursing me out.”   Leslie Burton gave a different account.   She said Mr. Vause told appellant “he didn't know why he was getting upset.”

The scene was also observed by Stacy Williams, a neighbor who lived directly across from Leslie Burton and Ardith Moore.   Ms. Williams had been disturbed by the loud argument, went to her window, and saw appellant, Leslie Burton, and Mr. Vause.   After appellant stopped chasing Leslie Burton, according to Ms. Williams, appellant walked over to Mr. Vause, who was standing by a tree, and said something to him.

What happened next was not in dispute.   Leslie Burton testified, “Larry [appellant] hauled off and hit him in the face.  [¶] And then he hit him again and then Lyndel fell down and if I can remember correctly he stood back up and he pulled a knife out on Larry.”

Appellant testified that because of Mr. Vause cursing him, he “retaliated”:  “I hit him twice upside the head.”

When Mr. Vause produced a knife appellant ran to his car, parked in front of the condominium, and opened the trunk.   Mr. Vause ran over to Leslie Burton and said “Let's get out of here and go for help because this man, you know, being [sic] too violent.”

Leslie Burton and Mr. Vause ran past at least four houses, “jumped over a fence to another home and [ ] asked these neighbors to call the police.”   They stayed in front of this neighbor's house until the police came.   At least three police cars came, one with appellant in the rear seat.   Leslie Burton made a “citizen's arrest” and the police transported appellant to the police station.

From the time Leslie Burton and Mr. Vause ran away from appellant until they walked back to the condominium, after appellant had been arrested, about 30 minutes had passed.

During this 30 minute period Stacy Williams stayed by her window.   She saw appellant open his car trunk and saw Leslie Burton and Mr. Vause run away.   She saw appellant run after them for a short distance.   After a few seconds she saw appellant return to his car.   He had nothing in his hands.   Appellant again went in his trunk and this second time pulled out something that “looked like a hammer.”   Ms. Williams “ducked down ․ for not a long period of time but a little while.”   Then she “heard glass break.”   After hearing the sound of breaking glass, Ms. Williams “came back up” and saw appellant come out the open front door of the Burton–Moore condominium.   By this time “you could hear the police coming.”   Appellant got in his car and drove off.   Ms. Williams later saw that the police had apparently arrested someone.   When Leslie Burton and Mr. Vause returned, Ms. Williams went outside and told Leslie Burton that the police “had caught somebody.”

When Leslie Burton returned and entered her condominium, she closed the door.   Then, she testified, “I wanted to lock the door but the key was missing out of the front door and what I did I immediately called the police department where they were taking [appellant].  [¶] After I called the police to notify them that he took the key, I went downstairs in the garage where I parked my car because we have a garage underneath the condo.  [¶] I noticed that all my car windows were smashed out except for maybe two.”  [¶] [T]here was glass all around․”

Leslie Burton did not notice whether or not her opener, which she kept clipped to the passenger side visor, was still in her car.

At about 3:30 a.m. Ardith Moore returned home and saw Leslie Burton and Mr. Vause.   Leslie told her what happened.

Later that morning, around 8:30 (Saturday, April 23, 1988), appellant made bail, was released, and telephoned Leslie Burton.   Ardith Moore answered the phone.   The operator said she had a collect call for Leslie Burton from a Ronald Burton.   Ronald Burton was the name of Leslie's former husband.   Ardith Moore gave the phone to Leslie who told appellant never to call again;  she refused to talk to him.   Ardith Moore told appellant he had her keys and she wanted them back.   He denied having them and she told him she was going to change the locks and then hung up on him.

Later, during that day, appellant again called Leslie Burton.   She did not talk to him.

At about 10 a.m. that same morning Ardith Moore unscrewed the dead bolt locks from the front door and from the rear door, which connects the garage to the condominium.   She had the locks changed and reinstalled them.

On Sunday, April 24, 1988, appellant again called Leslie Burton.   She heard his voice and unplugged the phone.

On Monday, April 25, 1988, appellant did not work because he was “over hours.”   That morning Stacy Williams had to take her child to a babysitter and go to school.   At 7 a.m. Ms. Williams drove her car from her garage into the alley which adjoins the Burton–Moore condominium and her own condominium.   She pulled behind a car parked in the alley which she described as a 1987, 1986 Ford with “a funny color ․ like a pink and white mixed together.”   The driver “turned around and looked—Mr. Evens [appellant] turned around and looked, and then he pulled off.”   Ms. Williams recognized appellant's car from “the night before when Mr. Evens had been chasing her down the street, Leslie down the street.”

Appellant denied being near Leslie Burton's condominium on April 25th but conceded the Ms. Williams' description of his car was accurate:  it is a “Ford car, Mercury Sable” and metallic pink in color.   Detective Zamora later testified it was a 1987 Mercury Sable.

During the evening of Monday, April 25, 1988, Leslie Burton and Ardith Moore went to the hospital to visit Mrs. Moore's husband.   Mrs. Moore drove her car because the windows of Leslie's car had not yet been repaired.   They returned about 11 p.m. and retired to their separate bedrooms around midnight.

Leslie Burton's bedroom was small.   It had bunk beds near two large windows.   The blinds were kept open.   At 3 a.m. Leslie Burton was sound asleep on her right side, in the lower bunk bed when, she testified, “I felt my hands, you know, being gripped, and then I felt being cut down my face.”   The cut was on her left cheek, a 5 inch long curved line to the corner of her mouth, one quarter inch deep.

Leslie Burton testified that “when I was being cut down my face ․ I looked up and I was screaming because it hurt and I was in shock.  [¶] And I looked up and it was Larry [appellant] standing over me.”   Asked how close appellant was to her, Leslie testified “It was very close because the bed was low and he was just bent over me.  [¶] Kind of like face to face ․ he wasn't feet away.  [¶] Maybe inches.”

There were no inside lights on.   But outside Leslie Burton's window “there is a light that lights up the whole parking lot.”

Leslie Burton testified that she “was struggling trying to get out of bed and away from him” and “was screaming, telling him to leave me alone.”   She continued, “And he answered me back and he said, ‘Uh-huh, if I can't have you, no one else can.’ ”

This examination then occurred:

“Q. And you clearly heard him say that?

“A. Yes, I did.

“Q. Was there something about his uh-huh, that caught your attention?

“A. Well, that's just a normal—that's a word that he always uses in his conversations.”

The struggle continued.   Leslie Burton got out of bed, stood up, and was “pushed back real hard but ․ I wasn't pushed, I was stabbed again in my left chest, in my left breast.”   Shortly after this, Leslie testified, “Ardith Moore, my roommate ․ met up with us.”

At 3 a.m. Ardith Moore had also been sound asleep.   She “woke up to Leslie screaming, and it wasn't loud screaming, but she was screaming and I thought she was having a nightmare.  [¶] I heard her saying, ‘No, no Larry.   No, no, no.’ ”

Ardith jumped out of bed and ran into Leslie's bedroom.   She expected “to see Leslie by herself having a nightmare․”  What she saw was “Larry bending over her ․ I saw the side of him almost side back bending over her․”  Her first thought was “my God, how could he get in here․  [¶] because my place I consider kind of like a fortress.  [¶] I have bars on the front of my window and everything else is on a higher level.  [¶] The front door is the only thing on the street level other than the garage, and that [sic] I have a garage door opener, and it has a special lock.   You can't get in there.  [¶] My very first thought was how did he get in here.  [¶] I don't understand how Larry got in here.”

Asked how she could see appellant with no lights on in her condominium, Ardith Moore gave the following answer:

“The way my condo sits, there are—it is well lit around the area, and the back of my condo, which is where Leslie's bedroom is, her back window she always leaves her mini blinds open, and in that back area that wall faces the back of another condo complex so that is the garage area and it is a security area, so there are lights on both of those buildings.

“Therefore, there are lights—there are three lights across from her bedroom window, and then three lights on my building to light up that area.

“And then her blinds were open, and then directly across from Leslie's bedroom, if you follow, my bedroom window faces the street, and there is a street light on the right across the street, and there are three—there is a complex right across the street over there, and that complex has five apartments in it, and there are three amber colored lights, amber colored lights really illuminate the street, so there are three big amber lights on that building and also the people across the street have their lights, their porch lights on also, and I didn't have curtains.

“I had sheers on that window, and so the area is well lit, and then the TV room, bedroom, the blinds stay open in there, and there are lights on that side also.

“So it is light enough to see who is who.”

Ardith Moore was then asked how long it took her to recognize appellant and how she was able to recognize him.

She answered:  “I immediately knew it was Larry Evens.  [¶] Larry is not a hard person to spot.   He is very sizeable.   He is very big, and he has distinct features.  [¶] He has a wide sort of neck and a round head and very very broad shoulders, and when I saw him leaning over her, I could see his semi [sic] of his profile, and I immediately recognized his features.  [¶] And when he stood up, I mean, I never had any question that it wasn't [sic] a burglar or somebody who just broke in.  [¶] I never had a question in my mind.”

When Ardith Moore ran into Leslie's room she said something like, “Leslie, Leslie, what is wrong.”   That's when appellant “immediately stood up and ․ turned and [Ardith] could see the expression in his face.  [¶] He looked startled․”  They were about 2–3 feet from each other, “within arm's reach.”

Ardith Moore testified, “He immediately started beating me.  [¶] Hit me in my face and knocking me backwards immediately, and there was an angered expression on his face, and he just kept hitting me and punching me, and I kept falling backwards.”   She didn't, then, see anything in his hands and felt only his “fists hitting me on my face and on my head and on my upper body parts.”   By this time Ardith Moore and appellant were in the hallway.   Leslie, Mrs. Moore testified, “was right behind him” screaming “Stop, Larry, stop, stop.”

The hallway was very narrow.   While appellant “was standing right in the middle of that hallway” he blocked the staircase and Leslie could not get “past him to get out.”   But as appellant continued his assault upon Ardith Moore she was driven towards and then into her bedroom, with appellant following her.

With appellant no longer blocking the hallway Leslie Burton started to run down the staircase.   Appellant, who had turned away from Ardith Moore and returned to the hallway, stabbed Leslie on her arm and from her “backbone to [her] buttocks.”   As she continued down the stairs she heard “Ardith screaming and I heard a lot of struggling, bumping ․ and I heard her screaming.”   Leslie ran out the front door, outside, and to a deputy sheriff-neighbor around the corner.   He called the police.

After appellant had left Ardith Moore in her bedroom to resume his attack on Leslie, Ardith got up, went into the narrow hallway, and tried to get around appellant to go down the stairs.   She could not.

Appellant again “turned his attention back to [her].”   He started hitting her again and she “saw a knife blade and I recall screaming with terror ․ I remember ․ him just slashing at me․”

Ardith Moore testified, “and I remember seeing his face and there was like rage in his face, like a determination.   I can't explain it.  [¶] It was just there was just a determination in his face, his expression, it was like the first time when he looked kind of startled when I ran in there.  [¶] It was like a viciousness or determination to stop me to get me.  [¶] I don't know.   And so I just remember screaming and he was—I was falling.   I kept falling back into my room again․”

Ardith fell against her sliding closet doors, knocked them off, and fell into her closet.   At about this time Ardith became aware that Leslie “was no longer screaming․  I no longer heard her and at that point he turned away from me and ran out of my room.”   She heard appellant run down the stairs.

To the question, “What did you do” after appellant ran down the stairs, Ardith Moore gave this answer:

“I remember sitting on my bed for a minute, and I was just trying to collect myself, and I was frightened because I—in my mind I thought he was downstairs killing my roommate, and he was going to come back up and get me, and I was afraid to move.

“I just sat there for awhile, and then I realized I heard something running like a faucet running and I couldn't figure out [what] it was, and then I realized it was blood running from my head because my artery got cut, and so I thought, oh, my God, I got to stop this bleeding.   I got to call the police.

“And I remember grabbing my phone and making my way to the bathroom, but I was so dizzy I could hardly make it.

“I got to the bathroom, and I remember turning the light on at that point, and when I turned the light on, the first thing I saw were the cuts on my arm, real deep cuts on my arm, and it was gushing and my head was just dripping into the sink and every place.”

Ardith had to wipe her blood off the phone to call 911.   As she testified, “I finally got through to 911, and I remember giving them his name and saying that two women are stabbed.

“I gave the address, 3118 LaSalle Avenue, two women are stabbed.   Please come quick.

“The person who did it was Larry Evens.   Please come quick.

“I just remember repeating myself a lot.”

The first help to arrive was the paramedics.   Ardith managed to go downstairs, open the front door, and with their help, sit on the front steps.   While they took her vital signs, bandaged her head and arms—two police officers arrived and entered her condominium.

The prosecutor concluded her direct examination by asking Ardith Moore if and why she was sure of her identification of appellant.   Mrs. Moore gave this answer.

“Absolutely.

“Because I know Larry.   I know how he is.   I know how he looks.

“I mean I spent at least twenty times in his presence.

“I have very good eyesight.   20–20 vision.

“I was right there.   He was within my reach.   I could see his face.

“I could see his expression.   I could hear him breathing.

“He had been in my place many times.   I had seen him at night before in my place.

“So I knew him by his size, his structure, his shape, the sounds of his breathing.

“I could see him.   It wasn't like it was a questionable distance.

“We were right there.   I had no doubt in my mind.

“The first thing I though when I saw him is how did Larry get in here.

“I had no doubt, like, oh, my God, there is a man in my place.

“There was no doubt.   I laid my eyes on him.   I focused on him.   I saw him.

“I saw his expressions, his features.   I never had any doubt it was anyone else.”

Both Leslie Burton and Ardith Moore were taken by ambulance to the county hospital.   Leslie Burton remained there for two days and was then transferred to her Kaiser hospital where she remained for nine more days.   In the attack her left lung had been punctured and had collapsed.

Ardith Moore had stab wounds to her chest, arms, head, neck, and back.   The back wounds punctured and collapsed both of her lungs.

One of the two police officers who entered the condominium while Ardith Moore sat bleeding on her front steps, was Officer John Hall.   He and his partner “were trying to figure out how the point of entry was into that location.”

In the garage wall, next to the door leading into the condominium, Officer Hall saw a hole.   It was rectangular, at door knob height, and had been cut with a knife.   Photographs (Exhibit 2) showed it was large enough to allow an arm to reach through and grasp the inside door knob.

Other photographs (Exhibit 13) showed wall plaster fragments on a garage carpet beneath the cut hole.   On that same carpet was a “Mandarin Cove” matchbook and many burnt matches.

As Officer Hall and his partner left the Burton–Moore condominium, Officer Hall saw a garage door opener laying on the floor by the front door.

Later, the investigating officer recovered that opener.   Leslie Burton identified it as hers, the one she had kept clipped to the passenger visor in her car.

Three days after the attack on Leslie Burton and Ardith Moore, the investigating officer called the Placentia police department and asked them to arrest appellant.   Two Placentia officers went to appellant's place of work and arrested him.   They seized some of his clothes from his car and from the cab portion of his truck, where he slept and lived.   No knife was found.   The seized clothes did not contain blood stains.

The only defense witness was appellant.   He admitted the 3 a.m. April 23rd argument but denied striking Leslie Burton and denied re-entering her house and breaking her car windows.   He denied ever having a conversation with Ardith Moore about problems with Leslie Burton and denied being jealous or possessive of Leslie.   He testified he did not work Monday, April 25 or Tuesday, April 26.   On Monday evening, April 25, he went to bed alone in his truck cab and then went to sleep.   He awoke at 4:30 a.m. on April 26.   He stated he is 5′11 1/2″ tall and in April 1988 weighed 265 pounds.   On cross-examination he admitted having worked on installing sprinkler systems in buildings and being familiar with wall construction and stud placement.

Appellant did not deny that he had been in the Burton–Moore condominium on innumerable occasions before April 26th, nor did he deny that on many such occasions there were no inside lights on.

Appellant did not dispute the lighting condition description given by both Leslie Burton and Ardith Moore.

As Ardith Moore testified, appellant's trial counsel (accompanied by the prosecutor and an investigator) personally observed the lighting conditions in her condominium with all the lights off.   No defense evidence was presented to dispute the lighting condition description testified to by Mrs. Moore and Ms. Burton.

The defense was alibi and mistake.   Appellant's trial counsel conceded the sincerity of both Leslie Burton and Ardith Moore, arguing to the jury:  “They are honest.   No question.   The issue is in this case are they accurate.”   The defense did not attempt to explain the garage door opener, the “Mandarin Cove” matchbook, Stacy Williams' testimony (seeing appellant with a hammer, hearing glass break and then seeing appellant leave the condominium), or who besides appellant could have or would have smashed Leslie's car windows and later deliberately disfigured her.

DISCUSSION

On December 19, 1988, the jury returned their verdicts and were excused.   Almost a month later, on January 13, 1989, appellant's trial counsel telephoned the jury foreman, Mr. Nellis.   On January 19, 1989, he telephoned another juror, Joyce Camis.   And on January 25th he personally met with Mr. Nellis.   Based upon his conversations with these two jurors defense counsel moved for a new trial.   He alleged two instances of jury misconduct.   It is these two instances of alleged jury misconduct appellant urges on appeal.

I begin by considering one, the “lights off” instance of alleged jury misconduct.

The “lights off” alleged jury misconduct

Appellant's motion for new trial was heard on February 24, 1989.   Two jurors, Mr. Nellis and Joyce Camis, testified but only Mr. Nellis testified about the circumstances of the “lights off.”

To provide context for Mr. Nellis' testimony, the pertinent portions of which I shall quote, I note that jury deliberations initially began on Wednesday, December 14, 1988.   But on Thursday, December 15, 1988, a juror was absent and was replaced by an alternate juror.   The court instructed the jury to begin their deliberations anew.   Thus, the first day of jury deliberations was actually Thursday, December 15th.   The second was Friday, December 16, an abbreviated day, the jury being excused at 2:55 p.m.   The third and final day was Monday, December 19, when at 1:35 p.m. the jury returned their verdicts.

In attempting to reconstruct the who, why, when, and what of the “lights off” incident, Mr. Nellis relied upon notes he had made on January 25, the day appellant's trial counsel met with him.   Understandably, his reconstruction of a brief, five-week-old event was not total.

The who was easy.   He testified as follows:

“Q. Can you recall whose suggestion it was to turn the lights out?

“A. If I can refer to my notes, I could.   I think it was Greg Fowler.

“Q. Certainly.

“A. I tried to write down names and things like that.  [¶] I think it is Greg Fowler, yes.”

The why was not directly answered since juror Greg Fowler, who had suggested turning the lights off, did not testify.   However, two portions of Mr. Nellis' testimony at least provide context for the “lights off” suggestion.   Asked what was done when the jurors “did something with the lights,” Mr. Nellis answered:

“A. The subject under discussion was the placement of the defendant as the perpetrator—

“Q. Let me interrupt.

“A. —in poor light.”

Later, again with apparent reference to the pre-lights-off discussion, Mr. Nellis stated:  “The subject is [sic] when if lighting is poor, can I see, can I see you and can you see me.”

The question of when the lights were turned off, despite some confusion caused by appellant's trial counsel,2 can be answered with reasonable certainty.

Mr. Nellis made clear that of the approximately two and one-half days of total deliberations, the perpetrator identification issue was “intensely discuss [ed]”—and decided—during the first day and a half.   It was during this first day and a half period, more precisely “two-thirds of the way through the day and a half,” that the “event took place.”   Mr. Nellis repeatedly stated it was Friday, in the morning, when the lights were turned off.3  A reference point for Mr. Nellis was the “perpetrator identification” vote, which also occurred on Friday.   He testified, “As I recall, the decision that we reached unanimously that placed Mr. Evens at the scene of the crime was reached in the morning.  [¶] That decision enabled us to proceed through certain verdicts.   [¶] Then we recessed for lunch.”

Accordingly, the reasonably certain answer to the question—when were the lights turned off—is:  Friday morning, December 16th.

Finally, Mr. Nellis answered the what question by first describing jury activity before the lights were turned off.   He testified as follows:

“There was much to do during the trial, in fact, you [appellant's trial counsel] raised the issue as to the incident of the lighting from exterior sources, the security lamps and the street lamps, and the jury spent a lot of time using the floor plans of the upper floor of the condominium and the testimony to determine if the lighting was sufficient under the testimony to identify Mr. Evens.

“Q. Let me ask you this:  [¶] Did you, in the jury's discussions, did you talk about the separate sources of lighting that had been described during the testimony?

“A. Yes, that's affirmative.

“Q. There were I believe, and you correct me if I am wrong, three various sources of lighting?

“A. Yes, I agree with that.

“Q. And you discussed whether the lighting from source one would be adequate or not?

“A. Yes.

“Q. And you did the same as to source two?

“A. When you say one and two, that is kind of subjective.  [¶] The first primary source of light my recollection was into victim number one's bedroom, when she was being attacked, and it was very well lit as I recall from the security light.”

Mr. Nellis also made clear that during the jury's first day of discussions before the lights were turned off, no juror had taken the position the perpetrator was not visible.

“Q. And in the days preceding that had it been, had there been certain people in the jury who were taking the position that he wasn't visible, saying that?”

“A. No.”

On that Friday morning, Mr. Nellis testified, “[o]ne of the jurors was at the entrance to work the light switch but the other jurors were seated․  The jury room ․ has three persons on the side around a table.”

For how long a time did the lights remain off?   Mr. Nellis testified it was “a couple minutes,” “[p]ossibly two minutes.”

Did the jurors talk during those “possibly two minutes” of “lights off?”   Apparently not, as indicated by the following question and answer:

“Q. Then while the lights were out, was there a discussion among the jurors about what perceptions were possible?”

“A. No.”

How much light remained with the “lights off” and from what source?   No one asked so Mr. Nellis did not say.   But he did state:  “So for a period of a couple minutes the lights were out and indeed people could see each other.”

When the lights were turned on, what did the jurors say?   This is Mr. Nellis' testimony:  “[I]t was ․ pointed out when the lights went back on, that these experiments are no different than anybody in their own home getting up in the middle of the night and going to the bathroom.  [¶] It is a question can your eyes adapt to the darkness or what not, and that certainly is within everybody's experience.”

Was there a link between this silent two minutes “lights off” period and the “perpetrator visibility” vote?   Mr. Nellis' testimony indicates there was none.   He stated.

“I would say that event [“lights off”] took place two-thirds of the way through the day and a half that we were really intensely discussing this really serious issue [“perpetrator visibility”].

“Q. And then there was a third more, if we can call it that, of discussion before a poll was actually taken?”

“A. Oh, yeah.

“Q. A poll was not taken immediately after?

“A. Oh, no, no, no, no, no.”

In summary, one must decide whether, as appellant contends, this silent two minutes of jury room “lights off” requires a reversal of the judgment.

Standard of review

Here—where we review both alleged jury misconduct and an order denying a motion for new trial—there are multiple standards of review.   They are not necessarily consistent.

First, there is section 1181.   It provides:  “When a verdict has been rendered ․ against the defendant, the court may, upon his application, grant a new trial, in the following cases only:  ․ 3.   When the jury has ․ been guilty of any misconduct by which a fair and due consideration of the case has been prevented;”  (Emphasis added.)

Second, there is the long established proposition that jury misconduct raises a presumption of prejudice and unless that presumption is rebutted the defendant is entitled to a new trial.  (People v. Miranda (1987) 44 Cal.3d 57, 117, 241 Cal.Rptr. 594, 744 P.2d 1127;  In re Stankewitz (1985) 40 Cal.3d 391, 402, 220 Cal.Rptr. 382, 708 P.2d 1260;  People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91;  People v. Honeycutt (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050.)   This proposition, one notes, does not embrace the “by which a fair and due consideration of the case has been prevented” qualification of section 1181, subdivision 3.

Third, although a rule of evidence, not a standard of review, is Evidence Code section 1150, subdivision (a):  “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.   No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

This provision prohibits the rebuttal of presumed prejudice (from jury misconduct) by evidence of juror mental processes.  (People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132; 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 3052, p. 3775.)

Fourth, is the “abuse of discretion” standard applicable to motion for new trial review.  “ ‘The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’ ”   (People v. Williams (1988) 45 Cal.3d 1268, 1318, 248 Cal.Rptr. 834, 756 P.2d 221;  see also People v. Villagren (1980) 106 Cal.App.3d 720, 729, 165 Cal.Rptr. 470 [“The determination of a motion for a new trial rests completely within the discretion of the trial court;  on appeal, its ruling will not be disturbed unless manifest abuse of discretion appears.”];  People v. Orchard (1971) 17 Cal.App.3d 568, 574, 95 Cal.Rptr. 66 [“An allegation of jury misconduct raised on a motion for new trial presents a question of fact for the trial court.”];  Bardessono v. Michels (1970) 3 Cal.3d 780, 795, 91 Cal.Rptr. 760, 478 P.2d 480 [Justice Tobriner stated:  “The trial court considered this evidence;  it denied the motions for new trial.   Ample evidence supported its finding․”];  People v. Maldonado (1963) 220 Cal.App.2d 923, 925, 34 Cal.Rptr. 311;  People v. Sarazzawski (1945) 27 Cal.2d 7, 15, 161 P.2d 934.)

Fifth, applicable to presumed prejudice, is the three-part Martinez test.   The appellate court reviews the entire record and determines whether (1) “the jury's impartiality has been adversely affected” (2) “the prosecution's burden of proof has been lightened” and (3) “any asserted defense has been contradicted.”   If any of the three conditions has occurred reversal is mandated.  (People v. Martinez (1978) 82 Cal.App.3d 1, 22, 147 Cal.Rptr. 208.)

The multiplicity and incongruence of these rules, as well as the occasional bizarre results they produced (e.g., People v. Casto (1986) 184 Cal.App.3d 849, 229 Cal.Rptr. 280), has caused our Supreme Court to evolve a new test.

In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 418, 185 Cal.Rptr. 654, 650 P.2d 1171, Justice Mosk stated:  “We take this opportunity to emphasize our unwillingness to allow the impeachment of jury verdicts on a bare showing that some jurors failed to conform their conduct to the ideal standard of utmost diligence in the performance of their duties.   Even the most diligent juror may reach the end of his attention span at some point during a trial and allow his mind to wander temporarily from the matter at hand.   We do not condone such conduct and trust that trial courts will be alert and take appropriate action if it occurs.   But we recognize that this is especially likely to occur in such a complex and lengthy trial as the case at bar.   Retrials are to be avoided unless necessitated by a more substantial dereliction of jurors' duties than was evident in this case.  ‘Society has a manifest interest in avoiding needless retrials:  they cause hardship to the litigants, delay the administration of justice, and result in social and economic waste.’ ”

Hasson then reformulated the test for rebutting jury-misconduct-presumed-prejudice.

“[T]he presumption is not conclusive;  it may be rebutted by an affirmative evidentiary showing that prejudice does not exist 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 resulting from the misconduct.  [Citations.]  Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.”   (Id. at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.)  (Emphasis added.)

Under Hasson, although jury misconduct creates a presumption of prejudice (regardless of how trivial that “misconduct” may be) which no “evidentiary showing” may have rebutted, the complaining party is no longer automatically entitled to a new trial.  Hasson creates an additional requirement in order for such “presumed prejudice” to compel a reversal.   It—based upon an “examination of the entire record”—must have created a “reasonable probability of actual harm to the complaining party.”   This new test applies to criminal cases.  (Ibid.)

The Hasson “reasonable probability” test was modified by Justice Mosk in People v. Marshall (1990) 50 Cal.3d 907, 269 Cal.Rptr. 269, 790 P.2d 676.   Writing for a unanimous court, and adopting the American Bar Standard, he wrote:  “Whether or not the presumption of prejudice raised by juror misconduct is rebutted must now be addressed.   We believe that the question should be resolved through the following prejudice analysis.

“A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever ․ the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ ”  (Id. at p. 950, 269 Cal.Rptr. 269, 790 P.2d 676.)  (Emphasis added.)

“ ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard.   In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’  (2 ABA Standards for Criminal Justice, supra, std. 8–3.7, Commentary, p. 8.58.)”  (Id. at p. 951, 269 Cal.Rptr. 269, 790 P.2d 676.)

“When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment, we are compelled to conclude that the integrity of the trial was undermined:  under such circumstances, we cannot conclude that the jury was impartial.   By contrast, when the misconduct does not support such a finding, we must hold it nonprejudicial.”  (Ibid.)

In Marshall, during death penalty deliberations, a juror told his fellow jurors that he had a background in law enforcement “and that the lack of evidence did not mean the defendant has no criminal background, because juvenile records are automatically sealed at 18 years of age.”  (People v. Marshall, supra, at p. 949, 269 Cal.Rptr. 269, 790 P.2d 676.)   The juror's statement of the law was erroneous.   The California Supreme Court applied its new “substantial likelihood” test, found juror misconduct and therefore presumed prejudice but held “the misconduct to be nonprejudicial” and affirmed the death penalty judgment.  (Id. at p. 952, 269 Cal.Rptr. 269, 790 P.2d 676.)

Although People v. Marshall considered juror misconduct in the context of habeas corpus review, People v. Holloway (1990) 50 Cal.3d 1098, 269 Cal.Rptr. 530, 790 P.2d 1327 makes clear that the Marshall “substantial likelihood” test also applies in a criminal appeal and when reviewing the denial of a motion for new trial.

What prompted the California Supreme Court to adopt a new, more stringent “substantial likelihood” test for juror misconduct may have been suggested by these comments:  “The jury system is an institution that is legally fundamental but also fundamentally human.   Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience.   That they do so is one of the strengths of the jury system.   It is also one of its weaknesses:  it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court.   Such a weakness, however, must be tolerated, ‘[I]t is an impossible standard to require ․ [the jury] to be a laboratory, completely sterilized and freed from any external factors.’  [Citation.]  Moreover, under that ‘standard’ few verdicts would be proof against challenge.”  (People v. Marshall, supra, 50 Cal.3d at p. 950, 269 Cal.Rptr. 269, 790 P.2d 676.)

I now turn to the question of whether the “lights off” constituted jury misconduct.   If it did, then I shall apply the Marshall “substantial likelihood” test to determine if reversal is required.

Was the “lights off” jury misconduct?

The trial court instructed the jury that “You must not make any independent investigation of the facts or the law․  This means, for example, that you must not on your own ․ conduct experiments․”  (CALJIC No. 1.03 (1985 New).)  (Emphasis added.)   Although one might well question whether the “lights off” was an experiment, Mr. Nellis testified that when the lights went back on it was pointed out “that these experiments are no different than anybody in their own home getting up in the middle of the night and going to the bathroom.”   Mr. Nellis' “experiments” characterization appeared to have been determinative for the trial court.   It said “But it is uncontroverted that an experiment took place in the jury room.  [¶] I mean it is uncontroverted, is it not?”   Later, the court remarked, “I think for me though the more critical issue had to do with the experiment [¶] That was very disheartening.   Here a jury is told at the outset not to engage in experiments, and they went ahead and did it.”

It was the trial court's view that the law prohibits all jury experiments.   Since this jury conducted an experiment, the trial court, without further inquiry, concluded they had engaged in misconduct.   The trial court's view of the law was mistaken.

California law recognizes two different kinds of jury experiments.   It permits one kind and prohibits the other.   Juries “may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence” then it is misconduct.  (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313.)

Higgins gives the following example of a permitted jury experiment:  Expended rifle shells were recovered from a crime scene.   To prove his rifle was not involved, the defendant introduced his rifle into evidence and also shells recently expended from it, shells with different firing pin markings than those found at the crime scene.   The jury took the rifle apart, examined the firing pin, concluded it had recently been altered, and convicted the defendant.

In accord with Higgins all of the following jury experiments have been held to be proper:  with defendant identification at issue, the jury conducted experiments to determine how accurate people are at estimating height and weight (People v. Smith (1963) 223 Cal.App.2d 225, 35 Cal.Rptr. 719);  to determine identification of a forged check passer, the jury examined the check cashing photograph with a magnifying glass, observed palm print lines, drew an enlarged diagram, and then—during jury deliberations—had the judge require the defendant to display her palm so they could compare its lines with their diagram.  (People v. Turner (1971) 22 Cal.App.3d 174, 183, 99 Cal.Rptr. 186);  because the arresting officer testified that while driving 2–3 miles per hour he saw the defendant toss a baggie of heroin, a juror drove 2–3 miles per hour to determine what she could see;  the jury also “re-enacted” the tossing by themselves throwing the heroin baggie (People v. Cooper (1979) 95 Cal.App.3d 844, 157 Cal.Rptr. 348);  because the vehicular injury defendant was blind in one eye, a juror drove all the way from his home to the courthouse with one eye closed (Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 223 Cal.Rptr. 737).

Other jurisdictions have reached the same result.   For example, in the much publicized murder of Dr. Herman Tarnower, the defendant Jean Harris, claimed her gun accidentally went off during a struggle with Dr. Tarnower.   She described the struggle.   The jury re-enacted the struggle, as she described it—and convicted her.   The court found no misconduct, stating “[W]here the jurors attempt to re-enact the crime during their deliberations in accordance with their own recollection of the testimony, their conduct constitutes nothing more than ‘application of everyday perceptions and common sense to the issues presented in the trial.’ ”  (People v. Harris (1981 N.Y.) 84 A.D.2d 63, 445 N.Y.S.2d 520, 546.)

Similarly, when a sexual assault victim testified her attacker wore a brown and green plaid scarf but a brown and grey plaid scarf was recovered from the defendant, the jury examined the defendant's scarf under “a variety of lighting conditions”—and convicted him.   The Arizona appellate court found no misconduct.  (State v. Ferreira (App.1986) 152 Ariz. 289, 731 P.2d 1233.)

But it was an Oklahoma appellate court which considered jury conduct identical to that in the instant case.   There, a woman was asleep on a mattress in her livingroom.   No inside lights were on, except for a bathroom light.   The only other light source was a porch light.   At 3:30 a.m. she was awakened by a stranger who attacked her.   She identified defendant's photograph and then identified him in a lineup.   The defense was alibi—corroborated by defendant's wife.   The jury conducted experiments by turning the jury room lights on and off.   The appellate court held the jury conduct to be proper.   (Thompson v. State (Okla.1974) 518 P.2d 1119, approvingly cited in Pennon v. State (Okla.1978) 578 P.2d 1211, 1214.)

The majority opinion attempts to distinguish these cases.   For example, it pooh-poohs Turner, where the jury conducted a palm print comparison outside the evidence, as only involving a “more critical examination” of evidence.   Its attempt does not succeed.

To support its contention that the “lights off” constituted jury misconduct, the majority opinion primarily relies upon People v. Castro (1986) 184 Cal.App.3d 849, 229 Cal.Rptr. 280, a case decided by a split court and since decided, over five years ago, never cited by an appellate court.   I find Castro unpersuasive and briefly explain why.

Its facts are simple.   During a protracted prison riot involving 100–250 inmates, three correctional officers observed the rioters through binoculars.   Two of the officers could not identify defendant as one of the rioters.   The third officer, who had had recent personal contact with defendant, could and did identify defendant.   A jury convicted him.   Defendant moved for a new trial based upon juror misconduct.   The motion was denied.  Castro found prejudicial juror misconduct based upon a two sentence juror declaration stating:  I “ ‘went home and used binoculars to see if a witness could have possibly seen what he [ ] said he did.   After using the binoculars I took that information back to the deliberations of the jury the next day.”  (Id. at p. 852, 229 Cal.Rptr. 280.)

In reaching its result Castro is internally contradictory.   It first states:  “The only reasonable inference to be drawn from Dooley's declaration is that he conducted his own at-home experiment to determine if Officer Johnson could have identified appellant as the culprit who threw the burning mop into the maintenance building at the distances and in the light established by the evidence, and after concluding that the officer could have so identified appellant, reported his findings to the other jurors during deliberations.   Thus, the jury received evidence outside of the courtroom which appellant was unable to meet or answer thereby establishing a juror misconduct.”  (People v. Castro, supra, at p. 853, 229 Cal.Rptr. 280.)

One page and 180 degrees later, Castro states:  “Although there is no showing in the present case that Dooley's binoculars were ‘similar’ to the binoculars used by Officer Johnson (seven powered) or that the light conditions and distances used at the time of Dooley's personal experiment were similar to the conditions at the time Officer Johnson identified appellant, Dooley's experiment nevertheless had the same effect as the Conkling juror's experiment.   It enabled Dooley to receive evidence outside the presence and knowledge of appellant going to the crucial element in the prosecution's case, the identity of the appellant.”  (Id. at p. 854, 229 Cal.Rptr. 280.)

Further, its analysis violated Evidence Code section 1150 by treating as admissible the inadmissible subjective mental process portion of the juror declaration (“․ to see if a witness could have possibly seen what he [ ] said he did.”).   By doing so it “obfuscate[d] the clear line drawn in Hutchinson between proof of objectively ascertainable facts and proof of the subjective mental processes of jurors.”  (Hasson v. Ford Motor Co., supra, 32 Cal.3d 388, 414, 185 Cal.Rptr. 654, 650 P.2d 1171.)

Properly considered, the juror declaration only stated that he had used binoculars (and told his fellow jurors that he had done so).   Since he and every other juror had indicated during voir dire that they were familiar with binoculars, (id. 184 Cal.App.3d at p. 858, 229 Cal.Rptr. 280, dis. opn.), his use did not “invade new fields” and was not misconduct.

Finally, in a vain attempt to distinguish People v. Cooper and Locksley v. Ungureanu (see our earlier discussion of these cases), Castro declares that observations through binoculars are not common knowledge because “a juror's observations through a particular powered set of binoculars at a particular distance under particular light conditions is not a matter of common knowledge.   It produces a result which is beyond the ken of the other jurors even though they may have had some general familiarity with binoculars.”   (Id. at p. 854, 229 Cal.Rptr. 280.)  (Original emphasis.)

Castro does not explain why driving a particular car, at a particular 2–3 m.p.h., in a particular location, making particular observations (People v. Cooper, infra ) is not also beyond common knowledge.   Or why the Locksley juror driving with one eye closed—with all “particulars” appropriately inserted—did not produce results beyond the ken of other jurors.

Castro is irreconciliable with People v. Cooper, Locksley v. Ungureanu and the body of California law.

I conclude that the “lights off” experiment was within the lines of offered evidence, could have produced only common knowledge, and did not constitute jury misconduct.

If misconduct, is there a substantial likelihood of detrimental influence?

Assuming arguendo that the “lights off” was jury misconduct, did it create a “substantial likelihood” that one or more jurors were influenced to appellant's detriment?   The question is not a close one and my answer is no.

The two minutes of silent “lights off” was the epitome of common experience.   Every person from infant to senior citizen has been in a room without interior light.   The “lights off” was no more than that.   During the one day's deliberation before “lights off” no juror had taken the position that the perpetrator was not visible.   After the “lights off” there was no juror discussion about the “lights off” experience except that it was “no different than anybody in their own home getting up in the middle of the night and going to the bathroom.”   When the lights were turned on the jury continued discussing perpetrator visibility for another half day.   Only then was a vote taken;  it was unanimous.

I also observe that if “lights off” was an experiment it was one skewed in appellant's favor.   Jurors went from a fully lighted room to a “lights off” one, a change requiring time consuming visual adjustment.   Leslie Burton and Ardith Moore went from the darkness of closed-eyed sleep to—in the words of jury foreman Nellis—the “very well lit” Burton bedroom.   Their eyes did not have to adjust to lesser light.

Nor may one speculate about the effect of “lights off” upon the jurors.   First, there was no evidence of any effect.   Second, such speculation is prohibited by Evidence Code section 1150:  “No evidence is admissible to show the effect of such conduct ․ upon a juror ․ in influencing him to assent to ․ the verdict․”

Finally I note, that the trial court, despite using a less stringent standard than “substantial likelihood,” found the “lights off” to be nonprejudicial.   The trial court was, of course, familiar with its jury room where the “lights off” occurred (as we are not ) and during the trial observed for himself the crime scene lighting conditions.

Alleged misconduct by juror Joyce Camis.

Appellant contends that juror Joyce Camis committed prejudicial misconduct by concealing during voir dire that she had been raped in a poorly lit room but was able to recognize her assailant.   I consider this claim.

I begin by detailing the events which preceded the voir dire of Mrs. Camis.

The People v. Larry Evens case had been scheduled for trial in the Los Angeles Central District.   Its courts were apparently occupied.   With November 28, 1988, being the last day to begin the Evens trial without violating the defendant's speedy trial rights (§ 1382, subd. (b)), the case was transferred on that date to Department M in the Northwest District, the master calendar court.   At about 4:40 p.m. the trial court swore the jury panel and thus began the trial.

After the clerk swore the panel, the trial court made the following remarks:

“THE COURT:  All right.   Good afternoon, ladies and gentlemen.  [¶] It is rather late in the day, and we are not going to need your services for very much longer.  [¶] You should be out of this courtroom in the next four or five minutes at most.”

The reporter's transcript then states:  “(Voir dire of prospective jurors).”   This voir dire was not transcribed and is not part of the record on appeal.

Although the trial court indicated to counsel, before calling the jury panel, that he was “not even going to read the information in its entirety” to the panel, the record fails to disclose that the panel was provided any information about the charges or issues.

Because of the trial court's master calendar duties, a daily average of 30 matters on calendar, the Evens jury voir dire resumed the next day at 1:30 p.m., Tuesday, November 29.

As to the Tuesday afternoon, November 29, voir dire, the entire record on appeal consists of the following reporter's transcript entry:  “(Voir dire of prospective jury panel continued).”   The record fails to disclose the jury was given any information about the case.   The jury was ordered to return the next day at 1:30 p.m. for further voir dire.

On Wednesday, November 30, 1989, sometime after 1:30 p.m., voir dire resumed.   It was not transcribed, the reporter's transcript merely noting:  “(Voir dire of prospective jury panel continued).”   Later that afternoon a jury was accepted by both sides and then sworn.   Mrs. Camis was not a member of the jury.

After swearing the jury, the selection of three alternate jurors began.   Again the voir dire was not transcribed, the reporter's transcript merely noting “(Voir dire of prospective alternate jurors).”

On Thursday morning, December 1, 1988, sometime after 10:30 a.m., the alternate juror selection process resumed.   Counsel continued their voir dire of the three prospective alternate jurors.   The reporter's transcript merely note:  “(Voir dire of prospective alternate jurors continued).”

Sometime later that morning the People accepted the “alternates as seated” but the defense excused a prospective alternate juror.   The clerk then called, “Joyce G. Camis.”

The record then indicates:  “THE COURT:  Miss Camis, go ahead and answer the questions.”   The record does not, however, disclose exactly what the “questions” were.   Appellant's trial counsel was sensitive to this deficiency and at the commencement of the motion for new trial hearing stated:

“Your Honor, there is something I think needs to be added to the record which is a part of the record among us, but isn't for a reviewing court, and that is that the sign that the Court has on the wall, which we use during—which the Court used during voir dire has eight questions that are directed toward the jurors, the seventh of which asks them to respond to whether they themselves, a relative or close friend [sic] involved in criminal matters as accused or victim.  [¶] That that [sic] was a question that by implication was presented to each of the jurors in this matter.”

The trial court then stated, “all right.   I think that's fair.   You would so stipulate, correct?”   And the prosecutor said, “Oh, certainly.”

Mrs. Camis' answers to these eight questions, as well as the entire voir dire of her, is part of the augmented reporter's transcript.

In its entirety, it consists of the following:

“PROSPECTIVE ALTERNATE JUROR CAMIS:  My name is Joyce Camis.

“I live in Newhall.

“I am married.

“I have three adult children.

“One daughter is a housewife.

“One daughter is a counselor at a mental health services.

“My son is in construction.

“I am a lab technician at Anheuser–Busch.

“My husband is a brewer at Anheuser–Busch.

“I have a brother-in-law that is a police officer.

“I have a friend that is a sheriff in Newhall.

“I have been a victim in several burglaries, and I have no legal or law enforcement background.

“THE COURT:  Have you ever served as a juror in a criminal case?

“[ ] CAMIS:  I am sorry.

“THE COURT:  Have you ever served as a juror before?

“[ ] CAMIS:  No.

“THE COURT:  How many different times have you been the victim of burglaries?

“[ ] CAMIS:  Four.

“THE COURT:  These are of the residence, of your home?

“[ ] CAMIS:  Yes.

“THE COURT:  Do you think those experiences would cause you to be other than fair?

“[ ] CAMIS:  No.

“THE COURT:  Do you have—you must have strong feelings about being the victim of a burglary, four different burglaries.

“[ ] CAMIS:  Well, they happened sometime ago and, you know, he didn't do them.

“THE COURT:  Okay.   So that wouldn't enter into your deliberations?

“[ ] CAMIS:  No.

“THE COURT:  You have a brother-in-law that is a police officer.

“What agency does he work for?

“[ ] CAMIS:  He works out of Lakewood I believe.

“I only have seen him maybe five times.

“THE COURT:  Is there anything about either your relationship with the police officer or is it a neighbor or friend that is a police officer

“[ ] CAMIS:  He is a neighbor and a friend.

“THE COURT:  All right.

“Anything about those relationships that would cause you to be other than fair?

“[ ]CAMIS:  No.   We never discuss anything related to that.

“THE COURT:  Okay.   Thank you.

“You may inquire.

“[Defense Counsel]:  Thank you, Your Honor.

“Miss Camis, you said the burglaries were sometime ago.

“Were they at the same place where you currently live?

“[ ] CAMIS:  No, they were at three different locations and not in the house I am at now.

“[Defense Counsel]:  And when is the—how long long [sic] ago was the most recent of those incidents?

“[ ] CAMIS:  About seven years ago.

“[Defense Counsel]:  All right.

“And your brother-in-law is he married to a sister of yours?

“[ ] CAMIS:  He is married to my husband's sister.

“[Defense Counsel]:  Your husband's sister.   All right.

“And have you ever talked cases with him?

“[ ] CAMIS:  No.   Like I said I have only seen him maybe five times since I have been married.

“[Defense Counsel]:  All right.

“And your neighbor, you don't talk cases with him either?

“[ ] CAMIS:  We usually talk about his coke collection, coca cola collection.

“[Defense Counsel]:  We have a little fun occasionally.

“As a lab tech, what is it that you do at Anheuser–Busch?

“[ ] CAMIS:  I analyze beer.

“[Defense Counsel]:  For what

“[ ] CAMIS:  For quality.

“[Defense Counsel]:  For impurities?

“[ ] CAMIS:  Well, we have to know the sugar content, the alcoholic content, the calories before it is released because there are standards.

“[Defense Counsel]:  Do you take samples of larger amounts of beer or do you have a system that does it constantly?

“[ ] CAMIS:  We take samples and run them in a computer set up.

“[Defense Counsel]:  Does your daughter have a degree in some kind of mental health work?

“[ ] CAMIS:  No.

“[Defense Counsel]:  If you were selected as a juror here or as an alternate juror, do you think your neighbor who is a police officer would inquire about what is going on in this case?

“[ ] CAMIS:  No.

“[Defense Counsel]:  Would it concern you if you were a juror in this case as you voted in this case, suppose you were at the point in time you were casting your ballot, would care [sic] somebody or anybody might later say you made a mistake in this case?

“[ ] CAMIS:  It would only be their opinion.

“[Defense Counsel]:  It wouldn't bother you?   It wouldn't worry you?

“[ ] CAMIS:  No.

“[Defense Counsel]:  Are you the kind of person that we can both, the prosecutor and I, can both count on will vote your own view of the facts in this case, express your own views and vote them?

“[ ] CAMIS:  Absolutely.

“[Defense Counsel]:  You are the kind of person that can handle yourself well enough in a group so that we can be sure we get your viewpoint?

“[ ] CAMIS:  Yes.

“[Defense Counsel]:  All right.

“Thank you, Mrs. Camis.

“THE COURT:  You may inquire.

“[Prosecutor]:  Good morning.

How long have you worked for Anheuser–Busch?

“[ ] CAMIS:  Twelve years.

“[Prosecutor]:  Same amount of time as your husband?

“[ ] CAMIS:  No, he has been there 22 years.

“[Prosecutor]:  Anything about the fact that this case involves charges such as attempted murder?

“You may hear testimony that is a little difficult.

“You may see photographs that are difficult to look at.

“Anything about that that would make you prefer not to sit as a juror in this case?

“[ ] CAMIS:  No.

“[Prosecutor]:  Anything about your time schedule especially coming into the holidays—

“[ ] CAMIS:  No.

“[Prosecutor]:  —that should cause us any concern?

“[ ] CAMIS:  Nothing.

“[Prosecutor]:  You hear me going over that again and again.

“It is very important.

“This is a very serious case.

“We want to be sure we have jurors that can take the time to listen very carefully and take time to deliberate.

“You know, in the afternoon I am sure you have experienced it this week, the walls start closing in.

“Later in the afternoon it gets late, and you keep, you know, looking at your watch and wondering when we are going to be excused.

“When you go in to deliberate and there is some heated discussion possibly that goes on, those walls will start closing in on you also.

“Can you promise us that you will kind of set that aside and really take the time to listen to everybody and to discuss it thoroughly as a group?

“[ ] CAMIS:  I don't think I will have a problem.

“[Prosecutor]:  Okay.   Great.

“Anything about the burden of proof in this case that it is incumbent upon us to prove the defendant guilty beyond a reasonable doubt before he can be convicted?

“[ ] CAMIS:  No.

“[Prosecutor]:  Are you going to hold us to a higher standard than that, because a lot of times you go in to deliberate you may have a doubt and you think, okay, I have got a doubt.

“Not guilty.

“Do you understand you have to examine that doubt.

“See if it is reasonable, because otherwise you are holding us to a perfect case, beyond any possible doubt case.

“[ ] CAMIS:  Yes.

“[Prosecutor]:  Thank you.”

Both sides accepted Mrs. Camis.   Well before 11:20 a.m. that Thursday morning, the three alternative jurors were sworn.

On December 14, 1988, when a regular juror was absent due to illness, Mrs. Camis became a member of the jury.

At the motion for new trial hearing, appellant's trial counsel extensively questioned Mrs. Camis about her having been the victim of a rape.   She testified that in the mid–1970's, i.e. about 14–15 years prior to the instant trial, an acquaintance of her son's got a knife from her kitchen drawer, threatened her with it and raped her.   The incident occurred at night, in her house, with the only illumination provided by a street light, one house away.   The incident lasted 10–15 minutes and Mrs. Camis, notwithstanding the dim light, was able to identify her assailant.   It is, of course, undisputed that this information was not disclosed during voir dire.

The question is:  did Mrs. Camis conceal this information (committing misconduct presumptively prejudicial to appellant), as appellant claims, or did defense counsel simply neglect to ask her about it?

I have reviewed the record with care and am satisfied it demonstrates no concealment.

Appellant's claim appears to rest upon Mrs. Camis' response to question seven, one of the standard eight questions the trial court had placed on its wall.   As I have indicated, the record on appeal does not contain the exact wording of question seven.   We have only appellant's trial counsel's reconstruction, viz.:  “․ the seventh of which asks them to respond whether they themselves, a relative or close friend [sic] involved in criminal matters as accused or victim.”  (Emphasis added.)

This question did not ask a juror to itemize crimes she had been “involved in,” either as an accused or victim.   It asked “whether ” she had been so involved.   In other words, based upon defense counsel's reconstruction, the question was:  “Have you, a relative or close friend been involved in criminal matters as accused or victim?”   Appellant does not claim a different understanding.   His appellate brief states, “She was specifically asked whether she had ever been the victim of a crime.”  (Emphasis added.)

Mrs. Camis truthfully answered the question and more.   By answering “I have been a victim in several burglaries ․” she fully answered the question and volunteered additional information.

As I earlier indicated, the record is silent concerning what information about the charges or the facts Mrs. Camis had when she answered question seven.   If she knew the charges, which included burglary not rape, then volunteering she had been the victim of “several burglaries” was not designed to enhance her prospects of being accepted as a trial juror.

As is obvious, question seven was a “springboard” question.   If a prospective juror answered “yes,” then the court and counsel were in a position to ask diplomatic follow-up questions.   Those questions could, step by step, distinguish between a juror's involvement as a victim and as an accused, between a trivial misdemeanor and a serious felony, and between recent still vivid involvement and remote almost forgotten involvement.

In fact, such follow-up questions were asked of Mrs. Camis.   The court asked, “how many different times have you been the victim of burglaries?” and Mrs. Camis sharpened her earlier volunteered “several” into “four.”

Appellant's trial counsel asked only two burglary follow-up questions:  Where they occurred and when was the most recent.   He did not ask whether Mrs. Camis was home during any of the burglaries.   And he did not ask whether the burglars committed any other crimes.

The explanation for Mrs. Camis not stating during voir dire that she had been the victim of a rape 14 years ago is clear.   At the motion for new trial hearing she testified to the explanation:  “Well, I wasn't really asked․  There was [sic] very few questions asked about the crimes that I mentioned.”   Her silence, she stated, was not due to embarrassment—she saw no reason to be embarrassed;  if she had, she wouldn't have mentioned it in the jury room.   There was only one reason:  no one asked.

Appellant's trial counsel acknowledged as much.   At the motion for new trial hearing he belatedly recognized that it was during one of the four burglaries that Mrs. Camis had been raped.   This is what he told the trial court:

“Just to quickly say that I see my own failure to ask questions of Miss [sic] Camis and it troubles me.  [¶] But I am not here to apologize for that.   I certainly did the best I could.  [¶] What happened I think is something that is understandable.  [¶] Miss [sic] Camis uses a word that to anybody in the legal system triggers a particular response.  [¶] The concept of burglary doesn't express the concept of rape to me, 4 and I don't think it would to the Court or to most lawyers․”

I conclude that Mrs. Camis did not conceal information during voir dire and did not commit misconduct.

How can the majority opinion conclude otherwise?   Only by blurring over the fact that it was to a question no one asked her—that Mrs. Camis “concealed information.”   Why this majority opinion blurring?   Perhaps because without this blurring the majority opinion would reveal that these convictions are overturned for no greater reason than that during deliberations a juror shared a personal experience.   Understandably, to make such a revelation is to suffer a Humpty Dumpty fate.

My conclusion is consistent even with People v. Diaz (1984) 152 Cal.App.3d 926, 200 Cal.Rptr. 77, a case criticized as “too far reaching” (People v. Kelly (1986) 185 Cal.App.3d 118, 125, 229 Cal.Rptr. 584) for holding “unintentional” concealment to be misconduct.  (See also People v. Jackson (1985) 168 Cal.App.3d 700, 704, 214 Cal.Rptr. 346 [“We cannot accept the rationale in Diaz ”];  People v. Resendez (1968) 260 Cal.App.2d 1, 10–11, 66 Cal.Rptr. 818.)   Even Diaz, before it would find “concealment,” intentional or unintentional, requires that a juror be asked a “relevant direct, and unambiguous question.”  (People v. Diaz, supra, 152 Cal.App.3d at p. 935, 200 Cal.Rptr. 77.)   No such question about rape was asked of Mrs. Camis.

If misconduct, is there a substantial likelihood of detrimental influence?

Assuming arguendo that Mrs. Camis unintentionally concealed information concerning being raped 14 years earlier, I find no substantial likelihood of detrimental influence.

The trial court stated, “I have reviewed the entire record, reviewed the initial voir dire of Miss [sic] Camis.  [¶] I have reviewed my notes that I took during the trial.  [¶] ․ And in reviewing the entire record, I am satisfied that Mr. Evens received a fair trial.  [¶] Miss [sic] Camis appeared to be a fair and impartial juror.”

I have reviewed the entire record and have reached the same conclusion.

That an intruder into Mrs. Camis' house had raped her, could have had no influence upon her deliberations.   That her house was without lights when she saw the intruder-rapist, could have been of influence but no more than other countless and more recent experiences when she and all other jurors saw people in less than full light.   More importantly, as the record I have set forth, perhaps too fully, shows—the jury appropriately focused on the lighting conditions present at the crime scene.

CONCLUSION

Finding no error, I would affirm the judgment.

FOOTNOTES

1.   Penal Code section 654 provides in pertinent part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”

2.   The dissent makes much of our use of the term “change of vote ” to characterize the jurors' “change of position ” after being influenced by the impermissible experiment and Ms. Camis' description of her rape to the rest of the jury.   The dissent may be technically correct no juror changed his or her vote but this is only because no actual votes were taken before the experiment and Ms. Camis' discussion of her rape.   In any event, the more critical inquiry is whether jurors were influenced to change their mind by the extrajudicial evidence.   It is improper influence this opinion focuses on.   Whether it changed a juror's previous vote or previous position on a critical issue is, in effect we believe, the same thing.   Whichever way it is characterized there was evidence the jury misconduct influenced certain jurors to the prejudice of appellant.   That is enough to require reversal.

3.   This holding is consistent with decisions from other jurisdictions concerning concealment of juror bias on voir dire.   For example, in an Illinois case strikingly similar to the case at bar, an appellate court held a defendant was entitled to a new trial where it was clear a juror's concealment of bias on voir dire led him to prejudge a critical issue in the case.In People v. Oliver (1977) 50 Ill.App.3d 665, 8 Ill.Dec. 380, 365 N.E.2d 618, a juror did not answer in the affirmative when asked on voir dire if he had been a victim of a crime.   Several years before, two men assaulted and hit him over the head but fled before taking any money from him.   Because no money was taken, the juror did not consider the altercation to be a crime and did not report it to the police.   However, because of this experience, the juror was convinced a victim of a crime never forgets the face of the perpetrator.   For this reason the juror believed the testimony of a key witness in this case.In denying the defendant's motion for new trial the trial court found the juror had made a misrepresentation on voir dire but found the misrepresentation unintentional, thus, harmless error.   The appellate court disagreed.   The court found because a juror brought to deliberations a preconceived opinion a victim of a crime never forgets the face of the offender, the defendant was deprived of his right to a trial by an impartial tribunal.   Moreover, the juror came to the case with an opinion on one of the main issues in controversy—the credibility of identification testimony.In reversing the defendant's conviction the court declared “Where a defendant's fundamental rights to due process of law and trial by a fair and impartial jury are at stake, it makes no difference whether a misrepresentation by a juror on voir dire which fails to disclose a preconceived opinion on one of the main issues in controversy is intentional or unintentional.”  (People v. Oliver, supra, 8 Ill.Dec. at 387, 365 N.E.2d at p. 625;  see also, 58 Am.Jur.2d, New Trial, §§ 210 et seq., p. 239 [misconduct of jury as grounds for new trial].)

4.   The dissent criticizes People v. Castro, supra, 184 Cal.App.3d 849, 229 Cal.Rptr. 280, as being internally inconsistent because the opinion admits the juror did not use similar binoculars and did not ensure the lighting conditions and distances tested were identical to the conditions under which the prison guard testified he viewed the defendant.This inconsistency is the very circumstance that distinguishes an impermissible juror experiment from a permissible one.   The fact the experiment does not duplicate the circumstances as testified to at trial, and introduces Note 4—Continuedvariables into the equation, presents the risk the juror experiment will vary greatly from the evidence offered at trial and will be “new” evidence.   Thus, because the conditions of the experiment were different, the inescapable conclusion was the experiment most likely presented new evidence and was misconduct on that basis.The dissent acknowledges whether a jury experiment is permissible depends upon whether the experiment creates extraneous evidence not admitted at trial or is merely a closer examination of evidence admitted at trial.   The dissent then cites various examples of permissible jury experiments from California and other jurisdictions.   The permissible experiments in these cases relied on by the dissent, however, were merely reenactments of demonstrations already performed in the courtroom, were within a juror's common experience, or were only closer inspections of exhibits already introduced at trial and not properly categorized as experiments.   Thus, no new evidence was introduced in any of these cases and the juror “experiments” were properly not considered misconduct.   The decisions, however, have no application to the experiment in the present case which was not a reenactment of a demonstration already presented at trial, a matter within a juror's common experience nor a mere examination of exhibits.For example, in Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 115 P. 313, the jury examined a gun and discovered on their own the firing pin had been altered.   The gun taken apart and closely examined by the jury was the very gun testified about at trial and introduced into evidence.   Closer scrutiny of exhibits admitted into evidence is not a jury experiment and does not introduce evidence different than that offered at trial.In People v. Turner (1971) 22 Cal.App.3d 174, 183, 99 Cal.Rptr. 186, the jurors used a magnifying glass to scrutinize a photograph of the defendant taken from a video from the establishment where she purportedly negotiated a forged check.   By using the glass the jurors could discern the defendant's palm and wrist prints on her outstretched hands.   A comparison of the palm prints in the photo and the defendant's identified her as the guilty party.   The appellate court refused to classify the jury's act as an experiment because it introduced no new evidence.   Because this photograph had been introduced at trial, use of the magnifying glass only allowed a “more critical examination” of the exact evidence already offered at trial.In People v. Cooper (1979) 95 Cal.App.3d 844, 157 Cal.Rptr. 348, the defendant alleged several incidents of jury misconduct.   The court did consider the juror affidavit concerning the alleged juror experiment in which the jury reenacted how the defendant threw the bags of contraband.   However, the court found no misconduct because the jury was merely reenacting the exact demonstration conducted by police officers during trial.   Because the jury was merely reviewing evidence already introduced at trial, the jury “experiment” introduced no new evidence and therefore was not misconduct.In Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 223 Cal.Rptr. 737, one of the main issues at trial in this auto accident case was whether the defendant's peripheral vision, or vision in general, was impaired by blindness in one eye.   While driving home one night, a juror drove for a while with one eye closed to determine if he could see to drive.   The Court of Appeal held this was not an impermissible jury experiment because it was within the lines of the evidence offered at trial, specifically, whether a one-eyed person was capable of driving.   The question in the Locksley case was a very general one, easily within a juror's common experience even without verification.   The experiment only involved one variable—the second eye open and then closed.   In contrast, the instant experiment involved a host of variables—time of day, amount of ambient lighting, texture and color of walls, size of room, height of ceiling, and the like.   If either side had proposed to introduce this experiment as demonstrative evidence they would have been required to lay a detailed foundation establishing the situation in the jury room exactly duplicated, as to all these variables, the conditions in the room where the crime occurred.   Only then would it have been permissible for the lights to have been turned off for the purpose of determining whether the victims could identify the perpetrator without artificial lighting.   Thus, the jury in the instant case performed an experiment that would have required an extensive foundation and did so in a room and under conditions that quite likely could not have met these foundational requirements if offered as evidence in court.   The eye-closing “experiment” in Locksley, on the other hand, was one that involved no variables and required no such foundation.Decisions from other jurisdictions cited by the dissent which found no impermissible juror conduct are consistent with the rule that experiments on the evidence actually presented at trial is not prejudicial juror misconduct.   For example, State v. Ferreira (App.1986), 152 Ariz. 289, 731 P.2d 1233, analyzed whether juror scrutiny of the defendant's scarf under various lighting conditions to determine whether it could appear green as the victim testified was not misconduct but only proper inspection of evidence offered at trial.   The court noted the scarf was introduced at trial during the day under courtroom lighting which was inconsistent from the lighting conditions testified to by the victim.   The victim's evidence, however, was the scarf appeared green under different lighting.   Thus, the jury's “experiment” created no new evidence and was merely a critical analysis of the evidence already offered.People v. Harris (1981 N.Y.), 84 A.D.2d 63, 445 N.Y.S.2d 520, involved juror reenactment of a struggle between the victim and perpetrator based on the defendant's testimony at trial.   The court found the experiment permissible because the step-by-step reenactment based on the defendant's testimony of how the gun fired did not put the jury in possession of evidence not introduced at trial.   Nor did the experiment involve duplicating the unique perceptions of a witness but only the feasibility of a struggle over a gun while one person was sitting and the other kneeling on the floor as the defendant testified the shooting occurred.Finally, in Thompson v. State (Okla.Crim.1974) 518 P.2d 1119, the jury experimented in turning the lights in the deliberations room on and off to verify the victim's testimony she could see her assailant in the dark.   In its brief and incomplete analysis, it is clear the court found the experiment misconduct but held a review of the entire record indicated the experiment did not affect the judgment.The other cases relied on by the dissent to support its view of permissible juror experiments are clearly inapplicable.   In those cases the appellate court refused to consider juror affidavits describing the alleged experiment because they contained inadmissible evidence of a juror's subjective reasoning process.  (Evid.Code, § 1150.)   Never having reached the question of whether the experiment was or was not proper, these decisions cannot be relied on to support the position an experiment driving 2–3 miles per hour making particular observations is not juror misconduct (People v. Cooper, supra, 95 Cal.App.3d 844, 157 Cal.Rptr. 348) or that guesstimating fellow jurors' height and weight to test the credibility of the witnesses was not an impermissible jury experiment (People v. Smith (1963) 223 Cal.App.2d 225, 237, 35 Cal.Rptr. 719).   Thus, the dissent's reliance on these cases is misplaced.In any event, we find none of the cases cited by the dissent controlling in a situation where the jury experiment was not merely a closer examination of exhibits offered at trial nor an experiment conducted within the lines of the evidence offered at trial.   The experiment here was conducted under entirely different conditions than those testified to at trial.   The result of the experiment only informed the jury what one could see in a, perhaps, darkened deliberations room during the day while fully alert—entirely new and different evidence from the witnesses' testimony of what they could see in the ambient light of the condominium when awakened in the middle of the night.

5.   The dissent concludes there is no direct link between the experiment and the jury's vote merely because the only vote taken was unanimous for conviction.   However, this vote was taken sometime after the experiment and after Juror Camis' description to the rest of the jury of how she could identify her attacker in less than adequate lighting.  (See § I, supra.)   Ms. Camis testified that during the first day and a-half of deliberations certain jurors remained unconvinced whether the victims could identify appellant in the dark and changed their minds only after the experiment and Ms. Camis' revelation.   The dissent, however, ignores this testimony and its significance.   A review of the entire record reveals, however, one or more of the juror's vote was influenced by the improper juror experiment.

6.   As the dissent points out, the proper test for evaluating the prejudicial effect of juror misconduct is less than clear after the Supreme Court's decision in People v. Marshall (1990) 50 Cal.3d 907, 950, 269 Cal.Rptr. 269, 790 P.2d 676, which analyzed juror misconduct in the context of a habeas corpus review.   That decision did not reject the long-standing Hasson and Martinez tests nor even discuss them.   In any event, the Marshall court would find prejudice from juror misconduct if there is a “substantial likelihood the vote of one or more jurors was influenced” by the misconduct.In this case there was more than a “substantial likelihood” of juror influence because the record reveals jurors did change their position after the improper experiment and Ms. Camis' revelation to the rest of the jury of how she was able to identify her attacker in the dark.

7.   In view of our disposition of this case, we need not reach appellant's allegations of sentencing error.

1.   Challenged, the majority now concedes there was no change in vote.  (Maj. opn., fn. 2.)   Now it asserts there was a “change in position.”   It quotes no evidence to support this new assertion because there is none.   The Camis testimony I have quoted establishes only that jurors were discussing the adequacy of light, both before and after the Camis story.   Hours later a first and final and unanimous vote was taken.

2.   Appellant's trial counsel stated to Mr. Nellis that before the Monday, December 19 verdict, the jury “had deliberated Wednesday, Thursday, and Friday.”   He repeated the error, later, by referring to Friday as “the third day of deliberations.”

3.   E.g., “Q. Now do you recall what day it was that the lighting business took place?“A. Friday, December 16th.”

4.   An ironic comment since the burglary charge against appellant was based upon “the concept” of mayhem and attempted murder.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.

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