PEOPLE v. McDONALD (1995)

Michael McDonald appeals from the judgment entered following a jury trial that resulted in his conviction of second degree murder (Pen.Code, § 187, subd. (a)).¹  He was sentenced to prison for the term of 15 years to life.

Appellant contends:  (1) The judgment is not supported by the evidence because there was insufficient corroboration of accomplice McNary's testimony;  (2) The trial court erred in denying his motion for a new trial based on juror misconduct;  (3) Exclusion of third party culpability evidence was reversible error;  (4) The trial court committed reversible error by refusing to disclose the names and addresses of the jurors to appellant;  and (5) The prosecutor committed prejudicial misconduct.   We find his second contention to be meritorious and reverse the judgment with directions to vacate the order denying the motion for a new trial and to enter a new order granting the motion.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that Alex Giraldo and Chavares McNary were arrested together for committing crimes.   They had been friends until Giraldo told the police that McNary was the one who had broken into cars.   McNary was afraid Giraldo would tell the police about McNary, Neilson Hull, Ken German, and Jay Castaneda committing an armed robbery at an ATM where someone was shot in the face.   Giraldo believed Brian Davis and Schuyler MacPherson knew about the ATM robbery.   Davis and MacPherson were best friends and McNary was a close friend of appellant and MacPherson.

In December 1991, Giraldo was beaten twice because he was a snitch and needed to be taught a lesson.   McNary, who was bigger than Giraldo and trained in Kenpo, a martial art, beat him up on December 27th.   The next day German drove with McNary, Castaneda, Hull, and another male to Giraldo's residence where German struck Giraldo, Hull maced him, and McNary tripped Giraldo by throwing a Kumba stick, a baton-type object, as Giraldo ran.   Giraldo was also robbed of his watch.

On January 7, 1992, McNary told Giraldo in front of Davis that he would “get” him when he found him on the street.   On February 1, 1992, in the evening, appellant suggested they beat up Giraldo.   McNary, MacPherson and Davis all agreed to do so.   Appellant intended to use a wire to choke Giraldo unconscious and leave him at a cliff.   Earlier that day he had cut a length of wire and McNary attached a washer to one end and made a noose.

Sometime between 7:30 and 8:00 p.m., before dark, MacPherson picked up appellant and McNary at appellant's house and then drove them, along with Davis, in his car to a movie theater at the Lakewood Mall to set up an alibi.   About fifteen minutes later the four went to cliffs overlooking the ocean.   After dropping off McNary, the remaining three went to pick up Giraldo.

Around 8:15 p.m. Giraldo was visiting Nicole Tuttle at her residence across the courtyard from where he lived.   He appeared to be “antsy” and repeatedly walked to the window, looked out and walked away.   Around 8:30 p.m. he placed a call on Tuttle's phone and said, “Hello, Brian, is Schuyler there?   Has Schuyler left yet?”   About 9:15 p.m. while looking out of the window for his friends, he said, “They're here.”   Giraldo told Tuttle he was going to the movies.   He then left.

At home, Giraldo told his mother that his friends were here and he was leaving.   She heard a male say something and thought he might be appellant or MacPherson but she was not able to recognize the voice.   Before leaving, Giraldo said he was going to the movies with MacPherson and someone named “Ziggy” and he would be home after one show.   She trusted MacPherson who was a good friend of Giraldo.

About an hour after McNary was dropped off, MacPherson and the others returned to the cliffs with Giraldo.   MacPherson remained in the car while appellant, Davis, and Giraldo exited.   McNary walked up to Giraldo and hit him.   When Giraldo fell to his knees, appellant put the wire noose around his neck and choked him until the wire broke into two pieces.   Appellant or Davis took Giraldo's jacket, wallet and cellular phone.   Then appellant and Davis picked up Giraldo's body and rolled it over the edge of the cliff.

After the three returned to the car, appellant left again with a knife.   When he again returned, the knife was bloody and he wiped it on Giraldo's jacket.   Giraldo died from ligature strangulation and stabbing.   The ligature marks were consistent with a thin, non-soft ligature.   The stab wounds were not inconsistent with those inflicted by a knife.

When Ruth Davis returned home at 11:30 p.m., she saw Davis, her son, with MacPherson, McNary, and appellant.   MacPherson then dropped off appellant and McNary, who was staying with him, at appellant's home around midnight.   MacPherson returned to his home at 1 a.m. and told his mother that Davis was with him and they were going to vacuum and clean the car and look for his CD remote control unit which had been missing since Friday.   At 2 a.m. he told his mother he was taking Davis home.

Giraldo's body was found in a small ravine close to the top of a cliff near a jogging path in a desolate, vacant area just east of Royal Palms State Beach.   A metal wire with a washer attached to one end was found on the jogging path.   Another piece of wire was found nearby.   A black remote control unit which activated the CD player in MacPherson's car was found in Giraldo's pants pocket.

Appellant relied primarily on mistaken identity and alibi defenses.   He presented evidence to show that he was at the Lakewood Theater around the time the prosecution claimed the murder took place.   Larry Dawson, a former manager of the theater and a former teacher of appellant, was at the theater sometime between 10:15 and 10:45 p.m., about 15 to 20 minutes before “Into the Sun” began, when he saw appellant in the lobby and they conversed.

He also presented evidence to show the murder in fact was committed by unknown males and took place long after he returned home.   Dennis Letvin's residence was on the cliff within sight of the baseball field to the west.   At 2:30 a.m., February 2, 1992, he heard a male say, “where are you, where are you,” and saw a male outside walk across his house searching for someone.   He then saw a shorter male, who was about 10 to 15 years old and wearing a baseball cap, walk westward towards the baseball diamond.   The first male was then about six feet behind the other.   The two then walked over and got into the passenger side of a big, older green car in the parking lot which already had four to six people inside.   The car then sped away eastbound.

Additionally, he offered evidence to show the wires used to kill Giraldo did not come from his garage.   Mike Konnley designed guitar strings and worked for Dean Markley, Inc., a manufacturer of guitar, bass, and other strings.   Konnley testified the two wire pieces found at the scene were bass guitar strings that had been connected together at one time and were 0.08 or “80” gauge.   A guitar string, however, is never sold on a spool or in a bindle but are sold in sets.   The strings found at the crime scene were of a different gauge than the strings in the set found in McDonald's garage.

Konnley, however, further testified that each string in a set is a wire of a different gauge.   Thus, if a string of a particular gauge were removed from the set, there would be no string in the set which would match it.   The set of strings found in appellant's garage was manufactured by his company and originally contained various strings, each a different gauge, including one which was an 0.08 or “80” gauge.

DISCUSSION

1. Evidence of Corroboration Sufficient

Appellant contends his conviction must be reversed for the reason there was insufficient evidence to corroborate the testimony of McNary, appellant's accomplice.   We disagree.   The record contains substantial evidence in this regard.

 Only the testimony of the accomplice connecting the defendant with the crime must be corroborated with evidence independent of such testimony.   (People v. Zapien (1993) 4 Cal.4th 929, 982, 17 Cal.Rptr.2d 122, 846 P.2d 704;  People v. Fauber (1992) 2 Cal.4th 792, 834, 9 Cal.Rptr.2d 24, 831 P.2d 249.)   Such evidence “ ‘is sufficient if it tends in some degree to implicate the defendant.’  [Citation.]  ‘[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.’ ”  (People v. Perry (1972) 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d 129, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 28, 164 Cal.Rptr. 1, 609 P.2d 468.)   Moreover, such evidence may be circumstantial rather than direct in nature.  (People v. Taylor (1966) 247 Cal.App.2d 11, 14, 55 Cal.Rptr. 521.)   Unless the corroborating evidence “could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.”  (People v. Perry, supra, 7 Cal.3d 756, 774, 103 Cal.Rptr. 161, 499 P.2d 129;  italics in original;  fn. omitted;  accord, People v. Szeto (1981) 29 Cal.3d 20, 27, 171 Cal.Rptr. 652, 623 P.2d 213.)

The record reveals there was substantial evidence outside of McNary's testimony to establish appellant was with McNary, Davis, MacPherson and Giraldo shortly before the murder.   Tuttle testified that Giraldo was waiting for the arrival of his friends, that he had telephoned Davis about whether MacPherson had left yet, and after telling Tuttle they were here, added that he planned to go to the movies.   Davis's statement to the police that he received a telephone call from Giraldo and that MacPherson drove Davis to Giraldo's place corroborated this testimony.   Giraldo also told his mother that he planned to go to the movies with MacPherson.   Between 7:30 and 8:00 p.m., appellant's mother saw appellant and McNary leave together with MacPherson in the latter's car.   Around 11:30 p.m. Davis's mother saw appellant, MacPherson, and McNary with her son at Davis's home.   On the day of the killing McNary was staying at appellant's residence.   They arrived home together around midnight and were still there the next morning.

That Giraldo was with appellant, McNary, Davis and MacPherson in the latter's car is a reasonable inference based on the evidence that the remote to MacPherson's car CD player was found in Giraldo's pants pocket when his body was discovered and that MacPherson, assisted by Davis, looked for the remote in his car after the murder for about an hour at 1 a.m.

 Evidence independent of McNary's testimony also exists which reflects appellant's presence at the time of the killing.   When the police were transporting appellant and Davis, appellant stated, “ ‘[The police] listened to a bunch of old people who look out their windows too much.’ ”   His statement is indicative of his familiarity with the scene of the crime.   Similarly, Davis stated “ ‘they couldn't see anything, it was too dark,’ ” which indicated he must have known what the lighting conditions were at the time and place of the killing.   Appellant's silence in the face of Davis's statement is an adoptive admission that he was at the scene of the crime.  (Evid.Code, § 1221.)

Moreover, a reasonable inference that appellant used a guitar string from his set in his garage to kill Giraldo can be drawn from the fact that Giraldo was strangled with a guitar string which could have been from the incomplete set found in appellant's garage.   The broken guitar string used to kill Giraldo and found at the scene was a 0.80 or “80” gauge wire.   Although appellant's set of guitar strings originally contained a string of that gauge, the 0.08 or “80” gauge string was missing from his set and was not subsequently found.

Based on the foregoing, it is clear that there was sufficient evidence without McNary's testimony which “ ‘tends to connect the defendant with the commission of the offense in such a way as reasonably [could] satisfy a jury that the accomplice is telling the truth․’ ”  (People v. Perry, supra, 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d 129;  citation omitted.)

2. Prejudicial Juror Misconduct Necessitates New Trial

Appellant contends the trial court erred in denying his motion for a new trial made on the ground that juror Alicia Wade committed prejudicial misconduct.   We agree.

a. Procedural and Factual Background

Appellant's motion for a new trial was supported by his counsel's declaration averring that two weeks after the verdict, the jury foreperson, Julia Robinson, informed him over the telephone that another juror, Ms. Wade, had formed opinions and made comments evidencing a disposition to convict the defendants, including appellant, prior to the submission of the case to the jury.

At the hearing on the motion Ms. Robinson testified that after Chavares McNary, an accomplice witness called by the prosecution, walked into the courtroom and took the witness stand, Ms. Wade said, “ ‘Those three little rich white boys thought they could pay a nigger [meaning McNary] to do their dirty work.’ ” ²  Ms. Robinson added that in making the statement Ms. Wade swiveled her juror chair towards Ms. Robinson, placed a hand to the side of her mouth, and whispered it to Ms. Robinson.   Ms. Robinson also testified that Ms. Wade later commented that she thought appellant's mother was “high” and opined “as far as his background and because he was raised in that type of an environment she didn't doubt that he would commit a crime such as he's been accused of.”   Ms. Robinson allowed that those were not Ms. Wade's exact words but that they were “pretty much what she said.”   These comments were made by Ms. Wade to Ms. Robinson while they were in the jury box or sitting on a bench down the hall from the courtroom.   Ms. Robinson testified that during the defense opening statement, Ms. Wade told her “ ‘They did it.’ ”   Ms. Wade also stated she was ready to give her verdict as the jurors were escorted into the jury room for deliberations.   Ms. Robinson further testified that Ms. Wade was the last holdout for first degree murder but finally agreed to vote for the acquittal of MacPherson and Davis and to convict appellant of second degree murder.   Ms. Wade was in court for the hearing on the new trial motion, but was not called to testify.³

In denying the motion the trial court stated, “[E]ven if I accept ․ [Ms. Robinson's testimony] at worst, the only comment that bothers me a little is the comment at the threshold of the jury room.   The rest of them, as far as I'm concerned, did not rise to the level where even Ms. Robinson thought that they were serious.   And the fact of the matter is that the voting indicates to me that seriousness may be irrelevant, because she did listen to what other people had to say and had her mind changed.   That's very clear.  [¶] The statements at the threshold of the deliberation room concerns me some because it's contrary to my instructions that they're to listen to each other and all of that.   The same comments may be made of it also and that is that there is a lot of proof by your own witness that whatever [Ms. Wade's] feelings and conclusions and opinions may have been, even at that moment they were changed.   And I have to infer that because when somebody says, ‘I'm ready to give my verdict’ and thereafter votes not guilty, query what her verdict was at that point [?]  [¶] ․ I will give the defense the benefit of the doubt and assume that what she was saying is that she was ready to vote guilty.   It was a stupid comment on her part perhaps, but hardly conclusive.  [¶] The fact of the matter is she voted not guilty as to two of them and then changed her mind as to the guilt [of appellant].   Surely, she changed her mind as to the degree of [murder], ․ [¶] So it seems to me that whatever these comments [were] ․ whatever concern she mentioned, [or] may have raised [were] substantially ameliorated by substantial conduct.”

After further argument, the trial court added, “I didn't find any reason to disbelieve [Ms. Robinson].   I might have some problems with whether I agreed about her evaluation, but I don't think she made this out of whole cloth.   She is not coming in here telling me about statements [she] didn't hear.   I could get Miss Wade in here and find out what she said.   It might be a word or two different.   Miss Wade, in fact may even deny it.   I will speak for the record that I didn't find the testimony even after cross-examination to be shaken in terms of whether she heard these statements.   I just don't think that even if [these] statements were made that they rise to a hill of beans.   That's my finding.”

b. Standard of Review

Appellant's claim of jury misconduct is grounded on the principle that “one accused of a crime has a constitutional right to a trial by impartial jurors.   [Citations.]  “ ‘The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.’ ”  [Citations.]”  (In re Hitchings (1993) 6 Cal.4th 97, 110, 24 Cal.Rptr.2d 74, 860 P.2d 466.)  “Article I, section 16, of the California Constitution declares in relevant part that ‘[trial] by jury is an inviolate right and shall be secured to all․’  It is settled that in criminal cases the right so declared includes in this state the right to a unanimous verdict.  [Citations.]  It is equally settled that the provision includes the right to have that verdict rendered by impartial and unprejudiced jurors.  Section 16 of article I does not explicitly guarantee trial by an ‘impartial’ jury as does the Sixth Amendment to the federal Constitution;  but that right is no less implicitly guaranteed by our charter, as the courts have long recognized.  [Citation.]”  (People v. Banner (1992) 3 Cal.App.4th 1315, 1323–1324, 5 Cal.Rptr.2d 125.)

To implement his constitutionally guaranteed right to an impartial jury trial, appellant has invoked section 1181, subdivision 3, which provides for a new trial “[w]hen the jury has ․ been guilty of any misconduct by which a fair and due consideration of the case has been prevented[.]”  “ ‘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, supra, 45 Cal.3d 1268, 1318, 248 Cal.Rptr. 834, 756 P.2d 221;  citation omitted.)  “The trial court must nevertheless examine the proffered basis for the new trial motion and determine whether credible and admissible evidence substantiates the underlying allegations.”  (People v. Cox, supra, 53 Cal.3d 618, 697, 280 Cal.Rptr. 692, 809 P.2d 351.)  “If the evidence is admissible, the court must then consider whether the facts establish [juror] misconduct.   [Citation.]  Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.”  (People v. Von Villas (1992) 11 Cal.App.4th 175, 255, 15 Cal.Rptr.2d 112;  citations omitted.)  “[J]ury misconduct raises a presumption of prejudice;  and unless the prosecution rebuts that presumption by proof that no prejudice actually resulted, the defendant is entitled to a new trial.”  (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.)   In testing for prejudice “we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.   [Citation.]  The judgment must be set aside if the court finds prejudice under [this] test.”  (In re Carpenter (1995) 9 Cal.4th 634, 653, 38 Cal.Rptr.2d 665, 889 P.2d 985;  italics added;  citations omitted.)

c. Application of Standard Reveals Prejudicial Juror Misconduct

(1) Finding of Juror Misconduct Supported By Ample Evidence

 Based on our review of the record we conclude the trial court correctly found that Ms. Wade made the statements attributed to her by Ms. Robinson and that such statements constituted juror misconduct because they reflected her predisposition to convict appellant regardless of the state of the evidence.   Nonetheless, we further conclude that the court erred in finding such misconduct to be nonprejudicial.  “The right of every criminal defendant to trial by a jury that considers only the evidence admitted in court is, of course, fundamental.  (U.S. Const., Amends. VI, XIV;  Cal. Const., art. I, § 16;  Turner v. Louisiana (1965) 379 U.S. 466, 472–473 [85 S.Ct. 546, 549–550, 13 L.Ed.2d 424].)”  (People v. Stanley (1995) 10 Cal.4th 764, 836, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

The Attorney General's contention that the trial court found no jury misconduct is based solely on the trial court's isolated observation that “even [Ms.] Robinson [did not think] they [Ms. Wade's statements] were serious.”   However, we cannot ignore the trial court's subsequent comment that “seriousness may be irrelevant, because [Ms. Wade] did listen to what other people had to say and had her mind changed.   That's very clear.”   This latter comment reveals the court in fact found juror misconduct but further found such misconduct not to be prejudicial based on the jury's unanimous verdict of acquittal of two of the defendants and of conviction of appellant of second degree murder, not first degree, contrary to Ms. Wade's initially declared disposition.   Indeed, the trial court could not have characterized Ms. Wade's conduct as other than misconduct, as we shall hereafter explain.

Ms. Wade was not called as a witness to deny or explain the statements attributed to her.   The Attorney General acknowledges that Ms. Robinson's testimony regarding the statements of Ms. Wade is admissible, but contends it is insufficient to show jury misconduct.   He urges that Ms. Wade was in fact impartial because she “clearly did deliberate with the balance of the jury, and change[d] her mind during the course of deliberations.”   The trial court found that Ms. Robinson's testimony was unimpeached and stated it did not “disbelieve” her.   Even if Ms. Robinson initially did not give Ms. Wade's statements the significance she attached to them later, it is of no moment.   The trial court believed Ms. Robinson was truthful when she testified that Ms. Wade had expressed her opinion about the defendants' guilt and indicated a level of racial enmity against them.   The Penal Code provides that jurors must not during trial “converse among themselves, or with anyone else, on any subject connected with the trial,” nor “form or express any opinion thereon until the cause is finally submitted to them.”  (§ 1122, subds. (a), (b).)  “Violation of this duty is serious misconduct.  [Citation.]” ⁴  (In re Hitchings, supra, 6 Cal.4th at p. 118, 24 Cal.Rptr.2d 74.)   The trial court could hardly view Ms. Wade's comments as inconsequential even if Ms. Robinson did not regard Ms. Wade's statements as serious.   Ms. Wade's violation of her oath and the admonitions given to the jury is sufficient to establish misconduct and the trial court so found.   We now turn to the question of prejudice.

(2) Presumption of Prejudice Not Rebutted

“It is well settled that a presumption of prejudice arises from any juror misconduct.”  (People v. Honeycutt (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050.)  “As a general rule, juror misconduct ‘raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.’  [Citations.]”  (In re Hitchings, supra, 6 Cal.4th at p. 118, 24 Cal.Rptr.2d 74.)   Although the trial court found jury misconduct, it concluded the misconduct did not result in prejudice based on the fact that Wade joined in the unanimous verdict to acquit two defendants and to convict appellant of second degree murder instead of first degree murder.   The trial court's observations and findings demonstrate this rationale for concluding there was no prejudice:  “[S]he voted not guilty as to two of them and then changed her mind as to the guilt.   Surely, she changed her mind as to the degree of guilt,․  [¶] So it seems to me that whatever [her] comments [were] ․ [and] [w]hatever concern she mentioned, [or] may have raised was substantially ameliorated by substantial conduct.”   Essentially the trial court viewed the result as one of no harm, no foul, because Ms. Wade ultimately deliberated with and joined in the unanimous verdict of the other jurors.   The trial court simply relied on the fact that the jury reached a unanimous verdict which appeared inconsistent with Ms. Wade's predeliberation statements.

 Jury misconduct takes many forms.  (E.g., People v. Marshall (1990) 50 Cal.3d 907, 269 Cal.Rptr. 269, 790 P.2d 676 [juror informed other members of the jury he had law enforcement background and gave them erroneous and extraneous propositions of law];  People v. Holloway (1990) 50 Cal.3d 1098, 269 Cal.Rptr. 530, 790 P.2d 1327 [juror read a newspaper account stating the defendant was on parole];  In re Hitchings, supra, 6 Cal.4th 97, 24 Cal.Rptr.2d 74 [juror concealed prior information about the case and engaged in discussions about it with third person while serving as a juror].)   Here the jury misconduct consisted of the juror's declared opinion of appellant's guilt early in the trial and before the presentation of the case for the defense.   This species of jury misconduct requires an assessment of whether there is actual bias precluding a fair and impartial determination of the case.

 “To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial.   The verdict will be set aside only if there appears a substantial likelihood of juror bias.   Such bias can appear in two different ways.   First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.  (E.g., People v. Holloway, supra, 50 Cal.3d at pp. 1110–1112, 269 Cal.Rptr. 530, 790 P.2d 1327;  People v. Marshall, supra, 50 Cal.3d at pp. 951–952, 269 Cal.Rptr. 269, 790 P.2d 676).   Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.  (E.g., In re Hitchings, supra, 6 Cal.4th at p. 121, 24 Cal.Rptr.2d 74.)   The judgment must be set aside if the court finds prejudice under either test.”  (In re Carpenter, supra, 9 Cal.4th at p. 653, 38 Cal.Rptr.2d 665, 889 P.2d 985;  italics added.)   We hold that where, as here, the juror misconduct consists of statements by a juror evidencing a predisposition to convict the defendant regardless of the evidence the test for prejudice is simply “whether it is substantially likely the juror was actually biased against the defendant.”  (Ibid.)

Relying on People v. Brown (1976) 61 Cal.App.3d 476, 132 Cal.Rptr. 217, appellant argues that jury misconduct of this nature requires that he be granted a new trial.   We agree.   In Brown a juror made a statement showing he had prejudged the case by clearly expressing an opinion of guilt before he had heard all the evidence.   He stated, “ ‘ “He is guilty.”  “There is no doubt about it.”   Then he moved his hand in an abrupt jester [sic ] of finality [, which] occurred before the prosecution had completed its case.’ ”   (Id. at p. 479, 132 Cal.Rptr. 217.)   Since this evidence was uncontradicted, as it is here, Brown did not apply the rule that the factual determinations of the trial court are determinative on appeal.  (Id. at p. 481, 132 Cal.Rptr. 217.)   The Brown jury deliberated and found the defendant guilty on two counts, acquitted him on eight counts and failed to reach a verdict on the remaining seven.   The prosecution urged that because the offending juror had voted for acquittal on eight counts, his mind was not made up and he was demonstrably impartial.   The Brown court opined that conclusion was not compelled, “especially in view [of the fact that] the offending juror voted in favor of holding appellant guilty on all counts from the beginning of deliberations.   What negotiations or events occurred to cause the juror to vote for acquittal on those counts and the motivation and reason therefor are, of course, beyond the competence of affidavits to show or this court to consider on the issue of jury misconduct.  (See Evid.Code, § 1150.)”  (Id. at p. 482, 132 Cal.Rptr. 217.) ⁵

 To paraphrase Brown, “It is manifest that the statement[s] of [Ms. Wade] made during the ․ trial and ․ before the prosecution had rested its case ․ indicate[ ] that [she] in fact prejudged the case by expressing a clear opinion of guilt before [she] had heard all the evidence, and that such ․ statement[s] [were] in violation of the court's instructions and constituted serious misconduct.”  (People v. Brown, supra, 61 Cal.App.3d at p. 480, 132 Cal.Rptr. 217;  compare People v. Anderson (1990) 52 Cal.3d 453, 481, 276 Cal.Rptr. 356, 801 P.2d 1107.)   Like the respondent in the Brown case, the Attorney General argues that the verdict is inconsistent with Ms. Wade's predeliberation statements and shows that her mind was not made up.   We are no better qualified to speculate what negotiations, motivations or events induced Ms. Wade to change her position than was the Brown court when it confronted essentially the same issue.   That is simply “․ beyond the competence of [the evidence] to show or this court to consider on the issue of jury misconduct.”  (People v. Brown, supra, 61 Cal.App.3d at p. 482, 132 Cal.Rptr. 217.)

 In People v. Pierce, supra, 24 Cal.3d 199, 155 Cal.Rptr. 657, 595 P.2d 91, the errant juror had ex parte conversations with a police officer witness to inquire about the interpretation of evidence and other matters related to the trial.   The prosecution contended that because the other jurors were not similarly tainted and voted to convict the defendant, the presumption of prejudice was rebutted.   The court rejected that argument on the ground that a single improperly influenced juror violates the right of a defendant to a unanimous verdict by impartial jurors.  (Id. at p. 208, 155 Cal.Rptr. 657, 595 P.2d 91.)   This standard is equally valid with respect to a juror who is actually biased.

A defendant is entitled to be tried by 12, not 11, impartial and unprejudiced jurors.  “ ‘Because a defendant ․ has a right to a unanimous verdict of 12 impartial jurors [citations], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’   [Citations.]”  (People v. Holloway, supra, 50 Cal.3d at p. 1112, 269 Cal.Rptr. 530, 790 P.2d 1327.)

 Here the prosecution offered no evidence to rebut the presumption of prejudice.   Ms. Robinson's testimony was the only competent evidence before the court.   Ms. Wade was not called as a witness at the hearing.   The trial court could not draw any evidentiary inferences based on the jury's verdict, even though the verdict reflected a departure from Ms. Wade's statements and prior disposition to convict appellant of first degree murder.   Any interpretation of Ms. Wade's conduct during deliberations would be purely speculative.  (Compare People v. Green (1995) 31 Cal.App.4th 1001, 1013–1014, 38 Cal.Rptr.2d 401 [juror's statement in deliberations that he knew defendant was guilty the minute he saw defendant in court did not establish misconduct of prejudging the case, where at the hearing on the motion for new trial the judge believed the juror's testimony that he did not prejudge guilt and that his statement at the beginning of deliberations was based on all the evidence introduced at trial].)

 We simply have no way of knowing by admissible evidence what transpired during deliberations or what effect Ms. Wade's strongly held views had on the other jurors.   On the other hand, when a juror violates his or her oath and disobeys the statutory admonition not to prematurely form or express an opinion, that bias is not mitigated simply because the juror retreats from the extremity of such position and acquiesces in the views of the other jurors.   Ms. Wade not only prejudged the case but coupled her prejudgment with an expression of racial enmity.   Her comments clearly were not indicative of a tepid or pliant attitude.   If Ms. Wade had not formed an opinion of appellant's guilt prior to the presentation of the case for the defense and had she maintained an open mind before embarking on deliberations, the jurors' discourse may have been substantially different.

 We therefore cannot conclude that Ms. Wade's declared bias against the defendants, generally and appellant in particular, was sufficiently ameliorated in that it played no part in appellant's conviction.   In the absence of contrary evidence we are compelled to find that juror Wade was actually prejudiced against appellant.   The verdict must be set aside no matter how convinced we might be that an unbiased jury would have reached the same verdict.  “To be sure, once actual bias is found, the strength of the evidence is irrelevant;  the verdict must be set aside.”  (In re Carpenter, supra, 9 Cal.4th at pp. 654, 655, 38 Cal.Rptr.2d 665, 889 P.2d 985.)

3. Remaining Contentions

The above disposition obviates the need to address appellant's remaining contentions.

DISPOSITION

The judgment is reversed with directions to vacate the order denying the motion for a new trial and to enter a new order granting the motion.

CHARLES S. VOGEL, Associate Justice.

ARLEIGH M. WOODS, P.J., and HASTINGS, J., concur.