PEOPLE v. RODRIGUEZ (1991)

After a jury trial defendant was convicted of two counts of first degree murder and was sentenced to death.   On automatic appeal the Supreme Court affirmed the judgment in all respects but vacated the death sentence and remanded to the trial court “solely for prompt reconsideration of [defendant's] automatic application for modification of the death verdict ( [Pen.Code,] § 190.4, subd. (e)) under the standards set forth in this opinion.” ¹  (People v. Rodriguez (1986) 42 Cal.3d 730, 794, 230 Cal.Rptr. 667, 726 P.2d 113 (hereafter Rodriguez ).)   Instead of complying with this order, the trial court entertained and granted a petition for writ of habeas corpus because it found that prejudicial juror misconduct occurred during deliberations of the guilt phase.   The trial court then reduced the death sentence to one of life without possibility of parole because it had granted the writ.

The People appeal from the two orders of the superior court, the first granting defendant's petition for writ of habeas corpus (No. A043881), and the second reducing the jury's death verdict to a judgment of life without possibility of parole (No. A046143).   We reverse both orders.   We hold that the petition for writ of habeas corpus was untimely and could have been denied for that reason.   In any event, we hold that although juror misconduct occurred, it was harmless, and therefore the writ should have been denied.   We further hold that the trial court erred in refusing to follow the clear direction of the Supreme Court.   We remand the matter to the trial court for reconsideration of defendant's automatic application for modification of the death verdict.

FACTS

The facts are recited in detail by the Supreme Court in Rodriguez, supra, 42 Cal.3d at pages 742–747, 230 Cal.Rptr. 667, 726 P.2d 113, and need not be repeated here.   In sum, defendant's woman friend, who was the chief prosecution witness, testified that at the time of the murders defendant was the driver and she was the sole passenger in a stolen car which was stopped by the highway patrol.   Defendant got out of the car.   The witness heard shots.   Defendant later told her that he had struggled with the officers, handcuffed one of them, and shot him in the head.   Defendant was found guilty of murdering two highway patrol officers in this incident.

PRIOR APPEAL TO THE SUPREME COURT

“Luis Valenzuela Rodriguez [previously appealed to the Supreme Court] from a judgment of death imposed for the first degree murders of California Highway Patrol Officers William H. Freeman and Roy Paul Blecher on December 22, 1978.   The jury found that [defendant] had personally used a firearm in both murders (Pen.Code, § 12022.5) ² AND, AS SPECIAL circumstances justifying the death penalty, that he was convicted of more than one murder (§ 190.2, subd. (a)(3)) and that both victims were peace officers intentionally killed while in the performance of their duties (§ 190.2, subd. (a)(7)).   The crimes were committed in Yolo County, but pursuant to [defendant's] motion for change of venue, the case was transferred to San Mateo County for trial.”  (Rodriguez, supra, 42 Cal.3d at p. 742, 230 Cal.Rptr. 667, 726 P.2d 113.)

The Supreme Court found no prejudicial error in the guilt phase of defendant's trial and therefore affirmed the convictions, as well as the allegations of special circumstances found true by the jury.   The court rejected all but one of defendant's challenges to the penalty phase, including his attacks on the constitutionality of California's 1978 death penalty law.   (Rodriguez, supra, 42 Cal.3d at p. 742, 230 Cal.Rptr. 667, 726 P.2d 113.)

The court concluded, however, that in deciding the automatic application for modification of death verdict (§ 190.4, subd. (e)), the trial court erred.   “The trial court's ruling on [defendant's] automatic application for modification was as follows:  ‘Having considered the arguments of counsel and having considered all of the evidence received in the matter, and having considered, taken into account and being guided by the aggravating and mitigating circumstances referred to in Penal Code Section 190.3, the Court finds that the aggravating circumstances outweigh the mitigating circumstances and that the weight of the evidence supports the jury's verdict of death.  [¶] Accordingly, defendant's motion for modification of the jury's verdict of death must be, and hereby is, denied.’ ”  (Rodriguez, supra, 42 Cal.3d at pp. 792–793, 230 Cal.Rptr. 667, 726 P.2d 113.)   The Supreme Court held that the trial court failed to make an independent determination, as required by the statute, whether the death penalty was proper under the law and evidence.   The court therefore vacated the penalty judgment and remanded to the trial court for reconsideration of the modification application.  (Id., at pp. 794–795, 230 Cal.Rptr. 667, 726 P.2d 113.)

PROCEEDINGS ON REMAND

In October 1986, the Supreme Court remanded the cause to the trial court “solely” for the “prompt ” reconsideration of the automatic application for modification.  (Rodriguez, supra, 42 Cal.3d at pp. 742, 794, 230 Cal.Rptr. 667, 726 P.2d 113, emphasis added.)   The trial court did not comply with this order in any way, that is, it neither acted promptly nor reconsidered the application on the merits.   Rather, it engaged in protracted hearings on a motion for new trial and later the petition for writ of habeas corpus.   For years the trial court insisted that the order of the Supreme Court was ambiguous and needed clarification.

The trial court issued an order to show cause in the habeas action on December 17, 1987.   After months of briefing on both the habeas and the modification motion, the court granted the writ in August 1988.

More than two years after it had remanded the matter to the trial court, the Supreme Court issued a peremptory writ of mandate, expressly finding that the trial court “failed to comply” with its previous order and ordering the court to rule “forthwith” on the automatic application for modification.   The trial court refused to comply.

Ultimately, on April 14, 1989, the trial court stated that because it had granted defendant's writ petition and a new trial, it was without jurisdiction to sentence him on the prior invalid jury verdict.   Nevertheless, the court found that because of its order granting new trial, the jury's verdict of death “was contrary to the law.”   The court declined to engage in the weighing process which the Supreme Court had directed it to do but held:  “Under the mandate of the Supreme Court and ․ statutory authority, this court exercises its independent judgment and modifies the sentence of death to one of life without possibility of parole.”

On May 12, 1989, the court sentenced defendant to two concurrent terms of life without possibility of parole without engaging in the mandatory weighing process.

MODIFICATION OF DEATH VERDICT (NO. A046143)

Section 190.4

Section 190.4 provides, in pertinent part:  “(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section [1181].   In ruling on the application, the [trial court] shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.   The [court] shall state on the record the reasons for [its] findings.”

“The [court] shall set forth the reasons for [its] ruling on the application and direct that they be entered on the Clerk's minutes.   The denial of the modification of the death penalty verdict ․ shall be reviewed on the defendant's automatic appeal․  The granting of the application shall be reviewed on the People's appeal pursuant to [section 1238, subdivision] (6).”

When the trial court rules on the modification motion, its function is defined and limited by the above statute.  “Thus, quite apart from any constitutional prohibition, the trial court is prohibited by statute from considering, when ruling on the modification motion, any evidence not presented to the jury during the trial.  (People v. Jennings (1988) 46 Cal.3d 963, 994 [251 Cal.Rptr. 278, 760 P.2d 475].)”  (People v. Lang (1989) 49 Cal.3d 991, 1044, 264 Cal.Rptr. 386, 782 P.2d 627.)

 The court below did not comply with this requirement, because it granted modification not based upon any evidence that was before the jury, but based upon the court itself having granted the habeas petition.   This act was error.   The trial court should not have been influenced by its concerns about validity of the guilty verdicts when it ruled on the question under section 190.4, subdivision (e), which had been placed before it by order of the Supreme Court.   The fact that the trial court had granted habeas relief did not relieve it of the obligation to rule on the modification motion in accordance with statute and case law, and as directed by the Supreme Court in both Rodriguez and in a writ of mandate.

Even if the Supreme Court had not unequivocally ordered the trial court to rule promptly on the modification motion, and even if the trial court were correct in granting the writ of habeas corpus, the orderly administration of justice still required that the trial court render an appropriate ruling on the modification motion.   In so doing, the court would assure that a proper determination could be made on two issues, whether this court or the Supreme Court would hear the People's appeal from the granting of the writ of habeas corpus, and whether the People could seek a death penalty in the event of retrial.

 Thus we hold, as did the Supreme Court in the automatic appeal, that a remand is necessary for reconsideration of the application for modification of the death verdict.   As a general rule, it is preferable that it be the trial judge who reconsiders the application on the basis of the record certified on the automatic appeal.   It is permissible, however, where the trial judge is “unavailable,” to have the matter heard by another judge of the same court.  (People v. Lewis (1990) 50 Cal.3d 262, 287, 266 Cal.Rptr. 834, 786 P.2d 892.)   Because of the excessive delay which already has occurred in this matter, and because of the trial judge's familiarity with the case, we will order that the trial court must rule on the automatic motion within 90 days of our decision's becoming final.   If he fails to do so for any reason, we order that he be deemed “unavailable,” and that the matter be assigned to another judge of the same court who will make a prompt ruling based on the record as certified to the Supreme Court.

GRANT OF HABEAS CORPUS (NO. A043881)

Timeliness of the Petition

It is apparent that defense investigators or attorneys did not interview jurors until after remand from the Supreme Court.   In April 1987, they developed evidence which tended to show that one juror, Shelby Martin, engaged in misconduct by undertaking a personal investigation of one factual aspect of the evidence at trial and presenting his findings to the other jurors.   The petition for writ of habeas corpus based on this investigation of juror misconduct was filed in December 1987, more than a year after the Supreme Court filed its decision and more than six years after the jury reached the verdict which the petition attacked.   We hold that the petition was not timely filed, and the trial court could have denied it for that reason.

 “Although jury misconduct during deliberations is most often raised by motion for new trial and appeal (see, e.g., People v. Hutchinson (1969) 71 Cal.2d 342, 346 [78 Cal.Rptr. 196, 455 P.2d 132] ), it may also be alleged as a ground of habeas corpus (see, e.g., In re Winchester (1960) 53 Cal.2d 528, 531–532 [2 Cal.Rptr. 296, 348 P.2d 904] ).”  (In re Stankewitz (1985) 40 Cal.3d 391, 397, 220 Cal.Rptr. 382, 708 P.2d 1260.)   At the same time, in a habeas corpus proceeding the burden is on the petitioner to justify both the failure to raise the point on appeal and any substantial delay in seeking relief.  (Id., at pp. 396–397, fn. 1, 220 Cal.Rptr. 382, 708 P.2d 1260, citing People v. Jackson (1973) 10 Cal.3d 265, 268, 110 Cal.Rptr. 142, 514 P.2d 1222;  In re Streeter (1967) 66 Cal.2d 47, 52, 56 Cal.Rptr. 824, 423 P.2d 976.)

That is, “one who seeks extraordinary relief ․ must point to particular circumstances sufficient to justify substantial delay, as [Supreme Court decisions] have long required.”  (In re Stankewitz, supra, 40 Cal.3d at p. 397, fn. 1, 220 Cal.Rptr. 382, 708 P.2d 1260.)   The purpose of this requirement is not to impose on a defendant an undue burden of complying with technicalities;  rather, it simply demands of the defendant “a measure of frankness in disclosing his factual situation.”  (In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793.)   For example, in In re Ronald E. (1977) 19 Cal.3d 315, 137 Cal.Rptr. 781, 562 P.2d 684, a juvenile attempted to raise by petition for writ of habeas corpus in 1977 a lack of compliance with Boykin–Tahl requirements (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) at proceedings held in 1971 and 1973.  (In re Ronald E., supra, 19 Cal.3d at pp. 319–320, fn. 1, 321–322, 137 Cal.Rptr. 781, 562 P.2d 684.)   The Supreme Court held that in light of the juvenile's failure to appeal and the absence of “special circumstances constituting an excuse” for that failure, his lack of diligence was inexcusable, and he waived the constitutional defects which he attempted to claim.  (Id., at p. 322, 137 Cal.Rptr. 781, 562 P.2d 684.)

 Here, too, defendant “presents absolutely no justification for his [six-year] delay in attacking the judgment of guilt on this ground.”   (People v. Jackson, supra, 10 Cal.3d at p. 268, 110 Cal.Rptr. 142, 514 P.2d 1222.)   The People raised this point in their return to the petition, and defendant did not adequately meet it in his traverse.   He alluded to the possibility of making an argument that his attorneys were inadequate because of lack of diligence in investigating misconduct, but he neither pursued the point nor explained in any manner why it took the defense six years to discover the misconduct.   We therefore conclude that the petition was not timely, and that it would have been proper for the trial court to deny it for that reason alone.  (In re Stankewitz, supra, 40 Cal.3d at p. 397, fn. 1, 220 Cal.Rptr. 382, 708 P.2d 1260;  6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Extraordinary Writs, §§ 3339, 3350, pp. 4137, 4155.)

The Merits of the Petition

Even if the petition is deemed to have been timely filed, the trial court erred in granting it on the merits.

The testimony at trial was that defendant and his companion, chief prosecution witness Margaret Klaess, left Crockett by car for Sacramento at 1:30 a.m. (defendant) or 2:30 a.m. (prosecution witness Engel).  (Rodriguez, supra, 42 Cal.3d at pp. 746, 743, 230 Cal.Rptr. 667, 726 P.2d 113.)   The murders took place about an hour's drive from Crockett, at about 3:40 a.m.  (Id., at pp. 742–743, 772–773, 773, fn. 12, 230 Cal.Rptr. 667, 726 P.2d 113.)   In his affidavit in support of the petition, Juror Martin states that during trial he was visiting friends near Crockett.   Because he considered timing to be an issue, he drove to the bar from which he believed defendant left for Sacramento,³ and then drove onto the freeway.   When he was on the freeway he noticed a sign showing the mileage to Sacramento, and he calculated how long it would take to drive there.   He determined that defendant could have been at the crime scene at the time the crime was committed.

Martin's affidavit goes on to state that on the same trip he noticed that he could not accurately observe or recall the color and make of cars parked along the freeway, although at trial some motorists testified to seeing a light-colored car by the road on the night in question and others testified to seeing cars of different descriptions.  (Rodriguez, supra, 42 Cal.3d at p. 747, 230 Cal.Rptr. 667, 726 P.2d 113.) ⁴

Affidavits from some of the other jurors show that Martin shared his information with them.

 We agree with defendant and with the trial court that Martin's actions constituted misconduct.  “Jurors are not allowed to obtain information from outside sources ․ as to factual matters․  [Citations.]”   If they do so, this is misconduct.  (People v. Karis (1988) 46 Cal.3d 612, 642, 250 Cal.Rptr. 659, 758 P.2d 1189.)   The effect of misconduct is as follows.   “ ‘Jury misconduct raises a presumption of prejudice, and “unless the prosecution rebuts that presumption ․, the defendant is entitled to a new trial.”  [Citations.]  The presumption of prejudice “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․”  [Citation.]   Whether a defendant has been prejudiced by a juror's outside communications depends upon “whether the jury's impartiality has been adversely affected, and whether the prosecution's burden of proof has been lightened and whether any asserted defense has been contradicted.”  [Citations.]’  (People v. Miranda (1987) 44 Cal.3d 57, 117 [241 Cal.Rptr. 594, 744 P.2d 1127].)”   (Karis, supra, at p. 642, 250 Cal.Rptr. 659, 758 P.2d 1189;  accord People v. Holloway (1990) 50 Cal.3d 1098, 1108–1110, 269 Cal.Rptr. 530, 790 P.2d 1327.)

The prejudice presumed from juror misconduct has been found rebutted in a number of decisions.   For example, in Karis, one juror committed misconduct in consulting a dictionary for the definition of “mitigating”;  another went to the public library on his lunch break and asked for any books authored by a defense expert witness.   The first juror advised the jury of the definition;  the second told them that the library had no books by the witness.   The trial court denied a motion for new trial, and the Supreme Court found that the misconduct resulted in no prejudice.   The court examined the circumstances of each instance of misconduct and found that neither could have prejudiced jury deliberations.  (People v. Karis, supra, 46 Cal.3d at pp. 642–645, 250 Cal.Rptr. 659, 758 P.2d 1189.)

 In another decision the Court of Appeal found no prejudice where a juror's improper visit to the crime scene did not add any contradictory information to the jury's deliberations and where there was no real issue about the crime scene before the jury.  (People v. Sutter (1982) 134 Cal.App.3d 806, 820–821, 184 Cal.Rptr. 829;  People v. Holloway, supra, 50 Cal.3d at p. 1110, 269 Cal.Rptr. 530, 790 P.2d 1327.)   A similar situation is presented by the record before us.

The length of time it would take defendant to drive from Crockett to the crime scene was uncontested—prosecution and defense witnesses agreed on the one-hour figure.   It was not how long it took to make the trip, but what time they left Crockett, which was considered a critical issue at trial.  (See, e.g., Rodriguez, supra, 42 Cal.3d at pp. 770–774, 771, fn. 10, 773, fn. 12, 230 Cal.Rptr. 667, 726 P.2d 113, wherein the Supreme Court found little materiality to one witness's testimony that a car similar to defendant's followed her from Vacaville to Davis between 2:00 and 2:45 a.m.)   The juror's misconduct had no relevance to that question.   Thus, the evidence of misconduct before the trial court was not “of such a character as is likely to have influenced the verdict improperly.”  (Evid.Code, § 1150, subd. (a).)  The court therefore erred in granting the writ on the merits.

 We find further support for our conclusion in declarations of eight of the jurors.   When we consider these affidavits, we must keep in mind the prohibition against admission of evidence “to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him [or her] to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”  (Evid.Code, § 1150, subd. (a).) ⁵  Although we must discount jurors' subjective feelings, we may look to the entire record to determine whether the presumption of prejudice has been rebutted.  (People v. Ryner (1985) 164 Cal.App.3d 1075, 1083, 211 Cal.Rptr. 140.)

Two of the jurors did not even recall Martin's making a presentation.   The other juror affidavits show these objective facts.   Before Martin made his “presentation” to the jury, the vote for guilt was eleven to one.   After Martin's presentation, the vote continued to be eleven to one.

When we consider all of the pertinent factors in evaluating whether the presumption of prejudice has been rebutted (People v. Ryner, supra, 164 Cal.App.3d at p. 1082, 211 Cal.Rptr. 140), we conclude with the Sutter court as follows:  “ ‘However strictly the decisions may lay down the rule as to the effect of misconduct of the jury that may well have prejudiced the parties, it is settled in this state that a new trial will not be granted on that ground where the misconduct was of such a trifling nature that it could not in the nature of things have been prejudicial to the moving party, and that where it appears that the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed.  [Citation.]’  [Citation.]”   (People v. Sutter, supra, 134 Cal.App.3d at p. 821, 184 Cal.Rptr. 829.)

DISPOSITION

The order granting petition for writ of habeas corpus and new trial is reversed.

The ruling on the Penal Code section 190.4 motion is vacated, and the cause is remanded to the trial court with directions to rule on the motion in accordance with the directions of the Supreme Court within 90 days of the date this decision is final.   If the trial judge is unwilling or unable to so rule, he shall be deemed unavailable, in which case the master calendar judge is directed to assign the matter to another judge of the same court to rule on the motion based upon the record as it was certified to the Supreme Court on automatic appeal.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.    In a footnote at this point the court states:  “All section references are to the Penal Code unless otherwise indicated.”

3.   Martin was in error.   The evidence showed that defendant left for Sacramento from Jeri Engel's home in Crockett, not from a bar.   (Rodriguez, supra, 42 Cal.3d at pp. 743, 746, 230 Cal.Rptr. 667, 726 P.2d 113.)

4.   It is interesting to note that Martin closes his affidavit with this statement:  “I believe that it was unfair for Margaret Klaess to receive such a light sentence given her involvement in the crime.   I also believe that she was more involved in the commission of the crime than she admitted.”

5.   Thus, the declaration of the holdout juror cannot be considered, insofar as he stated that he was not influenced by the Martin presentation about his calculations, but that ultimately he voted for guilt because his fellow jurors convinced him that defendant had lied about a material fact and therefore probably lied about others.  (People v. Ozene (1972) 27 Cal.App.3d 905, 914, 104 Cal.Rptr. 170.)

CHIN, Associate Justice.

WHITE, P.J., and MERRILL, J., concur.