People v. Jackson CA1/4 ( 2023 )

Filed 3/8/23 P. v. Jackson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A161692
v. (Solano County
MICHAEL JACKSON, Super. Ct. No. VCR221796)
Defendant and Appellant.
Defendant Michael Jackson appeals following the trial court’s order
denying his motion for a new trial. The trial court denied his previous motion
for a new trial after a jury convicted him of second degree murder. Jackson
appealed his conviction on various grounds, including that the jury
committed prejudicial misconduct by discussing his failure to testify at trial
during deliberations. This court issued a limited remand with instructions
for the trial court to conduct an evidentiary hearing on the subject of juror
misconduct because the record was not sufficiently clear as to the extent of
the misconduct. Following an evidentiary hearing on remand, the trial court
(Hon. Daniel Healy) again denied Jackson’s motion for a new trial after
finding that the misconduct did not result in a reasonable probability of
actual harm to him. We affirm.
BACKGROUND
A. Facts Underlying Conviction1
On September 5, 2014, witnesses observed Jackson engaged in a fist
fight with another man at a park. A third man, Albert Dunn, was lying
under a nearby tree and was not involved in the fight. The other man in the
fight grabbed Jackson’s backpack, threw it down, and rummaged through it
with some other men. Jackson ran across the street into a restaurant and
asked an employee there to use the phone. Jackson made a call but no one
answered. The employee noticed that Jackson had tears in his eyes. As
Jackson was leaving the restaurant, the employee saw the tip of a knife in his
hand. Jackson went back to the park, enraged, and was yelling and chasing
a group of people for about a minute. At this point, Dunn got up from the
tree and began walking towards the parking lot. Jackson followed Dunn and
stabbed him repeatedly in the chest. Dunn was taken to the hospital and
died while in surgery.
Jackson was charged with murder (Pen. Code2 § 187, subd. (a)) with a
use of a deadly and dangerous weapon enhancement (§ 12022, subd. (b)(1))
and a prior strike conviction allegation (§§ 1170.12, subds. (a)–(d), 667,
subds. (b)–(i)). His first trial resulted in a mistrial and he was retried. Prior
to jury deliberations in the second trial, the court instructed the jurors that
Jackson had a constitutional right not to testify and they should not consider
for any reason the fact he did not testify.
1 A more extensive statement of facts is included in this court’s
unpublished opinion following defendant’s prior appeal. (People v. Jackson
(Aug. 20, 2019, A151120) [nonpub. opn.] (Jackson I).) That opinion is part of
the record and we cite only those facts from it that are relevant to this
appeal.
2All further statutory references are to the Penal Code unless
otherwise specified.
2
The trial court further “instructed the jury on first degree murder,
second degree murder, and voluntary manslaughter based on the heat of
passion and imperfect self-defense. Deliberations started, and the jury
requested clarification on the definition of second degree murder the next
day. It subsequently asked two additional questions on the mental state
required for second degree murder. The jury found Jackson guilty of second
degree murder and found true the allegations as to the use of a deadly
weapon and the prior strike.” (Jackson I, supra, A151120.)
B. 2017 Motion for New Trial and Appeal
Following the verdict, Jackson moved for a new trial based on various
grounds, including the jurors’ discussion of his failure to testify, in violation
of the trial court’s admonition, which he argued constituted prejudicial
misconduct. Jackson submitted the declarations of three jurors in support of
the motion: L.I., D.R., and N.U.3
L.I. and D.R. both stated in their declarations that “[o]n the first day of
deliberations, the jurors were split 7-5 between 2nd degree murder and
manslaughter.” All three jurors stated they discussed in front of the others
that they would have voted for voluntary manslaughter if they had more
evidence regarding what Jackson had in his backpack and whether the
backpack was everything he owned. N.U. and D.R. recalled discussing that it
would have made a difference if they had evidence that Jackson was
homeless. All three jurors also stated that the alternate juror who was later
seated mentioned that she would like to have heard Jackson testify. L.I.
further recalled that some jurors continued this discussion and mentioned
3 As the parties’ briefs both refer to these three jurors by their initials,
we will do the same.
3
“they needed more evidence or testimony from Mr. Jackson that would show
that he was protecting himself, and that his possessions were all he had.”
The trial court denied the motion for new trial and declined to hold an
evidentiary hearing regarding the issue of jury misconduct. With respect to
Jackson’s failure to testify, the court noted that the record was “a little vague,
because there’s reference to him not testifying and there’s reference to the
defense not offering evidence.” The court explained that given the argument
of self-defense, “it makes logical sense that the jury would have a discussion
looking for evidence to support a theory that the defense has proffered.” The
trial court concluded that reversal was not warranted as the record did not
reveal “anything that suggests that the jury didn’t otherwise go on to follow
all of the instructions.” On appeal, this court decided the issue of jury
misconduct as follows: “Here, the parties do not dispute that the jurors’
discussion of defendant’s decision not to testify constitutes jury misconduct,
so the question for our independent review would normally be whether the
People have rebutted the presumption of prejudice arising therefrom.
([People v.] Lavender [(2014)] 60 Cal.4th [679,] 687 [(Lavender)].) However,
as the court observed below, the record is not clear as to the scope of the
alleged misconduct and whether the discussion of defendant’s decision not
[to] testify indicates that the jurors drew adverse inferences therefrom or,
alternatively, reflected their assessment of the state of the evidence as to the
charged crimes and defenses. Further, the record is silent regarding whether
the jury foreman admonished the jurors and the duration of the discussions
regarding defendant’s failure to testify. In these circumstances, further
inquiry was reasonably necessary to resolve factual questions regarding the
extent of the jury misconduct, and it is appropriate for the court on remand to
4
explore the Lavender rebuttal factors to assess the potential prejudice arising
from the misconduct.” (Jackson I, supra, A151120.)
Our opinion concluded: “we conditionally vacate the judgment and
remand to the trial court with directions to conduct an evidentiary hearing on
the subject of juror misconduct, to be held in compliance with Evidence Code
section 1150. If, after the evidentiary hearing, the new trial motion is not
granted, the trial court shall reinstate the judgment.” (Jackson I, supra,
A151120.)
C. Evidentiary Hearing Following Remand
On December 16, 2020, the trial court held an evidentiary hearing at
which L.I., N.U., and D.R. appeared and testified. Prior to the hearing,
Jackson submitted new declarations from these three jurors that elaborated
on their recollection of the discussions during deliberations surrounding his
failure to testify.
1. Jurors’ Declarations
i. L.I.
L.I.’s declaration stated in pertinent part: “The jury discussed Mr.
Jackson not testifying at his trial. The jurors discussed that they needed to
hear Mr. Jackson testify on his own behalf and explain to the jury that he
was protecting himself and his belongings from his attackers during this
incident, and explain what was so important in his backpack that made him
go back to the area. There were jurors who discussed that if Mr. Jackson was
truly innocent of murder charges then he would have testified and explained
what happened. The fact Mr. Jackson did not testify and comments such as
‘justice for the victim’s family’ were used by certain jurors to argue against a
verdict for voluntary manslaughter.”
5
L.I. further stated that the topic of Jackson’s failure to testify came up
more than once. One instance was “sometime soon after the alternate juror
initially came into deliberate, and then then there was a discussion about Mr.
Jackson not testifying. Then the jurors discussed another topic, and then
again returned to the same topic of Mr. Jackson not testifying.” L.I. did not
believe the jury foreperson admonished the jury to stop discussing this topic.
ii. N.U.
N.U., who was the foreperson, stated: “Mr. Jackson’s failure to testify
was one of the factors discussed in the consideration for a lesser verdict of
manslaughter. It was discussed that it would make a difference for this
lesser verdict if Mr. Jackson had testified, including about his character, his
background, his childhood and earlier years, and other personal details that
may have drove him to the edge to commit this crime. I recall Juror #12
being very vocal and say ‘well he must have done it’ as a reason why Mr.
Jackson didn’t testify.”
Consistent with L.I.’s declaration, N.U. stated that the topic of
Jackson’s failure to testify “was brought up more than once, including when
the alternate juror came into deliberate.”
iii. D.R.
Finally, D.R. stated in his declaration: “The jury discussed Mr.
Jackson’s failure to testify at his trial. The first time the topic of Mr. Jackson
not testifying was brought up, it was about why Mr. Jackson did not testify.
The second time this topic came up, the discussion was about if Mr. Jackson
had testified, there would have been more clarity as to where they could
possibly give him a lesser charge, but because Mr. Jackson did not testify, he
must be guilty. Some of the jurors also stated that if Mr. Jackson were
6
innocent he would have testified, and a majority of the jurors expressed
agreement, for instance, by their nodding heads.”
D.R. also stated that the “topic of Mr. Jackson not testifying came up at
least twice, including when the alternate juror came into deliberate” and that
the foreperson did not stop the discussion.
2. Jurors’ Testimony
i. L.I.
At the evidentiary hearing, L.I. testified that the topic of Jackson not
testifying came up approximately four times during deliberations. One of
these times was when the alternate juror was seated. L.I. did not hear the
foreperson ever telling the jury to stop these discussions. He did not recall
how long the discussions went on each time, but recalled that there were
“multiple interjections” by the jurors each time. The “big question” during
these discussions pertained to the contents in Jackson’s backpack and the
reason he went back to the park. With respect to the two declarations L.I.
signed at different times, the trial court confirmed with L.I. that his
recollection was better earlier in time.
During the trial court’s examination of L.I., the court looked back at the
statement made in L.I.’s first declaration that he would have voted for
manslaughter if there was more proof regarding the contents of Jackson’s
backpack. The court then explained how it was interpreting L.I.’s present
testimony, that “[o]verall this was a discussion people were getting in
arguments saying maybe this is manslaughter rather than murder, someone
else said for it to be manslaughter you need provocation, or if you need
manslaughter you need heat of passion, you need these things, he didn’t give
you, didn’t testify, so he didn’t offer those things. Something to that effect?”
L.I. responded, “Yes. And I don’t believe that there was any evidence that
7
was brought of that issue either.” L.I. then confirmed, consistent with what
was in his second declaration, that he heard a juror say that Jackson would
have testified if he was innocent. L.I. recalled that at least on one occasion, it
was brought up that the jurors were not supposed to consider Jackson’s
failure to testify to determine the outcome of the verdict.
ii. N.U.
N.U. testified that the topic of Jackson’s failure to testify came up in
the context of the jury deciding between murder and manslaughter. She
confirmed that she, L.I., D.R., and the alternate juror all brought up why
they were not hearing from him. She also recalled Juror No. 12 commenting
that “since he’s not testifying he must be guilty.” This comment was made
later on during deliberations in response to the alternate juror asking why
Jackson did not testify. N.U. recalled that the other jurors then said, “you
can’t assume that. There may be other factors that are contributing to him
not testifying.” But N.U. confirmed that she did not instruct the jury that
they shouldn’t consider Jackson’s failure to testify because she was also
wondering why he didn’t testify. She added, “We were told that we need to
deal with what we have in front of us. And that’s what we were doing.”
During its examination of N.U., the trial court again highlighted the
difference between “looking for evidence to help you fill in the blanks as you
were answering those different questions” and “creating evidence” of guilt
based on Jackson’s failure to testify. The court asked N.U. whether the
jurors were discussing his failure to testify in the context of the latter
category. N.U. responded, “No, it wasn’t that. We didn’t [] get a picture who
Mr. Jackson was. What was the situation when he went back across the
street, you know, there were holes in the story that we could not honestly
answer. It seems as if the jury were in a rush, there was no compassion,
8
there was no empathy, there was no putting themselves in Mr. Jackson’s
shoes.” N.U. further testified that there were questions regarding what the
victim was doing with Jackson’s belongings, and that the jurors “weren’t able
to hear Mr. Jackson say what he was going through at that point in time” and
that there were holes “because we didn’t hear the whole story from him.”
iii. D.R.
D.R. testified that the first time the topic of Jackson’s failure to testify
was brought up, the jurors “were basically saying that maybe if he would
have testified it maybe would have helped them and changing their verdict.”
The topic came up about two or three times. The second time it came up, the
jurors discussed a lesser charge of manslaughter if Jackson had testified and
provided more information. Juror No. 12 mentioned at this time that
Jackson must be guilty since he didn’t testify, or put differently, that he
would have testified if he was innocent. The alternate juror was present
when the topic was brought up this second time. D.R. confirmed that the
foreperson did not initially stop these discussions, so the topic came up more
than once. D.R. believes that the topic was brought up repeatedly because of
Jurors No. 11 and 12, who were both quite vocal during deliberations.
The trial court did not have any follow up questions for D.R.
iv. Jurors Called by the Prosecution
The prosecution called two other jurors (A.C. and J.B-M.) to testify.
A.C. testified that she did not recall any discussions during deliberations
about wishing Jackson had testified or that he should have testified. J.B-M
similarly testified that she did not recall any discussions during deliberations
regarding wanting to hear Jackson testify.
The trial court did not find A.C. or J.B-M.’s testimony meaningful.
9
D. Denial of Second Motion for New Trial
The trial court denied Jackson’s request for a new trial at the
conclusion of the evidentiary hearing. The court first commented that it was
“deeply troubled by [the new declarations] and the differentiating testimony
of these three witnesses today, as opposed to their declarations at the time of
the new trial motion.” The court stated, “Now, the obvious differences . . . are
statements suggesting that these jurors heard others say specific inculpatory
statements, that Mr. Jackson was guilty based on his alleged failure to
testify. For purposes of this hearing, I don’t find any of those statements
credible.” The court commented that the statements were “clearly not close
in time to proximity to the initial statements that they were originally given”
and based on the similar language in the new declarations, “involves some
suggestibility, maybe something worse.” Defense counsel objected to this
comment and argued that it reflected bias on the court’s part.
The trial court ultimately concluded that the jurors’ discussions “were
aspirational”—wishing for more evidence of Jackson’s mental state—as
opposed to deciding that he was guilty based on his failure to testify. The
court explained that since there was no question that Jackson was the one
who stabbed the victim, “the question is this more subtle issue of when you’ve
got lessors and when the jurors are specifically instructed to consider
evidence of the defendant’s state of mind.” The court held, “I don’t find
there’s a reasonable probability of actual harm. I don’t find there are any
express inferences of guilt, I find that these statements ultimately were more
aspirational than inculpatory.”
Jackson now appeals.
10
DISCUSSION
1. Standard of Review
“The trial court is vested with broad discretion to act upon a motion for
new trial. [Citation.] When the motion is based upon juror misconduct, the
reviewing court should accept the trial court’s factual findings and
credibility determinations if they are supported by substantial evidence, but
must exercise its independent judgment to determine whether any
misconduct was prejudicial.” (People v. Dykes (2009) 46 Cal.4th 731, 809.)
“The power to judge the credibility of witnesses and to resolve conflicts
in the testimony is vested in the trial court, and its findings of fact, express
or implied, must be upheld if supported by substantial evidence.” (In re
Carpenter (1995) 9 Cal.4th 634, 646.) “Moreover, so long as the trier of fact
does not act arbitrarily and has a rational ground for doing so, it may reject
the testimony of a witness even though the witness is uncontradicted.
[Citations.] Consequently, the testimony of a witness which has been
rejected by the trier of fact cannot be credited on appeal unless, in view of
the whole record, it is clear, positive, and of such a nature that it cannot
rationally be disbelieved.” (Beck Development Co. v. Southern Pacific
Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)
2. The Trial Court Did Not Commit Prejudicial Judicial
Misconduct
Jackson first argues that the trial court exhibited bias and partiality
during the evidentiary hearing, and that its ruling therefore should not be
afforded deference on appeal. In support of this argument, he points to the
trial court’s “self-serving questioning” of the jurors, its “unreasonable
rejection of the three jurors’ testimony on the same point,” and its accusations
against defense counsel. We disagree, and further note that in any case,
although credibility determinations are afforded deference on appeal, we
11
review de novo whether any misconduct was prejudicial. (People v. Dykes,
supra, 46 Cal.4th at p. 809.)
With respect to the court’s questioning of the jurors, Evidence Code
section 775 permits the trial court to “call witnesses and interrogate them the
same as if they had been produced by a party to the action, and the parties
may object to the questions asked and the evidence adduced the same as if
such witnesses were called and examined by an adverse party.” It is well
recognized “that it is not merely the right but the duty of a trial judge to see
that the evidence is fully developed before the trier of fact and assure that
ambiguities and conflicts in the evidence are resolved insofar as possible.”
(People v. Carlucci (1979) 23 Cal.3d 249, 255.) The ability of the trial judge to
question witnesses applies not only in cases tried to a jury but also when the
court is sitting as the fact finder. (Ibid.)
Here, the trial court did not act impermissibly by examining the jurors
after counsel completed their direct and cross-examinations of them. In
remanding the matter, this court emphasized that the record was not clear as
to whether the subject discussion “indicates that the jurors drew adverse
inferences therefrom or, alternatively, reflected their assessment of the state
of the evidence as to the charged crimes and defenses.” The trial court
accordingly homed in on this distinction and questioned the jurors regarding
it because it was central to whether the jury drew any adverse inferences of
guilt based on Jackson’s decision not to testify. We find no judicial
misconduct or bias.
Jackson also argues that the trial court showed bias and partiality in
its “unreasonable rejection of the three jurors’ testimony on the same point.”
This argument refers to the trial court’s ruling that it did not find the
inculpatory statements contained in the jurors’ second declarations credible.
12
“[T]he credibility of witnesses is generally a matter for the trier of fact to
resolve.” (Beck Development Co. v. Southern Pacific Transportation Co.,
supra, 44 Cal.App.4th at p. 1204.) “[S]o long as the trier of fact does not act
arbitrarily and has a rational ground for doing so, it may reject the testimony
of a witness even though the witness is uncontradicted.” (Ibid., italics added.)
The jurors’ statements regarding guilt or innocence were
uncontradicted by other witnesses, particularly because the trial court found
that the testimony of A.C. and J.B-M. was not meaningful. The trial court
did, however, find the statements contradicted by the jurors’ own earlier
declarations since they did not mention culpability in connection with the
discussions regarding Jackson’s failure to testify. The trial court also found
the statements not credible based on the passage of time, since they were
made approximately three years after trial concluded. In this light, we
cannot say that the trial court’s decision not to credit statements in the
second round of declarations was arbitrary or irrational.
Relatedly, however, Jackson argues that the trial court’s bias was
revealed by its accusation against defense counsel that the inclusion of the
inculpatory statements contained in the jurors’ second declarations “involves
some suggestibility, maybe something worse. And if someone were to look at
the similar language in the manner of design in which all of these
declarations were drafted, they may opt to think it’s something worse.”
“ ‘A criminal defendant has due process rights under both the state and
federal Constitutions to be tried by an impartial judge.’ ” (People v. Peoples
(2016) 62 Cal.4th 718, 788, quoting People v. Cowan (2010) 50 Cal.4th 401,
455.) Moreover, as the court in Peoples pointed out, canon 3B(4) of the
California Code of Judicial Ethics states that “ ‘A judge shall be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers, and others
13
with whom the judge deals in an official capacity, and shall require similar
conduct of lawyers and of all staff and court personnel under the judge’s
direction and control.’ ” (People v. Peoples, supra, at p. 789.) A trial court
“ ‘commits misconduct if it persistently makes discourteous and disparaging
remarks to defense counsel so as to discredit the defense or create the
impression that it is allying itself with the prosecution.’ ” (People v. Sturm
(2006) 37 Cal.4th 1218, 1233.) While Sturm and Peoples involved remarks
made in the presence of the jury, here the trial court was acting as the finder
of fact, and plainly it is important in that context too for courts to avoid
comments that, at a minimum, could create the appearance of a lack of
impartiality.
The Attorney General describes the trial court’s comment implying
improper or unethical conduct by defense counsel as “at best, unnecessary”
because “the court had ample reasons for finding the later statements not to
be credible without questioning how counsel procured them.” The Attorney
General also suggests that the court was “frustrated,” and while part of that
frustration was directed toward defense counsel, the court was also
frustrated with itself for having failed to make an adequate evidentiary
record on the claim of juror misconduct when it was raised in the initial new
trial motion. Indeed, that was the error on the basis of which this court
previously reversed and remanded.
We agree with the Attorney General that the trial court’s comment
impugning defense counsel was at best unnecessary, and we find nothing in
the record to suggest that the jurors’ subsequent declarations and hearing
testimony were the product of improper or unethical conduct by defense
counsel. Moreover, given the seriousness of the accusation, it is a more
troubling misstep than the kind of discourteousness or impatience that might
14
be born of frustration. When such an accusation is made without an
adequate evidentiary foundation, it can create the appearance of bias. (Cf.
Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1024, disapproved of on
another ground by Curle v. Superior Court (2001) 24 Cal.4th 1057 [trial
court’s “derogatory and apparently unfounded statements concerning
counsel,” along with other factors, warranted that further proceedings take
place before a different judge on remand].) However, to prevail on a due
process claim, a defendant must make a “heightened showing of a probability,
rather than the mere appearance, of actual bias.” (People v. Freeman (2010)
47 Cal.4th 993, 1006; see People v. Ng (2022) 13 Cal.5th 448, 571 [appellate
court’s decision in Ng v. Superior Court (1997) 52 Cal.App.4th 1010 did not
establish actual bias by the trial judge].) Jackson has not made the requisite
showing. As discussed above, the trial court expressed rational, nonarbitrary
reasons for declining to credit the jurors’ subsequent declarations and
testimony, and in this context we cannot conclude that the court’s suspicion
about the role of defense counsel was the cause, rather than the effect, of its
credibility determination. “Mere expressions of opinion by a trial judge based
on actual observation of the witnesses and evidence in the courtroom do not
demonstrate a bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111,
overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)4
4 In Guerra, the trial judge stated, among other things, that defense counsel’s
prior writ petition was “ ‘full of specious statements,’ ” and after counsel
disagreed with that characterization, responded, “ ‘you are so intellectually
dishonest that if you turned around fast, you’d screw yourself into the
ground.’ ” (People v. Guerra, supra, 37 Cal.4th 1067, 1110.) After a recess,
which followed some additional hostile comments, the trial judge told counsel
that “he had considered whether this incident would cause him to be biased
against defendant and ultimately decided he could give defendant a fair
trial.” (Ibid.) While such a corrective statement is absent from the record
15
Thus, while we disapprove of the trial court’s comment, we reject Jackson’s
claim that it establishes a probability of actual bias.
Lastly, we also find no merit to the argument in Jackson’s
supplemental opening brief that the trial court failed on remand to follow our
order to consider additional evidence of misconduct. The court considered the
new juror declarations, heard the testimony of the jurors at the evidentiary
hearing, and ultimately did not find that the misconduct resulted in
prejudice. That the court did not find certain testimony or statements
credible does not mean that it refused to consider them.
3. The Trial Court Did Not Err in Denying the Motion for New Trial
This court issued a limited remand in Jackson’s prior appeal because
the record was “not clear as to the scope of the alleged misconduct and
whether the discussion of defendant’s decision not to testify indicates that the
jurors drew adverse inferences therefrom or, alternatively, reflected their
assessment of the state of the evidence as to the charged crimes and
defenses.” (Jackson I, supra, A151120.) We also noted that the record was
silent as to the duration of the discussions regarding Jackson’s failure to
testify and whether the foreperson admonished the jurors when the topic
came up. (Ibid.) We therefore instructed the trial court to “explore the
Lavender rebuttal factors to assess the potential prejudice arising from the
misconduct.” (Ibid.) The trial court did so and we find no error in its ruling.
i. Lavender Rebuttal Factors
In Lavender, supra, 60 Cal.4th at p. 687, our high court explained that
misconduct occurred when jurors during deliberations mentioned the
defendants’ decision not to testify. “Such misconduct, in turn, gave rise to a
here, Jackson has not shown that the trial court’s hostility to defense counsel
rendered it unable to adjudicate his case impartially.
16
presumption of prejudice, which 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 resulting from the misconduct.” (Ibid.)
In People v. Solorio (2017) 17 Cal.App.5th 398 (Solorio), the court
identified three factors that were considered in Lavender to rebut the
presumption of prejudice. “The first rebuttal factor considers whether jurors
drew adverse inferences of guilt from defendant’s decision not to testify.
[Citation.] Comments of mere ‘wonderment and curiosity’ are normally
innocuous.” (Id. at p. 409.) Adverse inferences are not drawn when jurors
“merely expressed regret that defendant had not testified, because such
testimony might have assisted the jurors in understanding him better.”
(People v. Leonard (2007) 40 Cal.4th 1370, 1425.) Such statements are
distinguishable from those indicating that jurors punished a defendant for
not testifying or drew negative inferences from it. (Ibid.)
“The second rebuttal factor considers the length of discussion about the
topic.” (Solorio, supra, 17 Cal.App.5th at p. 410.) “ ‘Transitory comments’
about the topic are usually innocuous, ‘particularly when a comment stands
alone without any further discussion.’ [Citations.] The fact that only a few
jurors recall any comment on the topic may tend to ‘indicate[] that the
discussion was not of any length or significance.’ ” (Ibid.)
“The third rebuttal factor—the crux of Lavender—considers whether
jurors were reminded not to consider the defendant’s decision not to testify.
[Citation.] If the foreperson promptly reminded jurors when the improper
statement was made, that would ‘(in the absence of objective evidence to the
contrary) . . . constitute strong evidence to rebut the presumption of
prejudice.’ ” (Solorio, supra, 17 Cal.App.5th at p. 410.) This third factor was
17
the central issue in Lavender, supra, 60 Cal.4th 679 as our high court there
found the presumption of prejudice could be rebutted even where the jurors’
discussion of a defendant’s failure to testify went beyond mere curiosity, if
there is also evidence that the foreperson admonished the jurors not to
consider it. (Id. at p. 687.)
ii. Analysis
Here, the parties do not dispute that the jurors discussed Jackson’s
failure to testify at various points during deliberations, including when the
alternate juror was seated. And N.U., the foreperson, testified that she did
not admonish the jurors not to consider his failure to testify, though on at
least one occasion, other jurors brought up that they were not supposed to
consider the topic in deciding the verdict. The critical issue then, is the first
Lavender rebuttal factor—whether the jurors drew an adverse inference of
guilt from Jackson’s decision not to testify. Based on our independent review
of the record, we do not find that the misconduct resulted in a reasonable
probability of harm to Jackson.
As the trial court noted, this was not a “who done it” case. There was
no dispute that Jackson was guilty of stabbing the victim. On the first day of
deliberations, the jurors were split only as to whether he should be convicted
of second degree murder or voluntary manslaughter.5 As the trial court
5 By itself, the fact that there was no dispute that Jackson stabbed the
victim does not mean that there was no prejudice. In Solorio, for example,
the issue was whether the defendant acted in self-defense, and the court
reversed the trial court’s finding of no prejudice where the trial court credited
a juror’s testimony that a group of six or seven jurors repeatedly discussed
the defendant’s decision not to testify. (Solorio, supra, 17 Cal.App.5th at
pp. 404–405.) The Court of Appeal concluded, based on the juror’s
declaration, that jurors drew the inference that the defendant was guilty of
murder from his failure to testify, where the juror stated “Solario did not
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pointed out, defense counsel had raised provocation or heat of passion as
issues during the trial to support manslaughter instead of murder. Though
the ultimate burden of proof remained with the prosecution to prove its case,
some jurors apparently believed that they lacked evidence from the defense
that would be necessary to conclude that Jackson was sufficiently provoked,
or that he acted in the heat of passion, to warrant convicting him of
something less than murder. All three jurors testified at the evidentiary
hearing that there were unanswered questions regarding what he had in his
backpack, whether the backpack was everything he owned, and what his
state of mind was when he went back to the park, presumably to retrieve it.
It was in this context that the jurors discussed the absence of testimony from
Jackson, suggesting that they were seeking evidence of mitigation through
such testimony, not inferring that he was guilty based on the lack thereof.
People v. Brooks (2017) 3 Cal.5th 1 is analogous. There, the defendant
was charged with murder. At trial, the defense did not dispute that the
defendant killed the victim, but “presented evidence to support the theory
that defendant was guilty of heat of passion voluntary manslaughter, not
murder.” (Id. at p. 23.) The defendant did not testify. On the second day of
deliberations, the jury was deadlocked. (Id. at p. 92.) The trial court
instructed the jurors to continue deliberating and to identify what would
assist them. The jury responded with a request to hear from the defendant,
which the trial court denied. (Id. at p. 93.)
On appeal, the court inferred from this request that the jurors
discussed the defendant’s failure to testify during deliberations, which was
testify because ‘he knew he “did it.” ’ ” (Id. at p. 409.) Here, by contrast, the
trial court did not credit testimony indicating that jurors drew an adverse
inference.
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misconduct that gave rise to a presumption of prejudice. (People v. Brooks,
supra, 3 Cal.5th at p. 93.) However, the court did not find that the jury drew
any adverse inferences of guilt from the defendant’s failure to testify. (Id. at
pp. 93–94.) The court held that “an examination of the record as a whole
strongly suggests that the jury’s request to hear from defendant was a
request for evidence in mitigation that would help the defense case . . . it
cannot be inferred from that request that the jurors had considered
defendant’s failure to testify as evidence in aggravation or for the purpose of
allaying any lingering doubt regarding his guilt.” (Id. at p. 94.)
Likewise, here, there was no question, and Jackson himself did not
dispute, that he killed the victim. And unlike in Brooks, we know from the
jurors’ declarations and testimony that they were looking for mitigating
evidence by way of testimony from Jackson. The jurors’ prior declarations
made clear that on the first day of deliberations, all of the jurors determined
that Jackson was guilty of the act but were split between murder and
manslaughter. All three jurors stated they would have voted for
manslaughter if they had more information about the contents of his
backpack and whether it was all he owned, because it would have supported
the defense’s argument that he was provoked. In so reasoning, the jurors did
not infer that Jackson was guilty because he did not testify, but rather
expressed their view that there was insufficient mitigating evidence to
support a lesser conviction. The jurors’ testimony at the evidentiary hearing
also supported the trial court’s conclusion that Jackson’s testimony (or lack
thereof) was discussed to help fill in missing blanks to questions the jurors
had regarding the contents of his backpack and his state of mind as potential
mitigating evidence. Accepting the trial court’s credibility determinations
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regarding what occurred during the jury’s deliberations, we cannot conclude
that the misconduct resulted in a reasonable probability of harm.
4. Defendant’s Ineffective Assistance of Counsel Claims Lack
Merit
In his supplemental opening brief, Jackson asserts that he was denied
the effective assistance of counsel. He argues that his counsel (1) failed to
timely and adequately research the law and investigate the facts fully in
advance of the first motion for new trial; and (2) failed to object or request
recusal of the trial judge despite the judge’s conduct in questioning the jurors
and impugning defense counsel.
A defendant who contends he received ineffective assistance has the
burden of proving that: (1) trial counsel’s performance fell below an objective
standard of reasonableness when measured by prevailing norms; and
(2) there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. (People v. Ledesma (1987)
43 Cal.3d 171, 215–218.) An appellant who alleges ineffective assistance on
direct appeal bears an especially heavy burden of proof: “ ‘[if] the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,’ the
claim on appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926,
936.)
First, any claim of ineffective assistance with respect to the initial
motion for new trial is waived. “Waiver precludes successive appeals based
on issues ripe for consideration in the prior appeal and not brought in that
proceeding.” (People v. Jordan (2018) 21 Cal.App.5th 1136, 1143.) Indeed,
“California law prohibits a defendant from raising contentions in a piecemeal
fashion by successive proceedings. When a defendant had an opportunity to
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challenge his or her sentence in an earlier appeal and failed to do so, he or
she may not belatedly raise the same issue in a later appeal or a collateral
attack on the judgment, absent good cause.” (Ibid.) Here, the claim of
ineffective assistance was ripe for consideration in Jackson’s prior appeal but
was not raised. He cannot raise it now following this court’s limited remand.
Second, any claim of ineffective assistance with respect to trial
counsel’s failure to object or request recusal at the evidentiary hearing lacks
merit. Jackson argues that trial counsel should have objected when the trial
court took on an “adversarial role” through its extensive leading questions of
the jurors and its summary of the record based on its own interpretation and
analysis. As discussed above, however, the court’s questioning of witnesses
was not improper. Given the passage of time between the jurors’ first and
second declarations, as well as the critical distinction to be made between
statements that reflect an adverse inference of guilt and those that do not, it
was not misconduct for the court to seek clarification of this point with the
jurors during its examination.6
We likewise cannot conclude that trial counsel rendered ineffective
assistance by failing to request the trial judge’s recusal after he accused her
6 Jackson cites In re Martin (1977) 71 Cal.App.3d 472 in support of his
argument, but we find that case readily distinguishable. There, the trial
judge presided over a rehearing on contempt charges against petitioner and
stated at the outset that he felt deceived by the petitioner and believed that
his “original impression was correct as things now stand.” (Id. at p. 481.)
The court found that the judge should have recused himself from trying the
contempt charge at the rehearing because his comments indicated bias and a
presumption of guilt against petitioner. Moreover, because the contempt
charge concerned representations that petitioner had made directly to the
judge, he had “the very kind of subjective involvement which required a
recusal” and effectively became a witness against petitioner. (Id. at p. 482.)
None of those features are present here.
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of unethical conduct. Although “[b]ias or prejudice toward a lawyer in the
proceeding may be grounds for disqualification” (Code Civ. Proc., § 170.1,
subd. (a)(6)(B)), it is not grounds for disqualification that, subject to
exceptions not relevant here, the judge has “expressed a view on a legal or
factual issue presented in the proceeding” (id. § 170.2, subd. (b)). While we
have disapproved of the trial court’s accusation, it was connected to the
credibility determination it made about the jurors’ new declarations and
testimony. As in Guerra, where the trial judge concluded that his
accusations of dishonesty against defense counsel did not render him biased
against the defendant or compromise the defendant’s right to a fair trial
(People v. Guerra, supra, 37 Cal.4th at p. 1110), here we cannot say that the
trial court would have granted a motion for disqualification, or that it would
have been required to do so. (See People v. Smithey (1999) 20 Cal.4th 936,
1012 [rejecting ineffective assistance claim based on failure to seek
disqualification of trial judge and move for new trial “because the appellate
record does not establish that counsel performed deficiently by failing to
make such motions, or that such motions likely would have been granted”].)
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
WHITMAN, J.*
*Judge of the Superior Court of California, County of Alameda, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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