Filed 6/18/18

IN THE SUPREME COURT OF CALIFORNIA

In re ROBERT WESLEY COWAN )

) S158073

on Habeas Corpus. )

____________________________________)

In 1996, a Kern County jury convicted petitioner Robert Wesley Cowan of 

the first degree murders of Clifford and Alma Merck (Pen. Code, §§ 187, 

subd. (a), 189; all undesignated statutory references are to this code) and found 

true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) 

and murder during the commission of robbery and burglary (id., subd. (a)(17)(A), 

(G)). As to each murder, the jury found that a principal had been armed with a 

firearm (§ 12022, subd. (a)(1)), and the trial court found that Cowan had suffered a 

prior serious felony conviction (§ 667, subd. (a)). The jury was unable to reach a 

verdict on a murder count involving a third victim, Jewell Russell, and the trial 

court declared a mistrial on that count. At the penalty phase, the jury returned a 

verdict of death for Alma’s murder and a verdict of life imprisonment without the 

possibility of parole for Clifford’s murder. The trial court imposed the death 

sentence with a one-year arming enhancement for Alma’s murder, a consecutive 

sentence of life imprisonment without possibility of parole plus a one-year arming 

enhancement for Clifford’s murder, and a five-year enhancement for the prior 

serious felony conviction. On automatic appeal, this court affirmed the judgment 

in its entirety. (People v. Cowan (2010) 50 Cal.4th 401, 415 (Cowan).)
2

While his appeal was pending, Cowan filed a petition for writ of habeas 

corpus petition in this court. In Claim 2 of the petition, he alleged that Juror 

No. 045882 committed misconduct by intentionally concealing that he previously 

had been convicted of public fighting (§ 415, subd. (1)) and was then on 

probation. On June 22, 2011, this court issued an order instructing the Secretary

of the Department of Corrections and Rehabilitation (CDCR) to show cause why 

we should not grant Cowan relief based on juror misconduct. After the Attorney 

General, representing CDCR, filed a return and Cowan filed a traverse, we 

appointed a referee and ordered him to take evidence and make findings of fact on 

the following questions:

1. Is Juror No. 045882 the person who was cited for public fighting, a 

misdemeanor violation of section 415, subdivision (1), on January 14, 1995; was 

charged with a violation of that section on January 18, 1995; pled guilty to that 

offense on February 6, 1995; and received a sentence of three years’ probation and 

a fine of $225, as reflected in the court file in Bakersfield Municipal Court 

No. 506741B? 

2. If so, what were Juror No. 045882’s reasons for failing to disclose these 

facts on his juror questionnaire and during voir dire at Cowan’s trial? 

3. Was the nondisclosure intentional and deliberate? 

4. Considering Juror No. 045882’s reasons for failing to disclose these 

facts, was his nondisclosure of the above facts indicative of juror bias? 

5. Was Juror No. 045882 actually biased against Cowan?

The referee conducted an evidentiary hearing, considered pre- and postevidentiary hearing briefs submitted by the parties, and heard oral argument on the 

questions submitted. The referee filed a three-page report to which Cowan filed 
3

exceptions. We agree with the referee’s conclusion that Juror No. 045882 was not 

actually biased against Cowan and that no prejudicial misconduct occurred.

I.

The evidence at the reference hearing comprised three exhibits (A-1

[docket in the public fighting misdemeanor case], B-1 [juror questionnaire], C-1

[transcript of jury selection voir dire]) and the testimony of Juror No. 045882 (the 

juror).

A. Court Documents in Bakersfield Municipal Court Case No. 

506741B 

Court documents established that on January 14, 1995, Juror No. 045882 

and another person engaged in a fistfight in the Valley Plaza Mall in Bakersfield. 

A Bakersfield police officer questioned the juror, issued him a citation, and 

released him. On February 6, 1995, the juror pleaded guilty to fighting in a public 

place, a misdemeanor violation of section 415, subdivision (1). The juror was 

fined $225 and placed on informal probation for three years. The juror’s opponent 

in the fistfight was arrested, transferred to the Bakersfield police station, and 

booked on charges of possession of an illegal knife and fighting in public.

B. Jury Questionnaire and Voir Dire

On April 17, 1996, during the jury selection process in Cowan’s capital 

trial, Juror No. 045882 completed a questionnaire. He was 19 years old. In the 

“Law Enforcement and Judicial Contacts” section, Question 34 asked about prior 

arrests, including type of charge, date, and location of arrest, and outcome. Juror 

No. 045882 wrote, “assault and battery. 1991 From my hous[e] charges dropped.” 

In response to Question 35, which asked whether any immediate family member 

had ever been arrested, Juror No. 045882 wrote, “brother.” 
4

The juror left blank the space next to Question 39, which asked the juror to 

explain how he felt the law enforcement and judicial systems had handled any 

arrests involving himself or family members. In response to Question 50, which 

asked whether the juror had ever known anyone who was falsely accused of a 

crime, Juror No. 045882 answered “yes” and explained, “my brother was partly 

wrong but still had to serve 6 month[s]. For anothers [sic] fault.” Question 53

asked whether the juror had ever been in a courtroom for any reason other than 

jury service. Juror No. 045882 answered “yes” and explained, “tickets.” In 

response to Question 54, which asked whether the juror had ever had any contact 

with law enforcement or the criminal justice system other than that previously 

mentioned, Juror No. 045882 answered “no.” 

In the “Death Penalty” section, question 56 asked the juror to express his 

feelings about the death penalty. Juror No. 045882 answered, “If guilty, why not.” 

In response to question 57, which asked the juror whether he had ever held a 

different view of the death penalty, he answered, “no.” In response to question 58, 

which asked whether the death penalty was imposed too often or too seldom, the 

juror answered, “Too seldom I haven’t heard of too many.” Question 59 asked if 

the death penalty is wrong for any reason, including religious, moral, or ethical 

beliefs. The juror checked, “no.”

During voir dire, when asked whether he or a close relative had ever been 

the victim of a crime, the juror responded, “My brother was just in here not too 

long [ago] for assault and battery.” The juror also explained, “And me, it was 

about three years back — well, I didn’t come to court, my brother went through. I 

didn’t get convicted or nothing; dropped charges against me.” The juror believed 

that his brother’s sentence was too severe because the purported victim in his 

brother’s case pulled out a knife and suffered a self-inflicted stab wound to the 
5

back of his own hand as he defended himself against the juror’s brother. The juror 

said he would not hold the outcome of his brother’s case against the prosecutor in 

Cowan’s case. When asked, “Do you feel strongly that anyone who commits 

murder should get the death penalty,” the juror answered, “[n]ot really” and it 

would “depend on the circumstances.” The juror did not mention, nor was he 

questioned about, his 1995 misdemeanor conviction and probation sentence.

C. Testimony of Juror No. 045882 at Evidentiary Hearing

In response to the referee’s questioning, the juror testified that he did not 

recall “an incident at the Valley Plaza Mall in about 1995 where [he] had contact 

with a security guard and then a Bakersfield police officer[.]” Nor did the juror 

recall “any incident where [he was] given a piece of paper to appear at court for a 

misdemeanor disturbing-the-peace-type case back around 1995[.]” 

In response to questioning by counsel, the juror testified that he recalled 

being a juror in Cowan’s trial but did not recall completing the juror questionnaire, 

even though he recognized his handwriting and signature on the questionnaire. 

After reviewing the court file and police report regarding his conviction for public 

fighting at the Valley Plaza Mall in 1995, the juror recalled that he fought with the 

ex-boyfriend of the juror’s then-girlfriend; that the fight was broken up by mall 

security; that the person he fought was handcuffed and arrested; that he was not 

allowed to return to the mall; that he was given a citation and later went to court; 

and that he was placed on probation but did not recall for how long. The juror 

explained that, to him, being arrested means that a person is “[c]uffed, detained, 

taken off in a patrol unit,” “[b]ooked,” “[t]aken downtown,” “[f]ingerprinted,” and 

has “[m]ugshots” taken, none of which he experienced after the mall fight.

The juror testified that he did not believe he had been placed under arrest

for the public fighting incident. He did not recall being advised of his rights under 
6

Miranda v. Arizona (1966) 384 U.S. 436. He did not have to report to anyone 

while on probation for public fighting, and he only had to “ ‘pay this fine and be 

on your way.’ ” Upon additional questioning by the government, the juror 

recalled that after he entered a plea, “I believe somebody contacted me, hey, okay, 

you have any questions? You know what I mean? Stay out of trouble. Kind of 

one of those. Pay your fine. Stay out of trouble. [¶] It wasn’t a big deal, you 

know.” The juror testified that he had “forgot[ten] all about [the mall fight]” until 

he looked at the police report at the hearing and that it “ha[d]n’t even crossed [his] 

mind.” 

The juror testified that “[t]here was no reason” for failing to mention his 

prior “arrest” for the mall fight in response to Question 34 and that it “didn’t cross 

my mind.” He testified, “I mean, I put a lot of stuff behind me. You know? I 

don’t dwell on things.” The juror “vaguely” recalled going to court after the 

incident and believed he was in court when he signed the change of plea form.

The juror explained that his response to Question 34 referred to a 1991 

assault and battery involving himself, his brother, and the boyfriend of his 

brother’s ex-girlfriend. Police arrested the juror and his brother. The juror 

recalled that he stayed overnight in “juvenile hall” but could not initially recall 

whether he was “booked” into a facility. The charges were dropped. At the time 

the juror completed his jury questionnaire, this was the only incident in which he 

had been “hauled off, taken down to the police station, [and] booked into juvenile 

hall.” The juror explained that it “stuck out in [his] mind” because “[i]t’s 

something that happened to me in my childhood of life where I felt I shouldn’t 

have been taken in for, you know. . . . I didn’t do nothing.” 

With respect to Question 35, the juror acknowledged that he answered 

“yes” and added only “brother” in the space provided, omitting the requested 
7

details (e.g., date of the arrest, charges, etc.). The juror testified that the incident 

for which his brother was arrested was the same “conflict” he mentioned in his 

answer to Question 34. He did not provide details about his brother’s arrest in 

response to Question 35 because he “[d]idn’t remember the date.” The juror also 

explained that “it was [identified] up in [Question 34], assault and battery, so I 

didn’t carry it down, I’m sure.” When asked why he included the outcome of his 

arrest in 1991 in his response to Question 34 but not the outcome for his brother in 

Question 35, the juror testified, “I just didn’t complete the answer in [Question] 35 

it looks like.” 

The juror testified that he had no reason for failing to disclose in his answer 

to Question 39 the public fighting incident that led to his misdemeanor conviction. 

Regarding Question 50, the juror clarified that his response referred to another 

incident involving his brother in which someone attempted to stab the brother and 

instead accidentally stabbed himself. The juror’s brother was convicted of 

unspecified offenses and served six months in custody. He believed that his 

brother had been wrongly convicted. 

The juror testified he had no reason for failing to mention his public 

fighting conviction in his answer to Question 53 and that his reference to “tickets” 

meant he previously had been to court for traffic tickets. Regarding his failure to 

mention the public fighting conviction in his answer to Question 54, he testified 

that the omission was not intentional and that “I don’t have nothing to hide. I 

mean, I don’t — if it’s there, it’s there. [¶] . . . I mean it asks us about family. I 

mean, you’re asking me questions. It’s asking me about me, my family, you 

know. I mean, I don’t know how to answer. [¶] I just know I did not do it on 

purpose. I’ll tell you that much. I mean, if I would have remembered, I would 

have put it in.” 
8

The juror testified that he understood what Question 54 asked, i.e., whether 

he, his family, or his close friends had had contact with law enforcement or the 

criminal justice system other than what was mentioned elsewhere on the 

questionnaire. He explained that the lack of a response in the answer space was 

“probably” because he “just didn’t want to answer it.” Counsel asked why, and 

the juror testified, “I mean, my family is my family. It has nothing to do with me. 

I mean, my arrest was thrown out, you know. Other than that, I wasn’t charged 

with it. So I don’t really count — count it, you know, my arrest being hauled off 

to juvenile hall, I was a minor.” The juror explained the arrest he was referring to 

was the 1991 arrest. He acknowledged that he mentioned the 1991 arrest in 

answer to Question 34; that even if he felt the 1995 incident did not involve an 

arrest, he should have mentioned it in response to Question 34; and that his 

response to Question 54 was “incomplete” because he did not refer to the 1995 

public fighting incident. He said he had no reason for omitting his citation, 

misdemeanor conviction, and grant of probation for the 1995 incident from his 

answer to Question 54.

When asked whether he had been concerned that his misdemeanor 

conviction for public fighting would have given the trial court or the attorneys a 

reason to excuse him from jury service, the juror testified, “No. I mean, to be 

honest, the Courts could have pulled that up and already told me, no, you can’t be 

a juror because of your misdemeanor or your felony; right? They could have 

looked that up. Said, hey, you’re excused because of that—.”

The juror testified that he did not recall how he felt when he received his 

first misdemeanor conviction for the mall fight but that he had “probably” been 

“upset” because he was convicted for “standing up for something that I believed 

in. You know. And then here I am.” The juror did not believe he was wrongly 
9

convicted because “I could have walked away.” He did not recall whether he was 

on probation at the time of his jury service or whether his probation terminated 

early. 

The juror had never been involved in jury selection prior to Cowan’s trial. 

He agreed that the process was “a little intimidating for a 19-year-old” but also 

“interesting.” His impression was that the 20-page questionnaire “[went] on and 

on and on,” whereas he is “short in anything [he does]” like “answering things.” 

He scanned the questionnaire, tried to “quickly” “mark the right answer yes or 

no,” and did not provide “a whole lot of detail” in his answers. 

The juror testified that when he completed the questionnaire at Cowan’s 

1996 trial, he did not have any bias toward either Cowan or the prosecution, and 

that he “came with an open mind.” He did not try to hide anything in filling out 

the questionnaire and did not try to answer questions in a manner that he believed 

would increase his chances of being selected as a juror. He testified that he was 

fair and impartial to both parties at Cowan’s trial. Neither the public fighting 

incident nor his probation status entered into his mind when he completed the 

questionnaire. 

The juror thought it was “a great opportunity to serve on a jury, to do

something like that, you know.” In his subsequent contacts with the criminal 

justice system, he did not mention or ask his attorney to mention that he had been 

a juror in the present case and had voted for conviction. The juror admitted he 

suffered a 2003 conviction of felony assault with a firearm with a firearm use 

enhancement. 

II.

After hearing the evidence, the referee issued a report stating his findings in 

response to the five questions we asked him to address. Cowan takes exception to 
10

a number of the referee’s findings; the Attorney General asks this court to adopt 

all of the referee’s findings. Because a petition for a writ of habeas corpus is a 

collateral attack on a presumptively final criminal judgment, “the petitioner bears 

a heavy burden initially to plead sufficient grounds for relief, and then later to 

prove them.” (People v. Duvall (1995) 9 Cal.4th 464, 474.) To obtain relief, the 

petitioner must prove by a preponderance of the evidence the facts that establish 

entitlement to relief. (In re Price (2011) 51 Cal.4th 547, 559.)

When a claim of juror misconduct “arise[s] in a petition for habeas corpus 

before this court and become[s] the subject of an evidentiary hearing before our 

referee, our review of the referee’s report follows well-settled principles. The 

referee’s factual findings are not binding on us, and we can depart from them upon 

independent examination of the record even when the evidence is conflicting. 

[Citations.] However, such findings are entitled to great weight where supported 

by substantial evidence. [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 296 

(Hamilton); accord, In re Welch (2015) 61 Cal.4th 489, 501.) “On the other hand, 

any conclusions of law or resolution of mixed questions of fact and law that the 

referee provides are subject to our independent review.” (Hamilton, at p. 297; 

accord, In re Thomas (2006) 37 Cal.4th 1249, 1257.)

Question 1. The referee found that the juror was the person who pleaded

guilty to misdemeanor public fighting (§ 415, subd. (1)) on February 6, 1995, and 

was placed on probation for three years and fined $225. This finding is 

undisputed.

Question 2. The referee found that the juror failed to disclose his public 

fighting conviction on his questionnaire and during voir dire at Cowan’s trial

because he “simply overlooked the misdemeanor conviction when he filled out the 

questionnaire.” The juror did not consider the incident significant chiefly because 
11

he was not arrested, handcuffed, or booked but instead was cited and released by 

law enforcement. The juror had forgotten all about the incident during jury 

selection. He was not on “formal probation,” did not have to check in with a 

probation officer, and only had to pay a fine. The public fighting incident did not 

stick out in the juror’s mind in comparison to the 1991 incident in which he 

believed that his brother had been wrongly arrested and that he (the juror) had 

unjustifiably been booked by law enforcement and detained overnight at juvenile 

hall. The juror answered the questions quickly and without providing much detail. 

Cowan argues that the record does not contain substantial evidence 

supporting this finding because the juror was not credible when he claimed he 

forgot about the misdemeanor public fighting conviction and because the 

explanations he offered for not disclosing the conviction on the questionnaire and 

during voir dire were implausible or contradicted by other testimony. Cowan

asserts, for example, that the juror’s testimony that he forgot about the 1995 public 

fighting incident and the resulting misdemeanor conviction was not believable 

because he recalled his 1991 arrest even though it did not result in any charges and 

occurred more than three years earlier. Cowan also points out that the juror’s 

claim that he had forgotten about the 1995 incident is inconsistent with his 

testimony on cross-examination agreeing with the prosecutor that “you didn’t 

indicate this incident at the mall [on question 34, which asked if he had ever been 

arrested] because, in your mind, your 19-year-old-mind at the time, you didn’t feel 

that it was an arrest.” 

But a key purpose of a reference hearing is to resolve credibility issues 

arising from the testimony and evidence. (People v. Boyette (2013) 56 Cal.4th

866, 876.) “[T]he referee is entitled to discredit portions of a witness’s testimony 

while finding the witness credible in other particulars. [Citation.] Thus, the fact 
12

that the referee expressly or impliedly disbelieved a witness in some respects, or 

that portions of a witness’s testimony seem unlikely on their face, does not mean 

that any finding based solely or primarily on the same witness’s testimony on 

other matters is without substantial support.” (Hamilton, supra, 20 Cal.4th at 

p. 297, fn. 18.) “Deference to the referee is particularly appropriate on issues 

requiring resolution of testimonial conflicts and assessment of witnesses’

credibility, because the referee has the opportunity to observe the witnesses’

demeanor and manner of testifying.” (Id. at p. 296.)

Here the referee found that the juror’s testimony about failing to remember 

the 1995 public fighting conviction when completing the questionnaire was 

credible, even though the juror recalled and disclosed his arrest for the assault and 

battery incident that had occurred a few years earlier. The referee reasoned that 

the 1995 incident “did not stick out in the juror’s mind,” unlike the 1991 incident 

in which he believed that he was unjustly arrested, booked, and detained overnight 

in juvenile hall and that his brother had been wrongly arrested. On redirect by 

Cowan’s counsel, the juror denied that he failed to disclose his misdemeanor 

conviction in his answer to Question 34 “since [he] wasn’t arrested.” Despite the 

apparent discrepancies in the juror’s testimony, the referee — who observed the 

juror’s demeanor while testifying — was entitled to conclude the juror testified 

truthfully on these points.

Cowan contends that the referee, in finding that the juror was not arrested 

or placed in handcuffs for the 1995 public fighting incident, “wholly ignored 

Office [sic] Wimbish’s report that the juror was subjected to a citizen’s arrest and 

placed in handcuffs by security officers.” Officer Wimbish was apparently present 

at the evidentiary hearing but did not testify. The referee was entitled to credit the 

juror’s sworn testimony at the hearing on this point instead of the unsworn hearsay 
13

statements in the officer’s report. Moreover, at the evidentiary hearing, the 

prosecutor explained that the police report indicates that the juror was “cited and 

released” after the fighting incident. Counsel for petitioner agreed that “Officer 

Wimbish did give a citation to [the juror]” but insisted that “[the juror] was 

subjected to a citizen’s arrest prior to being given a citation.” The police report 

confirms that after breaking up the fight, the mall security officer placed the two 

combatants in handcuffs and took them to an area off the main plaza. It is unclear, 

however, whether the juror was still in handcuffs when Officer Wimbish arrived. 

We conclude that substantial evidence supports the referee’s finding that 

the juror “simply overlooked” the 1995 misdemeanor public fighting conviction 

when he filled out the questionnaire. The juror consistently testified that the 1995 

public fighting incident did not cross his mind and that his nondisclosure was not 

“on purpose.” He described the incident as not “a big deal” and “pretty minor.” 

The juror also testified that he had “nothing to hide” and would have included the 

1995 misdemeanor conviction if he had remembered it. Further, the juror testified 

that when he completed the questionnaire, he did not “dwell on things,” did not 

take long to answer the questions, and did not provide much detail in his answers. 

As the referee found, the juror failed to respond or provide the requested 

explanations to many of the questions asked, including those that had nothing to 

do with his experiences in the criminal justice system. Although there were some 

inconsistencies in the juror’s testimony, “ ‘we assume the referee considered those 

discrepancies, along with [the juror’s] demeanor, while testifying, before 

concluding he was a credible witness.’ ” (Boyette, supra, 56 Cal.4th at p. 877.) 

We defer to the referee’s resolution of the conflicts in the testimony and to his 

conclusion that the juror failed to remember his 1995 misdemeanor conviction 

when he completed his juror questionnaire.
14

Question 3. The referee found that the juror’s failure to disclose his 

misdemeanor conviction was not intentional or deliberate. For the reasons just 

stated, we defer to this finding.

Question 4. The referee found that the juror’s failure to disclose his 

misdemeanor conviction was not indicative of bias. We conclude that the 

referee’s finding is supported by substantial evidence, namely, the juror’s 

testimony that he felt no bias towards either Cowan or the prosecution and came to 

court with an “open mind.” In addition, the juror’s disclosure of his 1991 arrest, 

together with his testimony that he did not remember his 1995 misdemeanor 

conviction and did not omit it “on purpose,” suggests he completed his 

questionnaire in good faith. This, in turn, supports the referee’s finding that the 

juror’s omission was not indicative of bias. (See Hamilton, supra, 20 Ca1.4th at 

p. 300 [juror’s good faith in responding to voir dire questions is the “most 

significant indicator that there was no bias”].)

Question 5. The referee found that the juror was not actually biased against 

Cowan. Cowan argues this finding is not supported by substantial evidence. 

After hearing the juror testify and observing his demeanor at the hearing, 

the referee credited his testimony that he had no reason for not referring to his 

1995 misdemeanor public fighting conviction and probation status when he 

completed the questionnaire; he had nothing to hide and likely “overlooked” the 

conviction; he did not intentionally fail to disclose the conviction; he harbored no 

bias towards Cowan or the prosecutor when he completed the questionnaire and 

came to jury service with an open mind; he denied trying to complete the 

questionnaire so he would be selected as a juror; and he was a fair and impartial 

juror. Cowan contends that the juror was biased because he could have believed 

that voting in favor of the prosecution could “lead to future leniency in the 
15

resolution of any issues relating to his probation.” But this speculative claim is 

insufficient to undermine the referee’s finding. In addition, although Cowan

asserts that the juror’s “lies are strong evidence . . . that his votes for conviction 

and a death sentence were motivated by his bias against Cowan,” the referee found 

that the juror did not lie and instead simply overlooked the conviction and made an 

unintentional omission.

Cowan further argues that the juror’s “bias was evident in the juror’s 

demeanor at the evidentiary hearing” in that he “was eager to please the state by 

readily agreeing to answers suggested by the prosecution’s leading questions” yet 

was “more argumentative and defensive” toward questions posed by Cowan’s 

counsel. But even assuming that the juror exhibited different attitudes toward the 

prosecution and Cowan’s counsel at the evidentiary hearing, Cowan fails to 

demonstrate that such differences are indicative of bias against Cowan at the time 

of trial. In any event, we assume the referee evaluated the juror’s demeanor while 

testifying before finding him credible (Boyette, supra, 56 Cal.4th at p. 877), 

reasonably credited the juror’s claim that he overlooked the 1995 conviction, and 

found him not actually biased against Cowan.

In sum, the referee found that the juror had suffered a misdemeanor 

conviction for public fighting in 1995 and was placed on probation for three years 

and fined $225; the juror “simply overlooked the misdemeanor conviction when 

he filled out the questionnaire”; the juror’s failure to disclose this information was 

not intentional and deliberate, nor was it indicative of juror bias; and the juror was 

not actually biased against Cowan. We reject Cowan’s exceptions to the referee’s 

findings and accept the findings because they are supported by substantial 

evidence.
16

III.

“[D]uring jury selection the parties have the right to challenge and excuse 

candidates who clearly or potentially cannot be fair. Voir dire is the crucial means 

for discovery of actual or potential juror bias. Voir dire cannot serve this purpose 

if prospective jurors do not answer questions truthfully. ‘A juror who conceals 

relevant facts or gives false answers during the voir dire examination thus 

undermines the jury selection process and commits misconduct.’ ” (Hamilton, 

supra, 20 Cal.4th at p. 295.)

Here, the juror questionnaire asked prospective jurors to disclose their 

criminal histories, including arrests, contacts with law enforcement officials, and 

appearances in a courtroom. As the referee found, the juror failed to disclose his 

1995 misdemeanor conviction and three-year informal probation sentence. 

Although the referee found the omission was not intentional, the omission had the 

effect of depriving Cowan of his right to intelligently challenge the juror 

peremptorily or for cause. (Boyette, supra, 56 Cal.4th at pp. 889–890.) 

Nevertheless, “an honest mistake on voir dire cannot disturb a judgment in the 

absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual 

bias.” (Hamilton, supra, 20 Cal.4th at p. 300.)

“[W]hether an individual verdict must be overturned for jury misconduct or 

irregularity ‘ “ ‘is resolved by reference to the substantial likelihood test, an 

objective standard.’ ” ’ [Citations.] Any presumption of prejudice is rebutted, and 

the verdict will not be disturbed, if the entire record in the particular case, 

including the nature of the misconduct or other event, and the surrounding 

circumstances, indicates there is no reasonable probability of prejudice, i.e., no 

substantial likelihood that one or more jurors were actually biased against the 

defendant.” (Hamilton, supra, 20 Cal.4th at p. 296.) “In other words, the test asks 
17

not whether the juror would have been stricken by one of the parties, but whether 

the juror’s concealment (or nondisclosure) evidences bias.” (Boyette, supra, 

56 Cal.4th at p. 890.)

As explained above, the referee’s finding that the juror’s failure to disclose 

his 1995 misdemeanor conviction was “neither intentional nor deliberate supplies 

sufficient support for the ultimate conclusion that [the juror] was not biased 

against [Cowan].” (Boyette, supra, 56 Cal.4th at p. 890.) Cowan argues that the 

juror intentionally omitted his misdemeanor conviction so that he could be 

selected as a juror, lobby for a conviction and death sentence, and thereby earn 

good will with the District Attorney in the event he violated probation or sought

early termination of his probation. This theory, however, is speculative and 

contrary to the evidence. The juror testified that his response to Question 30, 

which asked about his attitude toward serving on this jury, reflected his belief that 

this would be “a great opportunity to serve on a jury, to do something like that” 

and that “[p]robation didn’t even cross my mind.” He also testified that he was 

not trying “to fill out or not fill out any information on the questionnaire so [he] 

could be selected as a juror.” The referee was entitled to credit the juror’s 

testimony on these points. The fact that the juror never actually asked for 

favorable treatment further supports the referee’s finding. Having found no 

substantial likelihood that the juror harbored actual bias against Cowan, we 

conclude that Cowan is not entitled to relief based on his claim of juror 

misconduct.
18

CONCLUSION

Because our order to show cause and reference order were limited to the 

jury misconduct claim involving Juror No. 045882, we do not here address any 

other claim set forth in the petition for writ of habeas corpus, which will be 

resolved by a separately filed order. (In re Crew (2011) 52 Cal.4th 126, 153–154.)

The order to show cause is discharged.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J. 

KRUGER, J.

ELIA, J.*

 

* Associate Justice of the Court of Appeal, Sixth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Cowan

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding XXX

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S158073

Date Filed: June 18, 2018

__________________________________________________________________________________

Court: Superior

County: Kern

Judge: Lee Phillip Felice

__________________________________________________________________________________

Counsel:

Mark Goldrosen, under appointment by the Supreme Court; Weinberg & Wilder and Nina Wilder for 

Petitioner Robert Wesley Cowan.

Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and 

Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, 

Catherine B. Chatman, Louis M. Vasquez, Ryan McCarroll, Eric Christoffersen, Leanne Le Mon and 

Lewis A. Martinez, Deputy Attorneys General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark Goldrosen

255 Kansas Street, Suite 340

San Francisco, CA 94103

(415) 565-9600

Lewis A. Martinez

Deputy Attorney General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 477-1677