1 Filed 7/30/14 P. v. Kimani CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. EPHANTUS KIMANI, Defendant and Appellant. A138975
(Del Norte County Super. Ct. No. CRPB125137)

After a jury trial defendant Ephantus Kimani was convicted of possessing a weapon (a sharp instrument) while confin ed in state prison (Pen. Code, § 4502 1 ). In a bifurcated court proceeding, defendant admitted he had suffered a prior strike conviction within the meaning of the Th ree Strikes law (§ 667, subd s. (b) – (i), 1170.12). After denying a motion to strike the prior strike conviction (§ 1385), the court sentenced defendant to state prison for an aggregate term of six years (middle term of three years doubled for the prior strike co nviction). On appeal defend ant contends the trial court erred in denying his motion for a new trial based on allegations of juror misconduct during deliberations. We affirm.

FACTUAL AND PROCED URAL BACKGROUND A. Trial Proceedings On November 8, 2012, the Del Norte County district at torney filed an information charging defendant with one count of po ssessing a weapon (sharp instrument) while

1 All further unspecified statutory references are to the Penal Code.2 confined in state prison on May 25, 20 12. The one-day jury trial commenced on January 14, 2013 at 8:38 a.m. A jury was chos en and the court gave opening instructions. The court informed the jury, “w e’re going to go to around 12:00. If it’s not a convenient place to quit at 12:00, we may quit a few minute s before or a few minutes after. [¶] And I
don’t think that we’ll still be in session at 5:00, but normally we would quit at 5:00 or sometime around there. If you’re in delibera tions, generally my rule is you can stay and deliberate as long as you choose to as long as all twelve of you choose to. If any one person needs to leave at 5:00 because you have family comm itments or any other reason, then you all leave at 5:00, but if all twelve of you agree that you want to stay late, you can do that. That’s totally up to you. I would ask that you let me know when you’re going to come back.” The prosecutor called one witness Jonathan Cantieri. He tes tified that on May 25, 2012, he was working as a corr ectional officer at Pelican Bay State Prison. At 6:00 p.m.,
he and several other officers conducted a ran dom search of the inmates in a “day room,”
where 30 to 40 inmates are allowed to asso ciate for “about an hour” each day. As
defendant walked towa rd the officers to be searched, Cantieri noticed something in
defendant’s sock. The officer made defenda nt face the wall, placed him in handcuffs, and removed an object from his sock. The obj ect, which was referred to as a bindle, was a latex glove finger; once the latex was rem oved, the officer found toilet paper wrapped around the tip of “an inmate-manufactured weapon,” “definitely” made of a plastic material. The officer described the plastic it em as a weapon because “it’s sharpened to a point . . .” and could be used to inflict harm on the staff and other inmates. The officer
conceded he did not know what was inside the latex glove finger until he unwrapped it.
He assumed the bindle “was a weapon because of the weight and the heaviness of it, firmness of it.” On cross-examination, the officer testified he did not know who made the weapon or wrapped it in toilet paper and put latex around it, how long the bindle was in defendant’s sock, or whether or not defe ndant ever saw the weapon in its unwrapped condition. Photographs of the “weapon” af ter it was unwrapped and the actual “weapon”
were admitted into evidence as exhibits. The parties stipulated that “the defendant3 admitted at an administrative h earing to being in possession of a bindle that contained the items depicted in the exhibits.” After closing arguments and the court’ s instructions, the jury commenced its deliberations at about 3:30 p.m. At about 4:00 p.m., the court received a note from the jury asking “to review the court transcript re garding what the defendant stipulated to or stated in the administrative hearing about hi s knowing that he possessed or carried on his person a sharp object.” The court directed th e court reporter to r ead to the jury that portion of the transcript concer ning the stipulation. At ab out 4:30 p.m., the jury sent a second note again asking for the same “read back” because they did not agree “about what they just heard, so they want[ed] it re ad back again.” This time, the court responded by giving the jurors a written ve rsion of the stipulation. At 5:15 p.m., the court reconvened after being notified that the jury had reached a verdict. As directed by the court, the clerk read the verdict and polled th e jurors. The jurors each confirmed that the
verdict as read was their true and correct verdict.

B. Motion for New Trial Before sentencing, defendant filed a moti on for a new trial on the ground of juror misconduct during deliberati ons (§ 1181, subd. (4) 2 ), and in the interests of justice. In support of his motion, defenda nt submitted a declaration from Juror No. 4, w ho stated, in pertinent part, as follows: “[¶] 3. Following the presentation of the case, the Jury retired to the jury room and took an immediate vote. . . . [¶] 4. The jury con tinued to deliberate. At around 5:00 p.m., the vote was 9 for guilty and 3 for not guilty. I was one of the three for not guilty. [¶] 5. One of the ‘not guilty’ jurors was a young man that said he needed to be home by 5:30 so that he could give his mother a ride somewhere. He announced that if they were not done by 5:30 he would fore ver lose use of the family vehicle. He

2 Section 1181, subdivision 4, provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶ ] . . . [¶] . . . [¶] . . . [¶] 4. When the verdict has been decided by lot, or by any mean s other than a fair expression of opinion on the part of all the jurors . . . .”4 changed his vote to guilty so th at he could be home by 5:30. [¶] 6. The 9 jurors pressured me and the other hold outs to change our opi nions. [¶] 7. I did not believe that the prosecution met its burden that [defendant ] ‘knowingly’ possessed a weapon beyond a
reasonable doubt. I believed that there was insufficient eviden ce presented that [defendant] knew what was inside the bindle that he had on his pers on. [¶] 8. The other juror[s] wanted to go hom e. I was led to believe that we needed to reach a unanimous
verdict or we would have to continue to deliberate da y after day until a unanimous
verdict was reached.” In opposing the motion, th e prosecutor asked the court to consider a transcript of an interview with Juror No. 4, conducte d on March 29, 2013, at which both defense counsel and a representative of the district atto rney’s office questioned the juror. At that interview, Juror No. 4 explained that when the jurors first ca me into the ju ry room, they immediately took a vote, everyone said how they would vote (guilty or not guilty) and then everyone spoke regarding why they would so vote. Each juror that had originally voted not guilty ultimately changed their deci sion. Juror No. 4 di d not know why the other jurors who had originally voted not gui lty changed their opinions. The jurors who were voting guilty “were pressuring everybody to go guilty.” When asked to describe exactly what or how the jurors were pressuri ng her, Juror No. 4 replied, “Well, they were pressuring everybody, you know? ‘What was your reason?’ ” When asked if other jurors protested the “ ‘pressure,’ ” Juror No. 4 said that two other jurors, a young man and a young woman, said “it’s like, ‘O kay, fine. We’ll change our vote. But it doesn’t matter. I feel he’s not guilty.’ ” Just before the jurors took a secr et written ballot, Juror No. 4 was still verbally expressing her belief that “t hey[ ][had not] made their case,” and the young woman still wanted more evidence, but the yo ung man was not “still saying that it was Not Guilty,” because “they got him to ch ange.” Juror No. 4 did not know why the young woman ultimately changed her vote. During the secret paper ballot process, each juror wrote “Guilty.” When asked why she ch anged her verdict when she was still of the opinion that defendant was not guilty, Juror No. 4 initially said: “We ll, the young boy said, ‘I have to hurry up and get out of here . I have to pick my mom up by 5:30.’ We5 were back in the court room by 5:15 or so.” Juror No. 4 later stated that she did not know why she wrote guilty on the secret ballot. She “wanted to put Not Guilty but then [she] didn’t want everybody else to say, ‘Okay, why are you doing this to us? Why are you making it longer . . . ’ ” Because there we re only two jurors who were undecided just before the secret ballot, Juro r No. 4 felt the other jurors would know if she voted not guilty. She felt if she voted not guilty that the other ju rors would still focus on her and not the other hold-out juror. The other juro rs did not know how Juror No. 4 would vote on the secret ballot and the other jurors we re “pressuring more” on the other hold-out juror because that juro r said she needed more evidence. Ju ror No. 4 did not believe she would have to stay until the jury reached a verdict. But, when asked what she thought would happen if there was not an unanimous decision, Ju ror No. 4 said, “They didn’t wanna come back. They wanted it done and over with and that’s when the boy goes, ‘I need to get out of here by 5: 30,’ and the other jurors verbally expressed, “I don’t wanna come back,’ or ‘We don’ t wanna come back.’ ” At a May 23, 2013 hearing, the court tentatively ruled it would deny defendant’s motion for a new trial as it did not see any “a llegations of any misconduct by jurors.” What the court saw was “people indicating they felt pressured or whatever. I saw absolutely nothing that indica ted to me that there was any misconduct.” The court noted
that “a lot of the evidence and the statements by the declarant juror was basically mental processes and those are things that I don’ t think I can consider.” Because the prosecutor’s opposition was filed late, the cour t granted defendant additional time to file a reply. In further support of his motion for a ne w trial, defendant offered no additional evidence addressing his claim of juror misconduct during deliberations. Instead, he
submitted a declaration from his defense counse l who argued that the court should grant a new trial on the additional ground that Juror No. 4 had broken her promise to follow the
court’s voir dire instructions to afford defendant the presumptio n of innocence and only render a guilty verdict on a showing of pr oof beyond a reasonable doubt.6 At a June 13, 2013, hearing, the court stated that its tentative ruling to deny
defendant’s motion for a new trial had not changed. In so ruli ng, the court explained: “I did not see any proof of miscon duct. I read the declaration from [defense counsel] who argues apparently that a juror deliberatel y did not intend to follow the Court’s instructions during voir dire. I found absolutely no evidence of that whatsoever. Even if, as argued, that the juror did not follow the instructions, which I don’t believe has been established, there’s absolutely no evidence that sh e intentionally misled the Court during voir dire. [¶] As previously indicated, the C ourt cannot consider discussions of mental processes. It’s not allowable. The Court ca n consider actual allegations of facts with regard to something that was done wrong, but not how that might have affected the mental processes of the juror. I simply have no hint that the juror deliberately did not intend to follow instructions during jury sele ction. [¶] So for the reasons previously indicated, as well as what I’ve just said now , it’s my intention to deny the motion for a
new trial.”

DISCUSSION Defendant challenges the denial of his mo tion for a new trial on the ground that he
adduced evidence that one juror voted to convic t him so that the ju ror could return home by a certain hour and that other jurors had expressed their desire to go home and not return the next day for further deliberation. According to defendant, “[t]he court improperly excluded this evidence under Evid ence Code section 1150, as concerning only the juror[s’] mental processes,” but “the evidence consisted of overt acts admissible under Evidence Code section 1150, and whic h demonstrated the juror[s’] refusal to
follow the court’s instructions. This refusa l amounted to prejudicial misconduct and the remedy is remand for a new trial.” We conc lude defendant’s cont entions are unavailing. “When a party seeks a new trial based upon jury misconduct, a [trial] court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admi ssible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misc onduct, the court must determine whether7 the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be distur bed absent a clear abuse of discretion.” ( People v. Perez (1992) 4 Cal.App.4th 893, 906.) In addressing the admissibility of evidence in support of a motion for a new trial, the trial court is guided by Evidence Code sec tion 1150, which provides , in pertinent part: “Upon an inquiry as to the validity of a ve rdict, any otherwise admissible evidence may be received as to statements made, or cond uct, conditions or events, occurring, either within or without the ju ry room, of such a character as is likely to have influenced the verdict improperly. No eviden ce is admissible to show th e effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” ( Id
., subd. (a).) “ ‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective r easoning processes of the individual juror,
which can be neither corroborated nor disproved . . . .’ ” [C itations.] ‘ “This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evide nce Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” ’ ” ( People v. Danks (2004) 32 Cal.4th 269, 302, quoting People v.
Steele (2002) 27 Cal.4th 1230, 1261, quoting People v. Hutchinson (1969) 71 Cal.2d 342, 349.) Thus, “when considering evidence rega rding the jurors’ deliberations, a trial court must take great care not to overstep the bounda ries set forth in Evidence Code section 1150.” ( People v. Hedgecock (1990) 51 Cal.3d 395, 418; see In re Stankewitz (1985) 40 Cal.3d 391, 398 ( Stankewitz ).) As explained by the court in Stankewitz , although a trial court may consider “statements made . . . with in . . . the jury room ” (Evid. Code, § 1150),
the statements “must be admitte d with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning proce sses of jurors – e.g., what the juror making
the statement meant and what the juror hearing it understood . They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny.8 But no such misuse is threatened when . . . th e very making of the st atement sought to be
admitted would itself constitute misc onduct. Such an act is as much an objective fact as a juror’s reading of a novel during the taki ng of testimony [cita tion], or a juror’s
consultation with an outsid e attorney for advice on the law applicable to the case [citation].” ( Stankewitz, supra , at p. 398 [court found misconduct when a juror
communicated a statement of law to the other jurors that was not given in the court’s instructions].) “But when a ju ror in the course of deliberations gives the reasons for his or her vote, the words are simp ly a verbal reflection of the juror’s mental processes.
Consideration of such a statem ent as evidence of these proc esses is barred by Evidence Code section 1150.” ( Hedgecock, supra, at p. 419; see Danks, supra, at p. 302 [juror’s reasons for voting for death penalty cannot be considered in deciding motion for a new trial based on juror misconduct during deliberations].) People v. Cox (1991) 53 Cal.3d 618 ( Cox ) is instructive on th e rule enunciated in Stankewitz . In Cox , defendant sought a new trial cont ending he could proffer evidence that “jurors were told not to smoke at the table while they were deliberating because the nonsmoking jurors were bothered by it; and that they refused to follow that order and did smoke causing some jurors to be intimidated and change their votes;” and “[a]t one point the jury was hung seven for death and five for lif e; and one of the jurors for death told the life jurors that if they held out the jury would be locked up for thr ee weeks; and this influenced some of the jurors to change their votes.” ( Id . at p. 693.) In concluding that such proffered evidence would not sustain a motion for a new trial, the Supreme Court explained: “[W]e must reject the allegations of misconduct predicated on the intimidation of nonsmoking jurors and the expressed desire of some jurors to resolve the penalty and avoid prolonged deliberations, to the extent th ey clearly implicate ‘fellow jurors’ mental processes or reasons for assent or dissent.’ ” ( Id . at pp. 694-695.) “[W]hile the conduct of jurors disregarding an agreement on smoking or co mplaining about the pace of deliberations may be scrutinized, the effect of this conduct on subsequent votes may not
be. When we exclud e the latter, the former, standing alone, does not implicate juror misconduct; nor does the record otherwise de monstrate that some members of the jury9 were prevented from freely expressing their vi ews because of these two circumstances.” ( Cox, supra , at p. 695.) In keeping with both Stankewitz and Cox , we conclude the trial court here reasonably gave no considerati on to Juror No. 4’s statements that one juror changed his vote from not guilty to guilty “so that he could be hom e by 5:30.” Having properly rejected evidence implicating th e juror’s reason for his vote, the trial court was left only with evidence that during deliber ations one juror stated he ha d to leave by 5:30 p.m. and some of the jurors stated they did not want to retu rn another day for further deliberation. Those comments, standing alone, do not c onstitute “overt acts” of jury misconduct requiring a new trial. ( Cox, supra, 53 Cal.3d at p. 695; see Continental Dairy Equip. Co.
v. Lawrence (1971) 17 Cal.App.3d 378, 385, 387 [a ffidavits that “several of the jurors wanted to get it over with and to go home si nce they were tired due to the length of the
trial” held to be insufficient to warrant new trial as the statements “dealt with and had the effect of proving the mental processes or reasons and subjective considerations which
influenced their verdict and did not cons titute competent eviden ce to impeach the verdict”]; People v. Cook (1955) 136 Cal.App.2d 442, 446 [statements by “fellow-jurors” that “the jury would be locked up over the weekend if they should fail to arrive at a verdict . . . [do] not constitute such pressure as would deflect the integrity and honor of a citizen”].)
We also see no merit to defendant’s clai m that the jurors’ comments as described by Juror No. 4 demonstrate that members of the jury either exp licitly or implicitly intended or agreed to ignore th e court’s instructions “not to vote merely to reach a verdict or consider factors outside the scope of the ev idence.” Unlike the s ituations in the cases cited by defendant, in this case there was no evidence of an ex plicit intention or agreement to ignore the court’s instructions. Juror No. 4 did not state that any juror expressly announced that his or her reason for voting guilty was to e nd deliberations or to allow a juror to leave by 5:30 p.m. Additionally, contrary to defendant’s contention, the trial court was not required to infer an im plicit intention or agreement by one or more jurors to not follow the court’s instructions because one juror said he needed to be home10 be 5:30, that juror changed his vote shortly befo re making that statement, and other jurors expressed their desire not return the next da y for further deliberation. Rather, the trial court could reasonably find as it did that the jurors’ alleged comments did not demonstrate they had “surrendered their consci entious convictions on a material point, or
reached their verdict by compromise.” ( People v. Stevenson (1970) 4 Cal.App.3d 443, 445.) In sum, we uphold the deni al of the motion for a new trial as defendant has failed
to show the trial court abused its discretion in ruling there was no ad missible evidence of juror misconduct during deliberations.

DISPOSITION The judgment is affirmed.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________ Siggins, J.