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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 confined in state prison (Pen. Code, § 45021

). In a 

bifurcated court proceeding, defendant admitted he had suffered a prior strike conviction 

within the meaning of the Three Strikes law (§ 667, subds. (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 conviction). On appeal defendant 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 PROCEDURAL BACKGROUND 

 A. Trial Proceedings

 On November 8, 2012, the Del Norte County district attorney filed an information 

charging defendant with one count of possessing a weapon (sharp instrument) while 

 

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 All further unspecified statutory references are to the Penal Code. 
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confined in state prison on May 25, 2012. The one-day jury trial commenced on 

January 14, 2013 at 8:38 a.m. A jury was chosen and the court gave opening instructions. 

The court informed the jury, “we’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 minutes 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 deliberations, 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 commitments 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 testified that on May 25, 

2012, he was working as a correctional officer at Pelican Bay State Prison. At 6:00 p.m., 

he and several other officers conducted a random search of the inmates in a “day room,” 

where 30 to 40 inmates are allowed to associate for “about an hour” each day. As 

defendant walked toward the officers to be searched, Cantieri noticed something in 

defendant’s sock. The officer made defendant face the wall, placed him in handcuffs, 

and removed an object from his sock. The object, which was referred to as a bindle, was 

a latex glove finger; once the latex was removed, 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 item 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 defendant ever saw the weapon in its unwrapped 

condition. Photographs of the “weapon” after it was unwrapped and the actual “weapon” 

were admitted into evidence as exhibits. The parties stipulated that “the defendant 
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admitted at an administrative hearing 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 regarding what the defendant stipulated to or 

stated in the administrative hearing about his knowing that he possessed or carried on his 

person a sharp object.” The court directed the court reporter to read to the jury that 

portion of the transcript concerning the stipulation. At about 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 read back again.” This time, the court responded 

by giving the jurors a written version 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 the 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 motion for a new trial on the ground of juror 

misconduct during deliberations (§ 1181, subd. (4)2

), and in the interests of justice. In 

support of his motion, defendant submitted a declaration from Juror No. 4, who 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 continued 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 forever 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 means other than a fair expression of opinion on the part of all 

the jurors . . . .” 
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changed his vote to guilty so that he could be home by 5:30. [¶] 6. The 9 jurors pressured 

me and the other hold outs to change our opinions. [¶] 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 evidence presented that 

[defendant] knew what was inside the bindle that he had on his person. [¶] 8. The other 

juror[s] wanted to go home. I was led to believe that we needed to reach a unanimous 

verdict or we would have to continue to deliberate day after day until a unanimous 

verdict was reached.” 

 In opposing the motion, the prosecutor asked the court to consider a transcript of 

an interview with Juror No. 4, conducted on March 29, 2013, at which both defense 

counsel and a representative of the district attorney’s office questioned the juror. At that 

interview, Juror No. 4 explained that when the jurors first came into the jury 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 decision. Juror No. 4 did not know why the 

other jurors who had originally voted not guilty 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 pressuring 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, ‘Okay, fine. We’ll change our vote. But it doesn’t matter. 

I feel he’s not guilty.’ ” Just before the jurors took a secret written ballot, Juror No. 4 

was still verbally expressing her belief that “they[ ][had not] made their case,” and the 

young woman still wanted more evidence, but the young man was not “still saying that it 

was Not Guilty,” because “they got him to change.” 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 changed her verdict when she was still of the 

opinion that defendant was not guilty, Juror No. 4 initially said: “Well, the young boy 

said, ‘I have to hurry up and get out of here. I have to pick my mom up by 5:30.’ We 
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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 were only two jurors who were undecided just 

before the secret ballot, Juror No. 4 felt the other jurors would know if she voted not 

guilty. She felt if she voted not guilty that the other jurors would still focus on her and 

not the other hold-out juror. The other jurors did not know how Juror No. 4 would vote 

on the secret ballot and the other jurors were “pressuring more” on the other hold-out 

juror because that juror said she needed more evidence. Juror 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, Juror 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 “allegations of any misconduct by jurors.” 

What the court saw was “people indicating they felt pressured or whatever. I saw 

absolutely nothing that indicated 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 court granted defendant additional time to file 

a reply. 

 In further support of his motion for a new trial, defendant offered no additional 

evidence addressing his claim of juror misconduct during deliberations. Instead, he 

submitted a declaration from his defense counsel 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 presumption of innocence and only 

render a guilty verdict on a showing of proof beyond a reasonable doubt. 
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 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 ruling, the court explained: “I 

did not see any proof of misconduct. I read the declaration from [defense counsel] who 

argues apparently that a juror deliberately 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 she intentionally misled the Court during 

voir dire. [¶] As previously indicated, the Court cannot consider discussions of mental 

processes. It’s not allowable. The Court can 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 selection. [¶] 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 motion for a new trial on the ground that he 

adduced evidence that one juror voted to convict him so that the juror 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 Evidence 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 which demonstrated the juror[s’] refusal to 

follow the court’s instructions. This refusal amounted to prejudicial misconduct and the 

remedy is remand for a new trial.” We conclude defendant’s contentions 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 admissible. (See Evid. Code, § 1150, subd. (a).) If the 

evidence is admissible, the court must then consider whether the facts establish 

misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether 
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the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling 

on each of these questions and its rulings will not be disturbed 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 section 1150, which provides, in pertinent part: 

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may 

be received as to statements made, or conduct, conditions or events, occurring, either 

within or without the jury room, of such a character as is likely to have influenced the 

verdict improperly. No evidence is admissible to show the 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 reasoning processes of the individual juror, 

which can be neither corroborated nor disproved . . . .’ ” [Citations.] ‘ “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 [Evidence 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 regarding the jurors’ deliberations, a trial court 

must take great care not to overstep the boundaries 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 . . . within . . . the jury room” (Evid. Code, § 1150), 

the statements “must be admitted with caution. Statements have a greater tendency than 

nonverbal acts to implicate the reasoning processes 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. 
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But no such misuse is threatened when . . . the very making of the statement sought to be 

admitted would itself constitute misconduct. Such an act is as much an objective fact as a 

juror’s reading of a novel during the taking of testimony [citation], or a juror’s 

consultation with an outside 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 juror in the course of deliberations gives the reasons for his 

or her vote, the words are simply a verbal reflection of the juror’s mental processes. 

Consideration of such a statement as evidence of these processes 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 the rule enunciated in 

Stankewitz. In Cox, defendant sought a new trial contending 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 life; and one of the jurors for death told the 

life jurors that if they held out the jury would be locked up for three 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 they 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 complaining about the pace of 

deliberations may be scrutinized, the effect of this conduct on subsequent votes may not 

be. When we exclude the latter, the former, standing alone, does not implicate juror 

misconduct; nor does the record otherwise demonstrate that some members of the jury 
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were prevented from freely expressing their views 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 consideration to Juror No. 4’s statements that one juror changed his 

vote from not guilty to guilty “so that he could be home by 5:30.” Having properly 

rejected evidence implicating the juror’s reason for his vote, the trial court was left only 

with evidence that during deliberations one juror stated he had to leave by 5:30 p.m. and 

some of the jurors stated they did not want to return another day for further deliberation. 

Those comments, standing alone, do not constitute “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 [affidavits that “several of the jurors 

wanted to get it over with and to go home since 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 constitute competent evidence 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 claim that the jurors’ comments as described 

by Juror No. 4 demonstrate that members of the jury either explicitly or implicitly 

intended or agreed to ignore the court’s instructions “not to vote merely to reach a verdict 

or consider factors outside the scope of the evidence.” Unlike the situations in the cases 

cited by defendant, in this case there was no evidence of an explicit 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 end 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 implicit intention or agreement by one or more 

jurors to not follow the court’s instructions because one juror said he needed to be home 
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be 5:30, that juror changed his vote shortly before making that statement, and other jurors 

expressed their desire not return the next day 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 conscientious 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 denial of the motion for a new trial as defendant has failed 

to show the trial court abused its discretion in ruling there was no admissible evidence of 

juror misconduct during deliberations. 

DISPOSITION

 The judgment is affirmed. 

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

McGuiness, P. J. 

_________________________ 

Siggins, J.