Filed 4/26/21 P. v. Smith CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DENZEL SMITH, et al.,

Defendants and Appellants.

 B303508

 (Los Angeles County

Super. Ct. No. BA472892)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Curtis B. Rappe, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of 

Appeal, for Defendant and Appellant Denzel Smith.

John F. Schuck, under appointment by the Court of Appeal, 

for Defendant and Appellant Kirby Dearlle Allen.

Spolin Law, Aaron Spolin and Jeremy Cutcher for 

Defendant and Appellant Deshon Markeist Wright.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Steven D. Matthews and J. Michael Lehmann, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Denzel Smith, Kirby Dearlle Allen, and Deshon Markeist 

Wright (collectively Defendants) took over $400 and a gold chain 

necklace from a man at gunpoint. A jury convicted them of 

second degree robbery. They jointly appeal the conviction, 

arguing that the trial court erred in denying a motion for new 

trial based on juror misconduct. Because Defendants failed to 

present credible evidence of any misconduct, we affirm.

FACTUAL BACKGROUND

On January 16, 2018, Shaquille Brown cashed his paycheck 

at a liquor store in Los Angeles. The clerk gave him 

approximately $415.

Shortly after leaving the store, Brown called 911. He told 

the dispatcher that “somebody just robbed me,” “they just robbed 

me at gunpoint.” He said that three men in a car “ran up on” him, 

and “took [his] chain” and “cash, like 400 and something dollars in 

cash.” Brown described the men as Black, with one wearing a red 

hoodie and one wearing “red over red.” He reported that the

suspects were driving a 2017 black Chevrolet Impala with paper 

license plates, and gave an approximation of their route.

The dispatcher gave this information to a Los Angeles 

Police Department helicopter. The flight officer quickly located 

the Impala and coordinated with officers on the ground to

apprehend Defendants.

An officer arrested Smith shortly after he was dropped off

in a nearby alley. At the time of his arrest, he had $105 on his 

person. Soon afterwards, the Impala turned into a parking lot. 
3

The flight officer observed Allen and Wright exiting the car and 

entering a laundromat. Wright was wearing red pants and a red 

shirt. Officers arrested the pair as they left the laundromat. 

Allen had $162 on his person, and Wright had $140.

The keys to the Impala were found in the laundromat, 

where they had been discarded behind a row of washing 

machines. The Impala’s paper plates were covering the car’s true 

license plates. Officers found another $115,1 a broken gold chain 

necklace, and a red sweatshirt in the car. Each of Defendants’ 

fingerprints were present on the doors of the Impala.

PROCEDURAL BACKGROUND

A. The Trial

Defendants were each charged with one count of second

degree robbery in violation of section 211 of the Penal Code.2

On July 18, 2019, the last day of Defendants’ trial,3 Wright 

told his counsel that he had overheard a group of jurors, 

including Juror No. 3, talking during the lunch break. Wright’s 

counsel informed Judge Ronald Coen4 that Wright told him that 

during the recess Wright observed Juror No. 3 and several other 

jurors “talking about something.” Counsel admitted that “[w]e 

1 The total amount of money discovered in Defendants’ 

possession at the time of their arrests was $522.

2 Subsequent undesignated citations are to the Penal Code.

3 The jury deadlocked in Defendants’ first trial, resulting in 

a mistrial.

4 Judge Coen was sitting in that day for the trial judge, 

Judge Curtis B. Rappe. For purposes of this opinion, we refer to 

both judges as “the trial court.”
4

don’t know what it was.” He asked for the opportunity to 

question Juror No. 3 about the conversation. Allen’s and Smith’s 

attorneys joined the request.

Judge Coen denied the request for two reasons. First, he 

cited People v. Bell (2019) 7 Cal.5th 70, for the proposition that 

mere speculation of juror misconduct is not sufficient to support 

further investigation with members of the jury. Second, he cited 

People v. Peoples (2016) 62 Cal.4th 718, as holding that a hearing 

on juror misconduct should be held only when necessary to 

resolve a disputed issue of material fact, not as a fishing 

expedition to find possible juror misconduct. Judge Coen told 

counsel that his request sounded like “a fishing expedition” 

rather than a legitimate basis for juror inquiry. Neither Wright 

nor the other attorneys provided additional details to support the 

request for further inquiry.

Immediately thereafter, the jury returned and delivered 

guilty verdicts for all Defendants on count 1.

B. The Motion for a New Trial

On August 16, 2019, Allen’s counsel filed a motion for new 

trial alleging juror misconduct. The motion included a 

declaration by Allen’s counsel that, one month after the trial, on 

August 12, 2019, counsel learned additional information 

regarding the activity Wright had observed on July 18. Counsel

claimed that Wright’s girlfriend, Ramonda Shakir, had overheard 

a group of jurors saying that “Defendants were [B]lack and how 

[the jurors] needed to get . . . [Defendants] off the streets before 

they did this to someone else,” and “the need to convince the 

other jurors to find Defendants guilty.” Smith and Wright joined 

the motion.
5

On December 11, 2019, the trial court conducted an 

evidentiary hearing on the motion for new trial. Defendants 

produced a declaration by Shakir, confirming the details recited 

in the declaration of Allen’s counsel. Shakir also appeared as the 

sole witness for the defense. Her declaration was admitted as her 

direct testimony.

On cross-examination, Shakir testified that during the 

lunch recess on July 18, she was sitting on a bench across the 

hall from the group of jurors. She repeatedly confirmed that 

Wright was in the bathroom at that time, but also claimed that 

he overheard the conversation. She recalled hearing Juror No. 35

tell three other jurors that Defendants “were Black and [the jury] 

had to basically get them off of the street before they did this to 

anyone else, and that they are criminals, and that they were 

guilty, and that [the group] needed to convince the rest of the 

jurors that [Defendants] were guilty,” or words to that effect.

Shakir testified that she told Wright’s attorney about the 

conversation before the end of the recess. She also told Allen’s 

counsel that same day.

The trial court held that Shakir’s testimony was “not 

credible.” The court found that Shakir’s testimony that she told 

both counsel for Allen and Wright about the content of the 

conversation on the final day of trial was contradicted by the 

statement by Wright’s counsel in court the same day, advising 

that he learned the jurors were “talking about something. We 

5 Shakir’s testimony describes Juror No. 3 as “an 

alternate.” The juror in question had been an alternate but was 

seated as Juror No. 3 when the original juror was dismissed for 

health reasons.
6

don’t know what it was.” Furthermore, the court expressed doubt 

that Shakir had provided the details of the juror’s statement to 

counsel because if she had, it was likely that counsel would have 

immediately brought it to the attention of the trial judge. 

Accordingly, the trial court concluded that her account, which he 

characterized as “an after-the-fact attempt to make up a story to 

extricate her boyfriend and others from the conviction,” did not 

establish juror misconduct.

Defendants timely appealed. They subsequently joined 

their appeals pursuant to rule 8.200(a)(5) of the California Rules 

of Court.

DISCUSSION

A criminal defendant has the fundamental right to trial by 

impartial jurors “that consider[ ] only the evidence admitted in 

court.” (People v. Stanley (1995) 10 Cal.4th 764, 836; see also 

U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) A 

new trial may be granted “[w]hen the jury has . . . been guilty of 

any misconduct by which a fair and due consideration of the case 

has been prevented.” (§ 1181, subd. (3).) Misconduct occurs 

when a juror renders a verdict on the basis of racial animus. 

(Pena-Rodriguez v. Colorado (2017) ___ U.S. ___ [37 S.Ct. 855, 

869] [holding that an evidentiary hearing regarding potential 

juror misconduct is proper “where a juror makes a clear 

statement that indicates he or she relied on racial stereotypes or 

animus to convict a criminal defendant”].) Misconduct also 

occurs when a group of jurors discusses the case outside the 

presence of all the jury members and outside the jury 

deliberation room. (People v. Hem (2019) 31 Cal.App.5th 218, 229 

[where a group of jurors discussed the case in the hallway outside 

the courtroom, their discussion constituted juror misconduct].)
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Defendants claim that the group of four jurors committed 

misconduct by discussing the case during the recess, and, in the 

case of Juror No. 3, by expressing racial bias to sway other jury 

members. Defendants identify two errors made by the trial court 

regarding this alleged misconduct. First, they argue the trial 

court should have investigated Wright’s allegations of juror 

misconduct. Second, they argue the court erred by denying the 

subsequent motion for new trial.

A. Request to Investigate Alleged Misconduct During

Trial

During a criminal trial, “ ‘[t]he law is clear . . . that the 

court must investigate reports of juror misconduct to determine 

whether cause exists to replace an offending juror with a 

substitute.’ [Citation.]” (People v. Mora and Rangel (2018) 5 

Cal.5th 442, 483.) However, not every complaint regarding a 

juror’s conduct warrants investigation. “[A] hearing is required 

only where the court possesses information which, if proven to be 

true, would constitute ‘good cause’ to doubt a juror’s ability to 

perform his duties and would justify his removal from the case.” 

(People v. Ray (1996) 13 Cal.4th 313, 343.) Mere speculation 

about possible juror misconduct does not justify further inquiry. 

(People v. Bell, supra, 7 Cal.5th at p. 120.)

We review the trial court’s refusal to conduct a juror 

investigation for abuse of discretion. (People v. Cleveland (2001) 

25 Cal.4th 466, 478 [“ ‘The decision whether to investigate the 

possibility of juror bias, incompetence, or misconduct—like the

ultimate decision to retain or discharge a juror—rests within the 

sound discretion of the trial court’ ”].)

We conclude the trial court acted well within its discretion 

when denying Defendants’ request to investigate potential juror 
8

misconduct. Defendants premised their request solely on 

Wright’s observation of a group of jurors conversing during a 

recess. The three defense counsel were not able to provide any 

information about the subject of the jurors’ conversation. Indeed, 

Wright’s counsel frankly admitted, “[w]e don’t know what it was.” 

Defendants’ only basis for questioning the jury was Wright’s 

suspicion that the jurors might have been talking about the case. 

Such speculation is an insufficient basis for investigation. 

(People v. Bell, supra, 7 Cal.5th at p. 120; see also People v.

Peoples, supra, 62 Cal.4th at p. 777 [a hearing on juror 

misconduct “ ‘ “should not be used as a ‘fishing expedition’ to 

search for possible misconduct, but should be held only when the 

defense has come forward with evidence demonstrating a strong 

possibility that prejudicial misconduct has occurred” ’ ”].) Under 

these circumstances, Defendants’ assertion that the trial court

“failed to conduct an adequate inquiry into the claim of jury

misconduct” is without merit.

B. Denial of Motion for New Trial

If a defendant seeks a new trial based on jury misconduct, 

he must provide admissible, credible evidence of the alleged 

misconduct. (People v. Perez (1992) 4 Cal.App.4th 893, 906 [“The

court must first determine whether the [evidence] supporting the 

motion [is] admissible. [Citation.] If the evidence is admissible, 

the court must then consider whether the facts establish 

misconduct”].) The “trial court has broad discretion” to 

determine whether a criminal defendant has produced admissible 

evidence establishing misconduct, and “its rulings will not be 

disturbed absent a clear abuse of discretion.” (Ibid.)

We conclude the trial court did not abuse its discretion in 

denying Defendants’ motion for new trial. At the hearing, 
9

Defendants presented one witness, Shakir, who provided 

additional details about the incident that she and Wright 

observed on July 18. The trial court rejected Shakir’s testimony 

after determining that she was “not credible.”

Indeed, Shakir’s testimony contradicted several points 

raised in Defendants’ argument and the record. Most critically, 

Shakir testified that she told both Wright’s counsel and Allen’s 

counsel what she had heard on the day of the incident. Yet when 

Wright’s counsel brought the incident to the court’s attention, he 

stated that Wright, not Shakir, had told him about the incident, 

but counsel did not know what the jurors had been discussing. 

When the trial court denied Defendants’ request to question the 

jury, neither counsel advised the court that Shakir, who was 

present in court, had additional information about the incident. 

Allen’s counsel later filed a declaration stating that she first 

learned about Shakir’s information on August 12, contradicting 

Shakir’s claim that she first told Allen’s counsel on the final day 

of trial one month earlier.

These inconsistencies provide ample justification for the 

trial court’s credibility finding. Since Defendants offered no other 

evidence, the trial court reasonably concluded they had not 

adduced admissible evidence establishing juror misconduct, and 

properly denied their motion for new trial.

Defendants challenge the trial court’s conclusion on four 

grounds. First, they insist that Shakir’s testimony was credible 

evidence of juror misconduct. This ignores the trial court’s 

express finding that Shakir was not credible. On appeal, we 

must “ ‘accept the trial court’s credibility determinations . . . if 

supported by substantial evidence.’ [Citation.]” (People v. 

Verdugo (2010) 50 Cal.4th 263, 308.) Defendants contend the 
10

trial court’s credibility finding is not supported by substantial 

evidence, arguing that the inconsistencies in Shakir’s testimony 

could have been resolved in other ways and that other elements 

of Shakir’s testimony are supported by the record. However, the 

fact the trial court could have made a contrary finding does not 

fatally undermine its actual finding. As we outlined above, the 

court’s finding as to Shakir’s credibility in this case is amply 

supported by the record. (See also People v. Barnwell (2007) 41 

Cal.4th 1038, 1053 [“we afford deference to the trial court’s 

factual determinations, based, as they are, on firsthand 

observations unavailable to us on appeal”].)

Second, Defendants argue that Shakir’s credibility is 

irrelevant because, even if her testimony was unreliable, the 

alleged misconduct still could have occurred. This argument 

disregards Defendants’ burden to produce evidence of juror 

misconduct, rather than assertions based on speculation. 

Defendants cite a number of cases in an attempt to support their 

argument. These cases, however, do not concern speculative 

assertions of misconduct, and thus they are inapposite. (People v. 

Lavender (2014) 60 Cal.4th 679, 691-693 [remanding where the 

prosecution conceded there were unresolved material disputes of 

fact regarding allegations of juror misconduct]; People v. Hem, 

supra, 31 Cal.App.5th at p. 225 [remanding for further 

proceedings where there was undisputed evidence of juror 

misconduct]; People v. Bryant (2011) 191 Cal.App.4th 1457, 1470-

1471 [remanding where the trial court erred in considering 

unsworn juror declarations as a basis for an allegation of juror 

misconduct]; People v. Perez, supra, 4 Cal.App.4th at p. 908 

[remanding for further proceedings where the facts assumed to be 
11

true by the trial court supported an allegation of juror 

misconduct].)

Third, Defendants argue the prosecution failed to prove 

that the alleged misconduct was not prejudicial, as required by 

constitutional standards. However, the question of prejudice 

does not arise until the defense produces admissible, credible 

evidence of juror misconduct. (People v. Perez, supra, 4 

Cal.App.4th at p. 906 [only when the defendant demonstrates 

juror misconduct does the court turn to the question of whether 

that misconduct was prejudicial].) In this case, Defendants failed 

to satisfy this threshold requirement.

Lastly, Defendants argue the trial court should have at 

least attempted to corroborate the allegations of racial bias raised 

by the defense. Defendants cite our Supreme Court’s recent 

statement “condemn[ing] racism in all its forms” and calling on 

all state courts to “confront the injustices that have led millions 

to call for a justice system that works fairly for everyone.” We 

agree wholeheartedly with this statement, and with established 

constitutional precedents denouncing the evil effects of racial bias 

in the law. (Pena-Rodriguez v. Colorado, supra, 137 S.Ct. at 

p. 868] [“[D]iscrimination on the basis of race, ‘odious in all 

aspects, is especially pernicious in the administration of justice.’

[Citation.] . . . Permitting racial prejudice in the jury system 

damages ‘both the fact and the perception’ of the jury’s role as ‘a 

vital check against the wrongful exercise of power by the 

State’ ”].) However, our obligation to remedy racial injustice does 

not require us to infer that racial bias infected a jury’s verdict

based solely on Defendants’ conjecture. Without a reason to 

question the trial court’s credibility finding as to Defendants’ sole 
12

witness, we have no grounds to order further investigation of the 

jury in this case.

Defendants failed to meet their burden to present credible 

evidence of juror misconduct. For that reason, we must affirm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.