Filed 8/7/13 P. v. McCluney CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JERRY WILLIAM MCCLUNEY, Defendant and Appellant. D062263

(Super. Ct. No. SCD212842)

APPEAL from a judgment of the Superi or Court of San Dieg o County, David M. Gill, Judge. Affirmed. Patrick Morgan Ford, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina, Ronald A. Jakob, and Kelly Ann Johnson, Deputy Attorneys General, for Pl aintiff and Respondent.2 I. INTRODUCTION Defendant Jerry William McCluney app eals from a conviction and sentence after he obtained a reversal of his convictions on two counts in a prior appeal and the case was remanded to the trial court for further pro ceedings. In the prior appeal, McCluney successfully argued that his convictions fo r assault with a fir earm and possession of cocaine for sale should be re versed because the trial court failed to conduct a hearing regarding alleged juror misconduct. On remand, the trial court held a hearing and granted McCluney's motion to release the jurors' contact information. The trial court subsequently entertained McCluney's motion for a new trial on the ground of juror misconduct, and denied the motion. The tr ial court then reinstated McCluney's convictions on the two relevant counts. In this appeal, McCluney contends that the trial court erred in denying his motion for new trial. According to McCluney, the Pe ople failed to rebut the presumption that the jury misconduct, which involved a juror referring to the dicti onary definition of "intent" during deliberations, was prejudi cial. We conclude that any presumption of prejudice was sufficiently rebutted in th is case. We therefore affi rm McCluney's reinstated convictions. II. FACTUAL AND PROCEDUR AL BACKGROUND In April 2008, McCluney thought that hi s neighbor, Brian Good in, had taken some of McCluney's cocaine. McCluney went to Goodin's house, shot him multiple times, and3 beat him with a baseball bat. ( People v. McCluney (Nov. 2, 2011, D057015) 2011 Cal.App.Unpub. LEXIS 83 68 [nonpub. opn.] ( McCluney I ).) 1 On January 23, 2009, a jury convicted McCluney of a ssault with a firearm (Pen. Code, § 245, subd. (b); count 2) 2 and possession of cocaine fo r sale (Health & Saf. Code, § 11351.5; count 4). Th e jury found true the allegation that in committing the assault in count 2, McCluney personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5, subd. (a )). The jury was unable to reach a verdict with respect to count 1, atte mpted murder, or count 3, assa ult with a dead ly weapon, and the trial court declared a mi strial as to those counts. The People elected to retr y McCluney on counts 1 and 3. On June 26, 2009, a different jury convicted McCluney on count 3, assault with a dead ly weapon (§ 245, subd. (a)(1)), and found true the allegation that he personally used a deadly weapon (a baseball bat), within the meaning of se ction 1192.7, subdivision (c)(23), in the commission of the assault.. Th e second jury was also unable to reach a verdict on count 1, the attempted murder charge. The cour t declared a mistrial as to count 1. The trial court sentenced McCluney to pr ison for a term of 21 years four months. McCluney appealed from the judgment of conviction and sentence, arguing, among other things, that the trial court erre d in failing to conduc t a hearing regarding

1 The People filed an unopposed request for judicial notice of the record in the prior appeal in this case. We grant the request for judicial notice and refer to the record in the prior appeal, as well as the unpublished opinion issued by the court, wh en relevant to this appeal. 2 Further statutory references are to th e Penal Code unless otherwise indicated.4 alleged juror misconduct at the first trial, at which he was convicted on counts 2 and 4. This court agreed with McClun ey that the trial court should have held a hearing regarding the alleged juror misconduct, vacated McClun ey's convictions on counts 2 and 4, and remanded the case to the trial court for it to hold a hearing on McCluney's motions to disclose the contact information fo r the members of the first jury. On remand, the trial court held a heari ng pursuant to Code of Civil Procedure section 237 and granted McCluney's motion to release the jurors' contact information. Approximately six weeks later, McCluney move d for a new a trial on the basis of juror misconduct. On July 6, 2012, the trial court held a hearing on McCluney's motion for a new trial. The court denied the motion and reinstated McCluney's convictions on counts 2 and 4. That same day, McCluney filed a notice of appeal. III. DISCUSSION McCluney contends that a juror's misc onduct in looking up a di ctionary definition of "intent" during deliberations in McCluney's first trial created juror bias. He argues that the trial court erred in denying his new trial motion because, he maintains, the prosecution failed to rebut the presumption of prejudice from juror bias with respect to this incident. We disagree. A. Additional background After the jury in the second trial reached its verdict, McCluney requested that the court release contact information for the jurors in the first trial, or set a hearing pursuant5 to Code of Civil Procedure section 237. McCluney's request was based on evidence discovered by a defense investigator that suggested there may have been juror misconduct during deliberations in th e first trial. The investigat or said that he had spoken with a juror from the fi rst trial who told the investigator that " 'another juror had looked up "intent" in a dictiona ry but did not comment on the mean ing of the word.' " This juror told the investigator that " '[t]his occurred after the decision on the lesser counts and prior to the jury hanging on the remaining count(s).' " ( McCluney I , supra , at *26.) The trial court denied the motion. ( Ibid .) On appeal, this court concluded that the trial court had abused its discretion in not conducting a hearing regarding th e alleged juror misconduct. ( McCluney I, supra, D057015

. ) We vacated McCluney's convictions on counts 2 and 4 and remanded the case to the trial court for a hearing pursuant to Code of Civil Procedure section 237. ( McCluney I, supra, at *33.) On remand, the trial court held a hear ing and granted McCluney's request to release the jurors' contact in formation. McCluney subsequently moved for a new trial, arguing that there had been prejudicia l juror misconduct in his first trial. At a hearing on the motion for a new tria l, the court heard testimony from Juror No. 8. Juror No. 8 remembered a discussion in the jury room du ring deliberations in McCluney's first trial concerning a dictionary . According to Juror No. 8, the jurors had been "going around and around about intent" when one of th e other jurors said, " 'The dictionary says—.' " Before that juror said anything more, the other jurors stopped him and told him that he could not discuss what he had read in the dictionary. Juror No. 86 said that at the point that th e juror in question had mentione d the dictionary, the jury had "already reached a verdict" on the counts on which th e jury ultimately wa s able to reach a verdict (counts 2 and 4). Juror No. 8 coul d not recall whether anyone had actually brought a dictionary into the jury room. Juror No. 8 did remember, however, that the other jurors immediately told the juror who me ntioned the dictionary that they were not permitted to " 'look at anything else' " and that the juror should not reveal anything else concerning what the dicti onary said about "intent." The trial court concluded that alt hough McCluney had established juror misconduct, the People had rebutted any pres umption of prejudice resulting from that misconduct. In reaching this conclusion, th e court determined that the juror who had consulted the dictionary had not shared with the other jurors any definition that he had found. The court was also satisfied that no di ctionary had been taken into the jury room. B. Legal standards "The trial court is vested with broad disc retion to act upon a motion for new trial. [Citation.] When the motion is based upon juror misconduct, the reviewing court should accept the trial court's factual findings and credibility determinations if they are supported by substantial evid ence, but must exercise its independent judgment to determine whether any misconduct wa s prejudicial. [Citations.]" ( People v. Dykes (2009) 46 Cal.4th 731, 809.) Use of a dictionary by a ju ror constitutes misconduct. ( People v. Karis (1988) 46 Cal.3d 612, 642 ( Karis ).) "Jurors are not allowed to obtain information from outside7 sources either as to factual matters or for guidance on the law." ( Ibid .; see also People v.
Barton (1995) 37 Cal.Ap p.4th 709, 715.) Juror misconduct involving the receipt of ex traneous information that was not part of the evidence received at trial creates a pr esumption that the de fendant was prejudiced by the evidence and may establish juror bias. ( People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler ).) This is because "[d]ue process mean s a jury capable and willing to decide the case solely on the eviden ce before it . . . ." ( Smith v. Phillips (1982) 455 U.S. 209, 217.) Because juror misconduct gives rise to a pr esumption of prejudic e, the prosecution must rebut the presumption by demonstrating th at "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." ( People v. Clair (1992) 2 Cal.4th 629, 668 ( Clair ); see also People v. Hardy (1992) 2 Cal.4th 86, 174 ["The presumption of prejudice may be rebu tted, inter alia, by a reviewing court's determination, upon examini ng the entire record, that there is no substantial likelihood that the complaining party suffered actual harm"].) "We assess prejudice by a review of the entire record. 'The verdict will be set aside only if there appears a substantial likelihoo d of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced th e juror. [Citations.] Second, we look to the nature of th e misconduct and the surrounding circumstances to determine whether it is substantially likely the juror wa s actually biased ag ainst the defendant.8 [Citation.] The judgment must be set aside if the court finds prejudice under either test.' [Citation.]" ( People v. Tafoya (2007) 42 Cal.4th. 147, 192.) "The first of these tests is analogous to the general standard for harmless error analysis under California law." ( In re Carpenter (1995) 9 Cal.4th 6 34, 653.) " 'Under this standard, a finding of "inherently" likely bias is required when , but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment . Application of this "inherent prejudice" test obviously depends upon a revi ew of the trial record to determine the prejudicial effect of the extrane ous information.' [Citation.]" ( People v. Danks (2004) 32 Cal.4th 269, 303.) " '[E]ven if the extran eous information was not so prej udicial, in and of itself, as to cause "inherent" bias under the fi rst test,' the nature of the misconduct and the 'totality of the circumstances surrounding the misconduct must still be exam ined to determine objectively whether a substantial likelihood of actual bias none theless arose.' [Citation.] 'Under this second, or "circumstantial" te st, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be c onsidered. . . .' [Citation.]" ( Danks , supra , 32 Cal.4th at p. 303.) C. Analysis The People concede that th e juror's conduct in referring to a dictionary constitutes misconduct. (See Karis, supra, 46 Cal.3d at p. 642.) Howe ver, the People contend that the trial court correctly determined that any presumption of prejudice from this9 misconduct was rebutted because the juror's misconduct related only to the attempted murder charge against McClun ey, and the jury did not co nvict him of that charge. Because the juror's conduct raises a re buttable presumption of prejudice, the prosecution had the burden to rebut the presumption by dem onstrating that "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." ( Clair , supra , 2 Cal.4th at p. 668.) With respect to the first test for de termining whether there appears to be a substantial likelihood of juror bias, that test requires that the extraneous information to which the jury was exposed be examined in context. ( Danks , supra , 32 Cal.4th at p. 303.) Here, the trial court found that, at most, a single juror was exposed to the extraneous material. This finding is supporte d by substantial evidence. That extraneous material—i.e., a dictionary de finition of "intent"—was not inherently or substantially likely to have influenced th at juror's verdicts on coun ts 2 and 4—the only counts on which McCluney was convicted by that jury. According to Juror No. 8, by the time another juror mentioned the dictionary definiti on of "intent," the jury had already reached its verdicts on counts 2 and 4, and jurors were discussing only whether McCluney had the requisite specific intent to be convicted of the attempted murder ch arge. The jury was ultimately unable to reach a verdict on the a ttempted murder charge. Given that all members of the jury had alrea dy agreed that McCluney was gu ilty of counts 2 and 4, both of which charged general intent crimes, the fact that a single juror may have looked at a dictionary definition of the word "intent" wa s not inherently and substantially likely to have influenced the jury's verdicts on counts 2 and 4.10 Our inquiry does not end with our conclu sion that, judged objectively, a juror's reference to the dictionary de finition of "intent" was not inherently and substantially likely to have influenced the verdict. We must also " 'look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely [that any particular] juror was actua lly biased against the defendant. . . .' [Citation.]" ( Tafoya , supra , 42 Cal.4th at p. 192, italics a dded.) Our review of the record leads us to the conclusion that it is not substa ntially likely that the juror who obtained an extraneous dictionary definition of "intent" was actually biased against McCluney. The juror did not bring up this information to th e other jurors in a manner that indicated a desire to use the information against McClune y. Rather, it appears that this juror was simply involved in a misgui ded effort to determine whet her McCluney entertained the required mental state to be convicte d on the attempted murder charge. The fact that the jury found McCluney gu ilty only on counts 2 and 4, and did not reach verdicts on counts 1 and 3, also indicates that it is not substantially likely that any juror was actually biased against Mc Cluney. As was made clear in McCluney I, supra, D057015, McCluney testified at trial and essentially admitted to having engaged in the conduct underlying his convictions on counts 2 a nd 4. The fact that the jury in the first trial convicted McCluney of only those tw o charges, and did not convict him on the remaining counts, demonstrates that the jury deliberated without actual bias against McCluney. Because "there is no substantial like lihood that any juror was improperly influenced to the defendant's detriment" ( Clair, supra, 2 Cal.4th at p. 668), there is no11 basis for reversing McCluney's convictions on counts 2 and 4 on the ground of juror misconduct. IV. DISPOSITION The judgment is affirmed.

AARON, J. WE CONCUR:

NARES, Acting P. J.

HALLER, J.