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Filed 3/24/15 P. v. Paine CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Yolo) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ANTHONY TODD PAINE, 

 Defendant and Appellant. 

C074375 

(Super. Ct. No. CRF11-271) 

 A jury convicted defendant Anthony Todd Paine of continuous sexual abuse of a 

child under 14 years of age (Pen. Code, § 288.5, subd. (a)) and found true an allegation 

that the abuse involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). 

Defendant was sentenced to state prison for 16 years. 

 On appeal, defendant contends the trial court violated its duty to investigate juror 

misconduct. He also takes the fallback position that if we decline to address his juror 

misconduct contention because of counsel’s failure to raise the issue in the trial court, 
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then he received ineffective assistance of counsel. We address defendant’s primary 

contention and conclude there was no juror misconduct and, therefore, the trial court had 

no duty to investigate. 

STATEMENT OF FACTS 

 Since the sufficiency of the evidence is not an issue, we briefly set forth the facts. 

 Defendant was convicted of one count of continual sexual abuse against M., his 

stepgranddaughter. Defendant was married to M.’s grandmother. M. frequently stayed 

with defendant and her grandmother. During M.’s stays, starting when she was about 11 

years old, defendant rubbed her chest on more than three occasions and rubbed her 

vaginal area at least three times during the accusatory period. M. did not tell her parents 

or her grandmother about the touching because she feared they would be angry with her. 

M. did tell her friend about the touching and the friend persuaded her to tell her teacher, 

which she did. 

 Defendant testified, denying ever molesting M. Defendant thought M. was lying 

because she was jealous of his relationship with her grandmother. 

DISCUSSION 

Defendant contends the trial court violated its duty to conduct a hearing into juror 

misconduct based on a letter given to the court by Juror No. 2 after the verdict had been 

rendered and the jury dismissed. The letter cited various reasons why Juror No. 2 

believed that some of the jurors had engaged in misconduct, including the following 

portion upon which defendant relies: “Eight of the twelve [jurors] decided [defendant] 

was guilty. Four of us were not convinced. [¶] When asked why those who reached a 

guilty [verdict] had come to that conclusion, two members said his body language and the 

way he presented his testimony indicated he was guilty. These jurors indicated that they 

had received training in reading body language and that [defendant’s] behavior clearly 

indicated he was not telling the truth.” 
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 Defendant argues the jurors’ statements they were trained in reading body 

language constituted an “ ‘improper injection of extrajudicial specialized information into 

the deliberations.’ ” We disagree. 

 “ ‘A juror . . . should not discuss an opinion explicitly based on specialized 

information obtained from outside sources. Such injection of external information in the 

form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is 

misconduct.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1265, citing In re 

Malone (1996) 12 Cal.4th 935, 963 (Malone).) 

 However, “[j]urors are allowed to use their life experiences in performing their 

duties. ‘ “Jurors bring to their deliberations knowledge and beliefs about general matters 

of law and fact that find their source in everyday life and experience. That they do so is 

one of the strengths of the system. It is also one of its weaknesses: it has the potential to 

undermine determinations that should be made exclusively on the evidence introduced by 

the parties and the instructions given by the court. Such a weakness, however, must be 

tolerated. ‘[I]t is an impossible standard to require . . . [the jury] to be a laboratory, 

completely sterilized and freed from any external factors.’ [Citation.] Moreover, under 

that ‘standard’ few verdicts would be proof against challenge.” [Citation.]’ [Citation.]” 

(People v. Garcia (2001) 89 Cal.App.4th 1321, 1339-1340 (Garcia).) 

 Reading the body language of a witness has long been recognized as a means of 

judging a witness’s credibility. (People v. Miranda (2011) 199 Cal.App.4th 1403, 1414 

[a witnesses’ demeanor or body language is part of the evidence in a case].) Indeed, this 

concept is statutorily recognized in Evidence Code section 780 which provides: “Except 

as otherwise provided by statute, the court or jury may consider in determining the 

credibility of a witness any matter that has any tendency in reason to prove or disprove 
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the truthfulness of his testimony at the hearing, including but not limited to any of the 

following: [¶] (a) His demeanor while testifying and the manner in which he testifies.”1

Garcia rejected a claim essentially indistinguishable from that made by defendant 

herein. There, the defendant made a motion for a new trial on grounds of juror 

misconduct. The basis for the motion was a declaration from a juror “stating that another 

juror told the jurors that he ‘had taken a course in which he had studied body language. 

[The juror] argued that based on his studies, after observing the body language of [the 

defendant] while testifying, that [the defendant] was lying.’ [The] defendant claimed that 

the juror impermissibly had interjected extrajudicial facts into the deliberation process 

and that such misconduct prejudiced the defense.” (Garcia, supra, 89 Cal.App.4th at pp. 

1338-1339.) The trial court denied the new trial motion, stating: “ ‘[T]he fact that this 

juror casually mentioned that he had taken a body language course, I mean, the way I see 

it, is pretty innocuous, even if you take that as true. [¶] In the Court’s view, [the 

defendant] got upon the stand and was one of the worst witnesses I’ve ever seen. I mean, 

his lying was obvious to everybody. No one needed a body language course to conclude 

he was lying. [¶] Even if you assume all that, I don’t think it gets us anywhere. I think 

the jurors have a right to evaluate the demeanor.’ ” (Garcia, supra, 89 Cal.App.4th at p. 

1339.) 

 In upholding the trial court, Garcia stated: “Of course it is the very function of the 

jury to evaluate the credibility of witnesses. Jurors are instructed to consider the 

demeanor and manner of the witness while testifying in order to determine the witness’s 

believability. [Citation.] The juror who volunteered that he had taken a course in body 

 

1 The jury was instructed per former CALCRIM No. 105, as follows: “You are the 

sole judges of the believability of a witness and the weight to be given to the testimony of 

each witness. In determining the believability of a witness, you may consider anything 

that has a tendency reasonably to prove or disprove the truthfulness of the testimony of 

the witness, including . . . the demeanor and manner of the witness while testifying.” 
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language did not describe himself as an expert, nor was there any reason to consider such. 

[Citation.]” (Garcia, supra, 89 Cal.App.4th at p. 1339.) 

 There is no significant difference between the facts of the present case and those 

of Garcia. Here, the jurors’ comments essentially were that because of their training in 

reading body language they interpreted defendant’s body language and the manner in 

which he presented his testimony as indicating guilt. However, there was no discussion 

regarding the substance of the two jurors’ training or how they applied that training to the 

present case. The jurors did not hold themselves out as experts nor specialists in 

interpreting body language. Nor was there any attempt by the two jurors to persuade the 

other jurors based on anything they had learned from their training. Accordingly, we find 

there was no juror misconduct. 

Malone, supra, cited by defendant in support of his misconduct of jury claim is of 

no aid to him. One of the issues in Malone involved the reliability of a polygraph 

examination taken by the defendant which he had passed. (Malone, supra, 12 Cal.4th at 

pp. 942-943.) During deliberations Juror Dianne Irwin, a psychologist, was asked by 

other jurors what she thought about polygraph examinations. (Id. at p. 947.) Irwin 

responded that “she was not an expert on polygraphs, but had read and discussed 

professional articles on the subject in the course of her studies in psychology; that while 

polygraph examiners claim an accuracy rate of 80 to 90 percent, Irwin was skeptical of 

that claim because independent researchers had found accuracy rates of only 50 to 60 

percent;” and that a key question asked by the polygraph operator to defendant regarding 

whether he had killed the victim was ambiguously worded. (Id. at p. 948.) Irwin further 

“told the other jurors these beliefs were based on her readings rather than on her own 

experimental research.” (Ibid.) 

 The Malone court concluded that Irwin’s assertion that her “information was 

drawn from her own professional knowledge . . . was an improper injection of 

extrajudicial specialized information into the deliberations,” which constituted juror 
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misconduct. (Malone, supra, 12 Cal.4th at p. 963, fn. 16.) The facts of Malone are a far 

cry from those in our case and from those in Garcia, neither of which involved jurors 

holding themselves out as experts or imparting statistics on the accuracy of the tests that 

may have been given. 

DISPOSITION 

 The judgment is affirmed. 

 NICHOLSON , Acting P. J. 

We concur: 

 MAURO , J. 

 HOCH , J.