1 Filed 3/24/15 P. v. Paine CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (P en. Code, § 288.5, subd. (a)) and found true an allegation
that the abuse involved substantial sexual co nduct (Pen. Code, § 1203.066, subd. (a)(8)).
Defendant was sentenced to st ate prison for 16 years. On appeal, defendant contends the trial c ourt violated its duty to investigate juror misconduct. He also takes the fallback positi on that if we decline to address his juror
misconduct contention because of counsel’s failure to raise th e issue in the trial court,2 then he received ineffectiv e assistance of counsel. We address defendant’s primary contention and conclude there was no juror mi sconduct 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 mo re than three occasions and rubbed her vaginal area at least three times during the acc usatory 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 moles ting M. Defendant thought M. was lying because she was jealous of his rela tionship 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 cour t by Juror No. 2 after the verdict had been rendered and the jury dismissed. The le tter cited various reasons why Juror No. 2 believed that some of the jurors had enga ged in misconduct, including the following portion upon which defendant relie s: “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 th at conclusion, two members said his body language and the way he presented his testimony in dicated he was guilty. These jurors indicated that they had received training in reading body languag e and that [defendant ’s] behavior clearly indicated he was not telling the truth.”3 Defendant argues the jurors’ statements they were trained in reading body language constituted an “ ‘improper injection of extrajudicial speciali zed 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 exte rnal 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 th eir 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 ever yday 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 ma de 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 impossi ble 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 agai nst challenge.” [Citation.]’ [Citation.]” ( People v. Garcia (2001) 89 Cal.App.4t h 1321, 1339-1340 ( Garcia ).) Reading the body language of a witness ha s long been recogni zed 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 pa rt of the evidence in a case].) Indeed, this concept is statutorily recogniz ed 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 a ny tendency in reason to prove or disprove4 the truthfulness of his testimony at the heari ng, including but not limited to any of the following: [¶] (a) His demea nor while testifying and the ma nner in which he testifies.” 1
Garcia rejected a claim essentially indistingu ishable from that made by defendant herein. There, the defendant made a mo tion for a new trial on grounds of juror
misconduct. The basis for the motion was a de claration 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 studi es, after observing the body language of [the defendant] while testifying, that [the defendant] was lying.’ [The] defendant claimed that the juror impermissibly had interjected extraj udicial 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 deni ed 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 C ourt’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 ne eded 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 instruct ed to consider the
demeanor and manner of the witness while te stifying in order to de termine the witness’s believability. [Citation.] The juror who voluntee red that he had taken a course in body

1 The jury was instructed per former CA LCRIM 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 determini ng the believability of a witne ss, you may consider anything that has a tendency reasonably to prove or di sprove the truthfulness of the testimony of the witness, including . . . the demeanor and manner of the witness while testifying.”5 language did not describe himsel f 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 defe ndant’s body language and the manner in which he presented his testimony as indica ting guilt. However, there was no discussion regarding the substance of the two jurors’ traini ng or how they applied that training to the present case. The jurors did not hold them selves out as experts nor specialists in interpreting body language. No r was there any attempt by the two jurors to persuade the other jurors based on anything they had learne d from their training. Accordingly, we find there was no juror misconduct.
Malone , supra , cited by defendant in support of hi s misconduct of jury claim is of
no aid to him. One of the issues in Malone involved the relia bility of a polygraph examination taken by the defend ant which he had passed. ( Malone, supra , 12 Cal.4th at pp. 942-943.) During deliber ations Juror Dianne Irwin, a psychologist, was asked by other jurors what she thought ab out 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, Irw in was skeptical of that claim because independent researchers ha d found accuracy rates of only 50 to 60 percent;” and that a key question asked by th e 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 ba sed on her readings rather than on her own experimental research.” ( Ibid .)
The Malone court concluded that Irwin’s as sertion that her “information was drawn from her own professional knowledg e . . . was an improper injection of extrajudicial specialized info rmation into the deliberatio ns,” which constituted juror6 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 imparti ng statistics on the accura cy of the tests that may have been given.
DISPOSITION The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

MAURO , J.

HOCH , J.