People v. Briggs CA2/7 ( 2014 )

Filed 11/19/14 P. v. Briggs CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B246695
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA118498)
v.
RAYMOND LEE BRIGGS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Pat
Connolly, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
————————————
Raymond Lee Briggs was found guilty after a jury trial of forcible rape (Pen.
1
Code, § 261, subd. (a)(2)) with true findings by the trial court in a bifurcated proceeding
that he was subject to sentencing under the “One Strike” law (§ 667.61) and had suffered
one prior serious or violent felony conviction within the meaning of section 667,
subdivision (a), and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)). On appeal he argues the trial court abused its discretion in denying his posttrial
motions for trial transcripts and appointment of a private investigator, improperly denied
his motion for a new trial and violated his right to a fair and impartial jury when it failed
to inquire into possible juror misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence at Trial; Verdict; the Initial Motion for a New Trial
Roberta C., who worked as a prostitute, testified Briggs was driving near the
intersection of 108th and Figueroa Streets in the early morning of June 2, 2011 when he
stopped and offered her $40 to watch him masturbate. Roberta, who did not know
Briggs, agreed and got into his car. After rejecting Roberta’s suggestion of a nearby alley
as the site for their illicit activity, Briggs drove out of the area.
After traveling a short distance, Briggs turned into an alley, grabbed Roberta by
the throat and began to choke her, pushing his sharp fingernails into her throat as he did.
Briggs told Roberta he was going to rape her and threatened to kill her if she screamed.
Roberta attempted to leave the car as Briggs was pulling his pants down, but he grabbed
her and slammed the car door on her left calf. Briggs then raped Roberta for
approximately 30 to 40 minutes, licking tears from her face when she cried. Briggs
inserted his finger into Roberta’s anus; she felt pain as he dug his sharp fingernail into
her. Roberta testified she did not resist because she thought she was going to die. Briggs
drove Roberta back to her neighborhood after the sexual assault was completed and again
threatened to kill her if she notified the police of the attack.
1
Statutory references are to the Penal Code.
2
Roberta wrote down Briggs’s vehicle’s license plate number after she got out of
the car. Once Briggs left the area, she called the police emergency number and reported
she had been raped. A recording of that call was played in court. When the police did
not respond, Roberta called the emergency number a second time. She finally walked to
a police station, about two blocks away, and reported the rape. Prior to leaving for the
police station, Roberta changed from the miniskirt she had been wearing during the attack
into a pair of jean shorts.
Following Roberta’s report of the rape, she was taken to the Santa Monica Rape
Crisis Center where she was interviewed and examined by Madelynn Finkelstein, a nurse,
approximately five hours after the attack. Roberta’s examination was recorded, and
portions were played in court. Roberta had a bruise on her calf, and there was bleeding
from her anus. Finkelstein found a laceration on the anus. No vaginal injuries were
found; no sperm was detected. Vaginal and genital swabs, as well as swabs from the area
around Roberta’s mouth, were taken. The People did not present the results of any DNA
testing at trial.
Several days after the attack Roberta identified Briggs from a photographic lineup.
Briggs was arrested on June 8, 2011 in a car with the license plate number Roberta had
recorded.
At trial Shasha F., who also worked as a prostitute, testified Briggs picked her up
in September 2005, threatened her with a gun and raped her. Shasha identified Briggs
from a photographic lineup following the rape and again identified him in 2011 at a live
lineup. The People also introduced into evidence an abstract of judgment, and the
prosecutor and defense counsel stipulated Briggs had been convicted of rape by force or
fear in 1998.
Briggs did not testify. His counsel introduced testimony from Los Angeles Police
Officer Richard Delgado, who took Roberta’s initial statement on June 2, 2011, which
differed in some of the details of the assault from Roberta’s trial testimony. Similarly,
testimony from Los Angeles Police Detective Marya Mason, the investigating officer in
3
the case, indicated some differences in Roberta’s narrative (for example, whether Briggs
slammed the car door on her leg prior to or after he had raped her). Finally, Cari Caruso,
a certified sexual assault nurse examiner, testified Roberta’s injuries were equally
consistent with consensual and nonconsensual intercourse.
2. Jury Deliberations and Verdict
The court completed its instructions to the jury on the afternoon of July 30, 2012,
and the jury retired to deliberate at 3:02 p.m. The jury was excused for the evening at
4:00 p.m. Deliberations resumed on July 31, 2012 at 10:00 a.m. At 10:36 a.m. the jury
informed the court it had a question, “What is the procedure for requesting and receiving
read-back of a witness[’s] testimony?” The court responded in writing. At 12:09 p.m. a
second question was presented, “A juror wrote several pages of notes and brought them
into deliberations. Does that violate any rules?” The court advised the jury to take its
lunch break and said it would address questions at 1:45 p.m. The jury resumed its
deliberations at 1:03 p.m. and informed the court it had reached a verdict at 1:28 p.m.
The court told counsel about the question regarding notes and said, “I took this to
mean that this was outside of the notes that are taken in trial, because I would expect that
everyone would bring those in. But as far as notes go, if somebody wants to write down
their thoughts and bring them in, that is fine.” Asked if he had any statement he wished
to make, defense counsel responded, “I don’t know exactly what the juror meant with the
question. I would hate there to be a situation where one juror took notes and was
referring to their notes. And then the rest of the jurors thought that somehow referring to
your notes was improper. . . . I only take this in conjunction that they asked a question
earlier about read-back, which may suggest that someone—that there is a conflict in
recollection of what was said, and maybe somebody is referring to notes, and their notes
say one thing—and I don’t know if it’s an issue or not, but I think maybe we should
inquire have they moved past that point or did they want that issue addressed.” The court
then reminded counsel it had instructed the jury to continue deliberating after asking a
question since it might take some time to prepare an answer, “which is what occurred
4
here.” Accordingly, the court declined to make any inquiry “since they have now buzzed
with a verdict, prior to any answer that would have been formulated.”
The jury returned to the courtroom, and the court took the verdict. The jurors
were polled, and all agreed with the verdict finding Briggs guilty of forcible rape. In
bifurcated proceedings on August 1, 2012, after Briggs had waived his right to a jury
trial, the court found true the prior serious felony conviction allegations under the one
2
strike and three strike laws, as well as section 667, subdivision (a).
3. Briggs’s Posttrial Self-representation and Requests for Trial Transcripts and
Appointment of a Private Investigator
The deputy public defender representing Briggs moved for a new trial on the
ground there was insufficient evidence to sustain the verdict. Defense counsel also filed
a sentencing memorandum and asked the court to dismiss Briggs’s prior strike conviction
(see People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The court denied the
new trial motion on September 27, 2012. On that same day the court granted Briggs’s
request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95
S.Ct. 2525, 45 L.Ed.2d 562], and relieved the public defender’s office as attorney of
record. Accordingly, sentencing was continued, and the matter put over for two weeks to
allow time for defense counsel’s files to be provided to Briggs.
When the case was next on calendar on October 16, 2012, Briggs stated his
intention to move for a new trial based, in part, on the purported ineffectiveness of his
trial counsel. The court directed Briggs to file any motions within 30 days. Briggs
informed the court he was currently reviewing 800 pages of discovery materials and
requested copies of photographs of the victim that had been admitted into evidence but
were not included in the documents he had. The court granted that request and scheduled
a further hearing for October 24, 2012.
2
The court also found true a prior prison term enhancement allegation under
section 667.5, subdivision (b). The court subsequently struck that allegation when
sentencing Briggs.
5
On October 24, 2012 Briggs asked the court to have money placed in his “pro. per.
account” for legal supplies. The court granted the request and asked, “What else do you
need?” Briggs replied, “I was also hoping to get a copy of the augmented trial
transcript.” The court denied that request, explaining, “They’re not prepared in advance.
What happens is that once there is an appeal filed, then the transcripts are prepared and
they’re sent to either your appellate attorney or to the Attorney General—well, to both
really—and then they’ll go through them. But at this point in time the court would not
order those, and I wouldn’t do it in any case. I’m just letting you know.” Briggs replied,
“Okay.” The court continued, “But I’ll tell you this, for what it’s worth. You were here
for the trial, and so was this court. So, I mean, whatever you need to go into, you can do
that. If there is any portion that is specific that the court has questions about . . . what I
would do is probably just inquire of my reporter, just to give me read-back of that.”
Briggs again responded, “Okay.” After a further comment from the court, Briggs said,
“Because part of my motion –.” The court interjected, “No, I know you want to bring a
new trial motion.” Briggs responded, “Yes, Sir.” And the court once again stated, “The
court just doesn’t pay for it at this point in time. And so if you could afford to do it, you
could do it. . . . It’s not you specifically, it’s just any case.”
After his request for a trial transcript was denied, Briggs asked for a “legal
runner”—someone to do legal research for him. The court denied that request as well,
reminding Briggs he was entitled to appointed counsel but had elected to represent
himself. Briggs then asked, “What about a private investigator?” The court told Briggs
he had to file a motion for an investigator and provide a specific reason for one to be
appointed. Briggs replied, “Okay.” The matter was continued to October 30, 2012.
At the October 30, 2012 hearing Briggs presented the court with a handwritten
motion to appoint a private investigator. Briggs stated he needed an investigator to locate
possible exculpatory evidence that had not been provided in a timely manner to Briggs’s
defense counsel by the prosecutor and to interview Detective Mason about mistakes she
had made during the investigation, Rape Crisis Center nurse Finkelstein about Roberta’s
6
inconsistent statements during the sexual assault examination and his defense counsel,
Deputy Public Defender Jovan Blacknell, about the delayed disclosure of discovery
materials. The court reviewed the papers and denied the motion for lack of good cause.
When Briggs said, “I don’t understand why,” the court explained, “You don’t get to
reinvestigate the case. We’re not here to retry the case. You’ve been found guilty by a
jury, and there is nothing there for which there is good cause to provide an investigator
for you to do these, this investigation at this point in time.”
Briggs then raised the specific issue of delayed production of the recordings of
Roberta’s police emergency calls. The prosecutor confirmed the recordings were not
turned over until immediately before trial. Briggs pointed out that only the recording of
the first call had been played for the jury and asserted Roberta had impeached her own
statements in the second call, “which is why I believe the prosecution didn’t present it,
and also why the detective waited until the very, very last minutes [to provide them to
defense counsel].” The court responded, “If Mr. Blacknell was not able to go forward at
that time, he would have brought a motion to continue based on not having the discovery
in a timely fashion, or he would have asked for sanctions.” The court added, based on its
experience with and respect for defense counsel, it was sure evidence concerning the
second recording would have been introduced if it were beneficial to Briggs case. The
matter was continued to November 15, 2012 for the hearing on the new trial motion.
4. Briggs’s Retention of Private Counsel and the Renewed Requests for Trial
Transcripts and Appointment of a Private Investigator
On November 15, 2012 George W. Woodworth appeared on behalf of Briggs as
privately retained counsel. (Woodworth subsequently explained he had represented
Briggs in connection with his 1998 rape conviction.) Woodworth orally renewed
Briggs’s request to have an investigator appointed and for full trial transcripts. The court
denied the motions but also gave Woodworth two weeks to file written motions to
address those matters.
On November 28, 2012 Woodworth filed a motion for new trial on the grounds of
prosecutorial misconduct, newly discovered evidence, ineffective counsel and erroneous
7
rulings by the court. Woodworth attached a declaration in which he renewed his request
for the court to order a trial transcript for use in connection with the new trial motion.
The prosecutorial misconduct identified was the delayed production of the two recordings
of the victim’s emergency calls; the newly discovered evidence allegation was based on
Briggs’s stated good faith believe that an investigator would find something helpful.
Woodworth cautiously declared, “Of course, I am not able to predict what evidence may
be located or uncovered, but leave to amend to include such evidence is also requested.”
The charge of ineffective assistance was similarly predicated on Briggs’s perception, not
Woodworth’s, of the quality of the defense. Finally, the claim of erroneous rulings
leading to improperly admitted evidence was dependent on Woodworth’s examination of
the trial transcripts, which “if borne out . . . could also be proper foundation for this
motion for new trial.”
In a separate declaration in support of order for investigator filed concurrently
with the motion for new trial, Woodworth stated that experts or examiners of the physical
evidence in the case needed to be contacted for possible new evidence (including the
possible absence of DNA evidence linking Briggs to the crime). He also indicated an
investigator was needed to explore the development and use of the photographic lineups
in the case, as well as issues relating to the handling, availability and use of the two
recordings of Roberta’s calls to the emergency operator. Although Woodworth had been
privately retained by Briggs’s family, he stated Briggs was indigent and the terms of
Woodworth’s retainer agreement specifically excluded payment of costs for investigators
or expert witnesses.
At the hearing on November 28, 2012 Woodworth advised the court it was nearly
impossible to prepare a proper new trial motion without the trial transcripts. The court
again denied the motion for a transcript. It agreed to review the renewed motion for
appointment of an investigator in camera. That motion, too, was ultimately denied.
8
5. Denial of the Second Motion for New Trial
The court denied the second motion for new trial on January 7, 2013. Woodworth
candidly acknowledged it was “not much of a motion,” and once again explained it was
virtually impossible for him to prepare a motion citing specific instances of prosecutorial
misconduct or erroneous evidentiary rulings when he had not been trial counsel and did
not have a copy of the trial transcript.
Following denial of the new trial motion, the court sentenced Briggs to an
aggregate indeterminate state prison term of 30 years to life.
DISCUSSION
1. The Trial Court’s Denial of the Requests for Trial Transcripts Was Not
Prejudicial Error
An indigent criminal defendant must be provided a free transcript of prior
proceedings when the transcript is necessary for an effective defense or appeal. (Britt v.
North Carolina (1971) 404 U.S. 226, 227 [92 S.Ct. 431, 30 L.Ed.2d 400]; People v.
Hosner (1975) 15 Cal.3d 60, 64-65.) However, “an indigent defendant is not entitled, as
a matter of absolute right, to a full reporter’s transcript of his trial proceedings for his
lawyer’s use in connection with a motion for a new trial; but, since a motion for a new
trial is an integral part of the trial itself, a full reporter’s transcript must be furnished to all
defendants, rich or poor, whenever necessary for effective representation by counsel at
that important stage of the proceeding.” (People v. Lopez (1969) 1 Cal.App.3d 78, 83.)
“There are no mechanical tests for deciding when the denial of transcripts for a motion
for new trial is so arbitrary as to violate due process or to constitute a denial of effective
representation. Each case must be considered on its own peculiar facts and
circumstances.” (People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700.) In determining
the need for a trial transcript, the trial court properly considers the value of the transcript
to the defendant in connection with the proceeding for which it is sought and the
availability of alternatives that would fulfill the same function as a transcript. (Hosner, at
pp. 64-65.) The court may deny a motion for free transcripts to prepare a new trial
9
motion if the defendant fails to show a particularized need for the transcripts. (Bizieff, at
p. 1702.)
The trial court’s categorical denial of Briggs’s initial request for a copy of the trial
transcripts for use in preparing a motion for new trial on the ground an indigent defendant
3
is not entitled to a transcript until an appeal has been filed was unquestionably wrong.
Yet that ruling could not possibly have prejudiced Briggs because he had relinquished his
self-represented status and retained private counsel who made his own request for full
trial transcripts on Briggs’s behalf before any new trial motion was filed. Accordingly,
that error, as egregious as it was, does not justify reversal of the judgment. (See Cal.
Const., art. VI, § 13 [“[n]o judgment shall be set aside, or new trial granted, in any cause
. . . for any error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error complained
of has resulted in a miscarriage of justice”]; People v. Alexander (2010) 49 Cal.4th 846,
896 [“typically, a defendant having proved error must further establish there exists a
reasonable probability he or she would have obtained a more favorable outcome in the
trial of guilt or innocence were it not for the error”]; see also People v. Braxton (2004) 34
Cal.4th 798, 816-818 [“[t]he proposition that a trial court’s refusal to hear a defendant’s
motion for a new trial is a kind of error that ‘is not covered by’ the constitutional
harmless error provision is unsound”; a trial court’s refusal to hear a new trial motion is
not reversible error if the appellate record allows the reviewing court to determine the
new trial motion lacked merit or the trial court would properly have exercised its
discretion to deny the motion].)
3
The court’s additional explanation a trial transcript was unnecessary in this case
because Briggs had been at trial, as had the judge, and any specific question about what
had happened could be answered by ordering a read-back of testimony, properly focused
on the absence of a showing of particularized need. However, the court’s ruling was
plainly based on its misunderstanding of the law in this area, not its evaluation of the
circumstances of Briggs’s request. As the court informed Briggs, “It’s not you
specifically, it’s just any case.”
10
Woodworth’s brief oral request for transcripts during his initial appearance in the
case was summarily denied; but, as discussed, the court granted him leave to file a
written motion to address the issue. In the subsequent written request for trial transcripts,
filed together with the motion for new trial itself, Woodworth asserted it was nearly
impossible for new counsel who had not been present at trial to prepare a proper motion
for new trial without transcripts. Yet other than saying Briggs was generally dissatisfied
with Blacknell’s representation of him, Woodworth identified no specific issue relating to
his claim of ineffective assistance of counsel that would be facilitated by review of the
trial transcripts. Similarly, Woodworth indicated the transcripts might reveal erroneous
rulings made by the trial court but did not suggest what any of those rulings were or even
in what portion of the trial they had occurred.
In effect, Woodworth requested full trial transcripts so he could evaluate whether
there were any arguable issues that could be raised in a motion for new trial, not to
support any particular claim that would justify granting a new trial. Briggs’s contention
it was an abuse of discretion to deny his request for trial transcripts under these
circumstances is tantamount to the assertion that new counsel, retained or appointed after
trial, is always entitled to full trial transcripts for the purpose of making a new trial
motion. That is not the law. (See, e.g., People v. Lopez, supra, 1 Cal.App.3d at pp. 83-
84 [affirming denial of request by newly retained counsel for full reporter’s transcript of
trial proceedings for use in preparation of a new trial motion]; see also People v. Bizieff,
supra, 226 Cal.App.3d at pp. 1703-1704 [affirming denial of request for full reporter’s
transcript of defendant’s first trial, which resulted in mistrial, by newly retained counsel
following verdict in second trial].) The mere substitution of new counsel or a general,
nonspecific claim of ineffective assistance of counsel does not establish a need for a trial
transcript for purposes of a motion for new trial; the defendant (or his or her new counsel)
must still show that the circumstances surrounding the challenge to defense counsel’s
representation require a full transcript. (See People v. Markley (2006) 138 Cal.App.4th
230, 241 [“a trial court may properly deny a request for free transcripts for use in a
11
motion for new trial or for use in other requests for collateral relief unless the indigent
defendant first demonstrates that the transcript is necessary for effective representation by
counsel”]; Bizieff, at pp. 1702-1704 [same]; cf. United States v. MacCollom (1976)
426 U.S. 317, 325 [96 S.Ct. 2086, 48 L.Ed.2d 666] [defendant seeking collateral relief
was in “different position” from one pursuing direct appeal].) Because there was no
adequate showing of particularized need for full trial transcripts, the trial court properly
exercised its discretion in denying the requests by Briggs’s new counsel.
In addition, Briggs has failed to demonstrate he was prejudiced by his lack of trial
transcripts. (See People v. Braxton, supra, 34 Cal.4th at p. 816.) To the extent Briggs
suggested his new trial motion would be based on an argument his trial counsel failed to
adequately prepare the case and did not introduce potentially exculpatory evidence (the
recording of the second emergency call by Roberta or forensic test results from the swabs
taken during Roberta’s sexual assault examination), his new counsel could have
investigated and, if appropriate, briefed those issues without trial transcripts. Those
claims focus on what did not happen at trial, not what did. Moreover, Briggs’s appellate
counsel had the complete trial transcripts. Nonetheless, in arguing that denial of the
transcripts for use in preparing the new trial motion was reversible error, appellate
counsel pointed to nothing in the transcripts themselves that could have been used in a
new trial motion (for example, no erroneous evidentiary rulings or instances of
prosecutorial misconduct during the trial) or that demonstrated prejudice. For that
reason, as well, we reject Briggs’s claim.
2. The Court Did Not Abuse Its Discretion in Denying the Requests for
Appointment of a Private Investigator
“‘An indigent defendant has a statutory and constitutional right to ancillary
services reasonably necessary to prepare a defense. [Citations.] The defendant has the
burden of demonstrating the need for the requested services. [Citation.] The trial court
should view a motion for assistance with considerable liberality, but it should also order
the requested services only upon a showing they are reasonably necessary. [Citation.]
On appeal, a trial court’s order on a motion for ancillary services is reviewed for abuse of
12
discretion.’” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1255; see Corenevsky v.
Superior Court (1984) 36 Cal.3d 307, 319 [right to counsel “includes the right to
reasonably necessary ancillary defense services”]; People v. Rhodes (1989)
212 Cal.App.3d 541, 554 [“‘it is only necessary investigative services to which an
indigent defendant is entitled’”].)
As was true with their requests for full trial transcripts, Briggs’s and his new
counsel’s applications for appointment of a private investigator failed to demonstrate an
investigator was reasonably necessary to assist in the preparation of the new trial motion.
There was no showing an investigator was required to interview Briggs’s trial counsel to
determine when he received discovery materials from the prosecutor or why he did not
seek to do forensic testing on the swabs collected from Roberta. Such an interview could
have been conducted by Briggs’s new counsel himself: There was no indication the
deputy public defender would not have cooperated fully. Similarly, Briggs’s general
assertion a private investigator was necessary to attempt to develop new evidence, at least
in the absence of some specific factual showing that exculpatory evidence likely existed
but was overlooked by trial counsel, was insufficient to satisfy the standard for providing
posttrial ancillary services to an indigent defendant. (See People v. Beardslee (1991)
53 Cal.3d 68, 100 [defendant “had the burden of showing that the investigative services
were reasonably necessary by reference to the general lines of inquiry he wished to
pursue, being as specific as possible. [Citation.] Although a motion for assistance should
be viewed with considerable liberality [citation], on appeal the trial court’s order is
presumed correct. Error must be affirmatively shown”]; see also People v. Hajek and Vo,
supra, 58 Cal.4th p. 1255 [“[t]he defendant has the burden of demonstrating the need for
the requested services’”].)
3. The Motion for New Trial Was Properly Denied
“‘“We review a trial court’s ruling on a motion for a new trial under a deferential
abuse-of-discretion standard.” [Citations.] “‘A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court will not disturb
13
the ruling absent a manifest and unmistakable abuse of that discretion.’”’” (People v.
Lightsey (2012) 54 Cal.4th 668, 729; accord, People v. McCurdy (2014) 59 Cal.4th 1063,
1108.)
Briggs essentially concedes his new trial motion, as presented, was inadequate.
Rather, he argues the trial court abused its discretion in denying his motion without first
providing his new counsel with a copy of the trial transcripts or the services of a private
investigator. As discussed, both of those requests were properly denied. Accordingly, it
was not error to deny the new trial motion as well.
Briggs also suggests several comments by the trial court during the hearing on the
new trial motion reveal the court was neither exercising reasoned judgment nor deciding
the matter without bias toward the defendant when it denied the motion. In particular,
when discussing the prosecutor’s apparent failure to turn over the recordings of Roberta’s
calls to the emergency operator in a timely fashion, the court stated, “[W]ith all due
respect to you, Mr. Woodworth, perhaps your client shouldn’t be out raping prostitutes
and they wouldn’t have to generate 911 calls.” We agree that comment was entirely
inappropriate. (See Cal. Code of Judicial Ethics, Canon 3.B(4) [“[a] judge shall be
patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with
4
whom the judge deals in an official capacity”].) Nonetheless, viewed in context this
single intemperate remark does not demonstrate an “arbitrary determination, capricious
disposition or whimsical thinking” (In re Cortez (1971) 6 Cal.3d 78, 85) or otherwise
establish an abuse of discretion that provides a basis for disturbing the court’s denial of
the new trial motion.
4
The court also responded to Briggs’s contention his trial counsel had provided
ineffective assistance by stating he was “extremely offended” by the criticism and
observing that defense counsel had done an outstanding job. Although perhaps
injudicious, those comments do not suggest the court failed to properly consider any of
the posttrial motions on the merits.
14
4. There Was No Possible Juror Misconduct That Required Investigation
A new trial may be granted when a jury receives evidence out of court other than
an authorized view of the scene or if the jury has engaged in misconduct that has
prevented fair and due consideration of the case. (§ 1181, subds. 2 & 3; see People v.
Hayes (1999) 21 Cal.4th 1211, 1255.) “When a trial court is aware of possible juror
misconduct, the court ‘must “make whatever inquiry is reasonably necessary’” to resolve
the matter. [Citation.] It must do so, however, only when the defense comes forward
with evidence that demonstrates a ‘strong possibility’ of prejudicial misconduct.”
(Hayes, at p. 1255.) Briggs’s claim the trial court failed to make the required
investigation of possible juror misconduct in this case, thereby depriving him of his right
to a fair and impartial jury, lacks merit.
As discussed, shortly before reaching its verdict, the jury sent the court a question,
“A juror wrote several pages of notes and brought them into deliberations. Does that
violate any rules?” The court indicated the note likely meant one of the jurors had
written down his or her thoughts and brought them into the jury room, which the court
indicated “is fine.” Defense counsel, although conceding he did not know what the juror
meant, thought perhaps the jurors were unsure if they could refer to the notes they had
taken during trial. However, counsel also observed the jurors might have already moved
past the point where their question needed an answer. The court responded they had,
explaining the jury had continued deliberating after asking the question and had signaled
it had reached a verdict. Accordingly, the court declined to make any further inquiry on
this point.
It is, of course, appropriate for jurors to take notes during trial and to use them
during deliberations: The jury here was fully and properly instructed pursuant to
CALCRIM No. 202 with respect to the use of their trial notes. (See Cal. Rules of Court,
rule 2.1031 [jurors permitted to take notes in all criminal and civil trials].) It is also
permissible, as the trial court observed, for a juror to make notes reflecting his or her own
thoughts and to bring those notes into deliberations. (See People v. Collins (2010)
15
49 Cal.4th 175, 255; Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 263-
264.) There is absolutely no basis on this record to believe, as Briggs now contends, that
the notes referred to in the jury’s question did not fall within one of those two permissible
categories or that they otherwise included extrinsic information not properly considered
by the jury. To the contrary, the jury was expressly admonished not to consult sources of
information outside of the evidence actually presented during trial. Absent a contrary
showing, we presume the jury followed those instructions. (See People v. Hajek and Vo,
supra, 58 Cal.4th at p. 1216; People v. Homick (2012) 55 Cal.4th 816, 867.)
Indeed, far from showing a strong possibility of prejudicial misconduct, defense
counsel suggested, at most, that the jurors might need to be instructed (or reinstructed) on
what they could do with their notes, not what was prohibited. In any event, given that the
jury had continued to deliberate and signaled it had reached a verdict, the court acted well
within its discretion in declining to respond to the jury’s question or to inquire further as
to its meaning. “[N]ot every incident involving a juror’s conduct requires or warrants
further investigation. ‘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.’” (People v. Cleveland (2001)
25 Cal.4th 466, 478.) There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J. SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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