Filed 9/17/18 P. v. Harris CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury found defendant Aaron Joseph Harris guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] and made a true finding on a great bodily injury causing paralysis enhancement (§ 12022.7, subd. (b)). The trial court sentenced defendant to eight years in state prison.

Defendant contends a juror committed prejudicial misconduct and the trial court erred in denying his motion for a new trial on that ground. We conclude there was no juror misconduct and affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On May 22, 2015, just before 5:00 a.m., defendant drove his girlfriend W.R. (in her car) to an alley in Manteca, so that she could engage in a sex act for money with S.I. Defendant parked the car in a church parking lot and W.R. went into the alley to meet S.I.; when she returned to her car, she told defendant that S.I. sexually assaulted her. Defendant walked toward the alley with a knife to confront S.I., then returned and drove the car into the alley. In the alley, defendant ran over S.I. with the car, crashed through a fence, drove through an above-ground pool, and came to stop in someone’s backyard. S.I. suffered significant injuries as a result of the collision, including losing the ability to walk.

The People charged defendant with attempted premeditated murder (§§ 664/187, subd. (a)) and assault with a deadly weapon, not a firearm (§ 245, subd. (a)(1)). The People also alleged S.I. suffered great bodily injury, specifically paralysis, as a result of defendant’s criminal act (§ 12022.7, subd. (b)).

At trial, defendant argued he did not intentionally hit S.I. with the car. He claimed he did not see S.I. in time to avoid him and S.I.’s injuries were the result of an accident. The arresting officer, Officer Stephen Schluer testified the alley had no overhead lights, it was dark, and it was not wide enough for two cars to pass each other without one vehicle pulling over. W.R. testified that the only lights in the alley were at the end of the alley and the right headlight was out on her car.

Defendant presented testimony from an accident reconstruction expert, Paul Herman, Ph.D. Dr. Herman testified that defendant hit S.I. with the car approximately 30 minutes before sunrise, so it would have been dark outside and visibility would be limited with only a single headlight to light the alley. Dr. Herman also testified that, based on S.I.’s injuries, defendant was driving approximately 25-30 miles an hour when he struck S.I. He also opined that based on the tire-marks and the map of the alley, defendant did not see S.I. until he was “about 105 feet” away. Thus, based on average human response time, defendant had only 39 feet to swerve or put on the brakes to avoid hitting S.I.

Dr. Herman noted there was evidence defendant swerved for about one second before hitting S.I. and no evidence defendant accelerated the car. Dr. Herman could not say with certainty whether defendant hit S.I. with the front left, center, or right of the car. He indicated there was no way to know which direction S.I. was moving when he was hit, but because the alley was dark, defendant had limited opportunity to see S.I. and react - so whether he swerved right or left, defendant could not avoid hitting S.I. Dr. Herman acknowledged he had never been to the alley where the assault occurred and he based his opinion on photographs, and information he received that the alley was completely dark. He also acknowledged lighting in the alley would impact his conclusions but did not believe lights at the end of the alley would have impacted defendant’s ability to see in the alley.

Defendant himself testified he did not intend to hit S.I. He was consoling W.R. and took his eyes off the road. When he looked up, S.I. was right in front of him. According to defendant, he turned the car to avoid hitting S.I. and did not know he hit him until immediately after the car came to a stop and W.R. said, “Oh, my, God, oh, my God, we hit somebody.”

The People presented evidence that S.I.’s father arrived home around 5:00 a.m. and heard a man and woman arguing in the church parking lot across the street from his home. He heard the woman say, “He had a knife and he put it in my neck.” He saw defendant go into the alley, come back out, and say, “Let’s go looking for that mother fucker.” He heard defendant yell, “He’s right there; he’s right there.” Then, S.I.’s father heard a crash; he ran outside and saw defendant and the female running the alley. The police arrived and S.I.’s father saw his son was covered in blood, run over by defendant.

S.I.’s mother also heard defendant and W.R. arguing. Standing outside her house, by the front door, S.I.’s mother saw defendant standing by her fence; she saw defendant turn around and say “I kill you.” She saw defendant return to the car and tell W.R. he was going to drive. Defendant made a U-turn and continued to drive. S.I.’s mother then heard a noise she described as “bam” and believed something happened to her son.

The jury found defendant not guilty of either attempted murder or the lesser included offense of attempted voluntary manslaughter, but found him guilty of assault with a deadly weapon. The jury also found true the allegation that defendant personally inflicted great bodily injury causing paralysis on S.I.

Defendant subsequently moved for a new trial on the basis of juror misconduct.[2] In support of his motion, defendant submitted declarations from Juror Nos. 10 and 11. Juror No. 10 indicated that he used to live a block away from the alley where the criminal activity occurred, and he lived there for years. As a child, he attended the church near the alley, where defendant parked his car to wait for W.R. He also used to be a garbage truck driver and his morning route included driving down that same alley.

In his declaration, Juror No. 10 thus reported that, “[b]ased on [his] personal experience and expertise with regard to the area, [he] believed there was sufficient lighting for [defendant] to see [S.I.]. [He] further believed that there was adequate width in the alley to maneuver a vehicle to avoid hitting someone, based on [his] driving of the garbage truck in said alley.” Juror No. 10 shared his beliefs with the other jurors and said he based his verdict on his own “personal knowledge and familiarity with the alley, not on the evidence introduced at trial.” Juror No. 10 also believed that his “own knowledge and familiarity with the alley biased [him] against [defendant].”

In a separate declaration, Juror No. 11 (the foreperson), indicated she cried when the verdict was read because she was “feeling guilty about the verdict and wanted to try to right the wrong.” She was “upset with [herself] for not standing behind [her] beliefs as to the evidence.” Juror No. 11 said that following the verdict, she advised defendant’s trial counsel that Juror No. 10 “informed the other jurors during deliberations that he used to be a garbage truck driver and had driven down the alley in which the accident took place in our case. He told jurors they should disregard what the defense accident reconstruction expert testified to because, contrary to the evidence presented, he indicated that you can see down the alley, there is some lighting, and that there is plenty of room in the alley.” Juror No. 11 “felt this was influential to the jurors that [defendant] was guilty of some or both charges.”

After hearing argument from both sides, the trial court ruled there was no misconduct and denied defendant’s motion. The court said jurors should be given “latitude in their determination to use common experience and illustrations in reaching their verdicts.” And the court found the information provided by Juror No. 10 was not “new evidence” because there were photos of the alley admitted into evidence along with and testimony about what the alley looked like. Juror No. 10 happened to be familiar with the area, the court ruled that did not render the juror biased against defendant. The juror was free to disregard the expert’s testimony based on “his own common-life experience.”

Defendant appeals.

II.

DISCUSSION

On appeal, defendant argues the information in Juror No. 10’s declaration establishes the juror’s own misconduct because it shows that Juror No. 10 improperly discussed evidence not admitted at trial and, based on that evidence, advised the other jurors to ignore the accident reconstruction expert’s testimony, offered by the defense. We disagree.

As our Supreme Court has explained, it is permissible for jurors to rely on their personal experiences in evaluating the evidence presented at trial. “A jury’s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters. [Citation.] Nevertheless, jurors may rely on their own experiences in evaluating the testimony of the witnesses. ‘Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them.’ [Citation.] ‘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 jury 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. . . . [Otherwise,] few verdicts would be proof against challenge.’ ” (People v. Leonard (2007) 40 Cal.4th 1370, 1414, (Leonard).)

“ ‘A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence.’ ” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 (Allen and Johnson).) “Jurors’ views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work. A juror, however, 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.” (In re Malone (1996) 12 Cal.4th 935, 963.)

Here, Juror No. 10 commented on the physical space and lighting in the alley, but there is no suggestion that he consulted any outside sources for any specialized information about the crime scene. Instead, Juror No. 10 properly relied on his personal familiarity with the alley to evaluate the evidence presented at trial. Juror No. 10 used to live in the neighborhood, he attended the church adjacent to the alley, and the alley was on his route as a garbage truck driver. Thus, he had experience with the alley and he was permitted to use that preexisting personal knowledge to evaluate the evidence and determine whether it was possible for defendant to have avoided running over the victim with his car. (Allen and Johnson, supra, 53 Cal.4th at p. 77.) Indeed, it would have been impossible for Juror No. 10 to have divorced his evaluation of the evidence, including the expert testimony, from his personal knowledge of the physical layout of the alley.

As our Supreme Court has explained, “a distinction must be drawn between the introduction of new facts and a juror’s reliance on his or her life experience when evaluating evidence.” (Allen and Johnson, supra, 53 Cal.4th at p. 76 [juror permissibly discussed his own experience with timecards in the workplace to conclude that a witness was not telling the truth about a particular factual scenario involving timecards]; see also Leonard, supra, 40 Cal.4th at p. 1414 [juror permissibly discussed own experience with handguns and their accuracy to contradict defense expert testimony]; In re Lucas (2004) 33 Cal.4th 682, 696, [juror did not commit misconduct by relating his personal experiences with drug use as part of evaluating the evidence at trial].) Juror No. 10 did not commit misconduct in commenting on defendant’s ability to avoid running over the victim in the alley because he evaluated the evidence based on his own life experiences rather than impermissibly introducing new facts into the jury deliberations.

III.

DISPOSITION

The judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Murray, J.