P. v. Knight

Filed 6/26/06 P. v. Knight CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Arlene A. Sevidal, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

Defendant Donna Michelle Knight appeals from judgment entered following a jury conviction against her for second degree murder. This is defendant's second appeal in this case. In defendant's first appeal (case No. E033827), this court reversed judgment and remanded the case to the trial court with directions to consider possible jury misconduct.

Following remand, the trial court held an evidentiary hearing for the purpose of determining whether there was jury misconduct. The trial court found there was none and denied defendant's motion for new trial. Defendant contends the trial court abused its discretion by considering inadmissible juror questionnaire responses and juror testimony that revealed the jurors' subjective thought processes in violation of Evidence Code section 1150.^[1] Defendant further contends the juror questionnaires contained ambiguous questions, elicited impermissible juror responses under section 1150, and resulted in juror responses that created even greater confusion as to whether there was juror misconduct.

Defendant also argues that, by allowing only one juror to testify at the evidentiary hearing on defendant's motion for new trial, the hearing was fundamentally unfair under the federal and state Constitutions. To the extent defense counsel failed to object on evidentiary grounds or failed to request additional juror testimony, defendant claims her attorney provided ineffective assistance of counsel (IAC).

Defendant has withdrawn her additional contention concerning custody credits.

We conclude the trial court did not abuse its discretion in denying defendant's motion for new trial based on a finding of no juror misconduct. In accordance with our opinion in the previous appeal in this case, the trial court held a proper evidentiary hearing for the purpose of determining whether there was juror misconduct and reasonably concluded there was none. While some of the jurors' statements and testimony revealed jurors' subjective reasoning, such evidence was not prejudicial and defendant waived her objections to the evidence by not objecting to it in the trial court. There likewise was no IAC since there is a satisfactory explanation for defense counsel not objecting to the evidence and not requesting additional juror testimony. Furthermore, any such deficiency in representation was not prejudicial.

The judgment is affirmed.

2. Factual and Procedural Background

We take judicial notice of our prior unpublished opinion (People v. Knight (May 11, 2004, E033827)) by which we reversed judgment to the extent the trial court erred in denying defendant's motion for new trial. The factual and procedural background set forth in that opinion is incorporated here. We briefly note the following facts.

Defendant, who weighed about 300 pounds and was taking prescription medication for pain and depression, claims she gave birth without knowing she was pregnant or that she was undergoing the birthing process.

During the afternoon of September 26, 1999, defendant's friend, Debbie Paley, received a telephone call from defendant, who was crying and upset. When Paley arrived at defendant's home, defendant told her to look in the bathroom. In the bathroom, Paley found a dead baby boy wrapped in a towel and a mass of flesh next to him. Defendant explained to Paley that she gave birth to the baby that morning. Paley called 911.

When the paramedics arrived, they noticed the newborn baby in the bathtub. Defendant told the paramedics that she woke up about 11:00 a.m. with abdominal and lower back pain, which she thought were the residual effects of a prior car accident. She sat on the toilet in the bathroom, passed some blood clots, and then went back to bed. Defendant said that she did not know at the time she was pregnant and had given birth to a baby.

During several investigative interviews, defendant denied being aware she was giving birth. It was not until later, when she saw the baby in the toilet bowl, that she realized she had delivered a baby.

About eight days after the incident, during a final investigative interview, defendant admitted that she had suspected she was pregnant. She also admitted that she realized she had delivered a baby immediately afterwards but believed the baby was stillborn.

A forensic pathologist performed an autopsy on the baby and made findings, including that the baby was born alive and died of asphyxia from drowning.

Defendant was charged with first degree murder. (Pen. Code, § 187.) The jury, however, found defendant guilty of second degree murder. (Pen. Code, § 189.) The court sentenced defendant to state prison for 15 years to life.

During jury deliberations, the jury foreperson, juror No. 11, submitted a note to the court, stating: â€