Filed 10/26/18 P. v. Layral CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed.

Jennifer Lynne Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Gilbert Wayne Layral was convicted of one count of lewd acts on M.C., a child under the age of 14, and one count of lewd acts on M.G., also a child under the age of 14. (Pen. Code,[1] §§ 288, subd. (a), 667.61, subd. (e)(4).) The court sentenced Layral to a determinate term of 10 years and an indeterminate term of 15 years to life in prison.

Layral argues that the judgment must be reversed due to juror misconduct. Toward the end of the deliberation process, one of the jurors mentioned that as a small child he had touched an older boy's penis at the older boy's request and that he still remembered the incident although it had occurred approximately 50 years earlier. The juror did not mention this during voir dire. The trial court found the juror's failure to disclose this incident was inadvertent. The trial court questioned each juror individually about the effect of this information during deliberations, and each juror said that he or she did not consider the disclosure when making his or her decision, and that each had based his or her decision solely on the evidence at trial. The failure to disclose was not prejudicial.

We affirm the trial court's finding that no prejudicial error occurred.

BACKGROUND

John C., the brother of Layral's wife Pam, had a daughter, M.C., and a stepdaughter, M.G. The two girls spent the weekend with Layral and Pam at their house in Riverside about once a month, from the time they were five and six until they were 10 and 11. M.C. and M.G were 17 and 18 years old at the time of trial. M.G. testified that one day when she was between five and 11, after swimming at Layral's house, Layral went into the bathroom to turn the shower on for M.G. Layral put his hand inside M.G.'s bathing suit bottom and rubbed the outside of her vagina. M.G. jumped away. Layral told her not to tell anyone. She told M.C. but no one else.

M.C. testified that from the time she was seven or eight, Layral would rub her stomach, lower back and the inside of her thighs while she was wearing her bathing suit. He often lay on top of her on his bed and tickled her thighs. When M.C. was about 10 and taking a nap, Layral pulled off the bottom of her two-piece bathing suit. He rubbed her "between the two parts" of her vagina for about 15 to 20 minutes. Layral told her not to tell anyone, and she did not, fearing that both she and Layral would get into trouble. Later that day Layral tried unsuccessfully to get M.C. to take off her bathing suit and show him her body parts.

When M.C. was 14 years old, she told her mother about Layral's lewd actions. Her mother called M.C.'s father, John, who called Layral. Layral asked, ". . . What did [ . . . M.G.] say?" even though John was calling about M.C. and did not mention M.G. Layral told John that he could pass a lie detector test as to the older girls, referring to two other nieces of Layral. But he said that he could not pass a lie detector test as to M.C. and M.G. John called M.G.'s mother, who asked M.G. if Layral had done anything to her. M.G. said yes. John called the police.

Evidence was presented of Layral's prior uncharged acts. Shawna A. and Jeanette C. testified that Layral touched them lewdly when they were under 10 years old. Jeanette was 45 years old when she testified. Possibly more than 10 times, when Jeanette was between seven and nine years old, Layral made Jeanette go into his bedroom and lie on top of him. Layral moved Jeanette up and down along his body, rubbing her vagina with his penis, simulating sexual intercourse. They were clothed, however. Layral stopped when Jeanette was about 10 years old because Jeanette said she was going to tell her father. She never did, however, because she was afraid that her father would be violent with Layral and end up in custody. Jeanette told a male friend what happened when she was in her late 30's and she later told a counselor and others.

Shawna was 38 years old when she testified. She remembers being naked, on top of Layral's bare chest, when she was five or six years old. Layral moved her up and down his body, as he had done to Jeannette. Shawna, also, did not tell anyone because she was afraid her father would be violent with Layral. She told a therapist about this sexual abuse six years before testifying and later told her mother and sister.

DISCUSSION

1. There Was No Prejudice from Juror No. 12's Failure to Disclose Information at Voir Dire

Toward the end of deliberations, Juror No. 12 told the other jurors that when he was young, his older neighbor let him touch the older boy's penis, and that he could still remember that even though he was now 62 years old. He did not disclose this during voir dire because it did not come to mind. Layral argues that his constitutional rights to a fair and impartial jury were violated by Juror No. 12's failure to disclose this information during voir dire. The trial court found that Juror No. 12's failure to mention this before trial was inadvertent and that Juror No. 12 exhibited no bias against Layral. We accept the trial court's factual findings. Moreover, we find that no prejudicial error occurred because the juror demonstrated that he could be a fair and impartial juror despite his inadvertent failure to mention this incident during voir dire, and there is no evidence that his disclosure during deliberations had any effect on the other jurors' votes.

a. Background

The jury started to deliberate in the afternoon after closing arguments and returned its verdict soon after lunch the next day. Before returning the verdict, the foreperson, Juror No. 5, told the court that right before lunch, Juror No. 12 said that when he was a small child of five or six, an older boy in the neighborhood encouraged Juror No. 12 to masturbate the older boy. Juror No. 12 said he had never previously disclosed this. At that time, the jurors had all decided that Layral had lewdly touched M.C. but were split by 11 to one[2] as to whether Layral had lewdly touched M.G.[3] The foreperson said that a juror asked Juror No. 12 if that incident would influence his decision and Juror No. 12 said no. Two jurors expressed sympathy, saying something like, "Thank you for sharing. I know this must be difficult for you." There was no further discussion about Juror No. 12's statement. The jury broke for lunch. About 10 to 15 minutes after returning, the jury took a vote and had a unanimous decision on both counts. Juror No. 5 said that Juror No. 12's statement did not influence his deliberation and conclusion.

Juror No. 12 told the court that when he was young, his older neighbor "let" him touch or "do something to" the older boy's penis, and that he could still remember that event even though he was now 62 years old.[4] He mentioned it during a discussion among the jury about memories. Juror No. 12 said he did not mention this incident on his questionnaire because the questionnaire did not jog his memory about what had happened. This prior incident did not influence his deliberation or change his mind. He was on the majority side of the vote, based on the evidence at trial, throughout deliberations.

The trial court questioned each juror separately. One juror did not recall anyone talking about having been molested. All the others said they heard Juror No. 12's comment, but it did not affect their deliberations and their decisions were based on the evidence at trial. Each of the two jurors who were previously in the minority vote said that Juror No. 12's comments did not affect their votes or influence their conclusions that Layral was guilty. Juror No. 8 had decided Layral was guilty before Juror No. 12's statement. Both jurors said their decisions were based on the evidence at trial.

The court denied Layral's motion for a mistrial. The court found the jurors credible when they said that their decisions were based on the evidence at trial and that Juror No. 12's statement did not affect their deliberations. The court found Juror No. 12's failure to disclose was not intentional. He should not have made the comments, but there was no evidence that the verdict was compromised by those statements. The court found that Juror No. 12 did not commit misconduct because his failure to disclose did not show he was biased and did not influence others.

The court said it would not necessarily have excused Juror No. 12 if Juror No. 12 had disclosed the incident during voir dire. The court would have asked if he could be fair and impartial, and Juror No. 12 said that he could be fair and impartial. He said his memory did not influence his vote.

"A criminal defendant has a constitutional right to trial by an impartial and unbiased jury. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; [citation].) A deprivation of that right occurs even if only one juror is biased." (People v. Merriman (2014) 60 Cal.4th 1, 95 (Merriman).) Failure to disclose information raises a presumption of prejudice. "An intentional concealment is strong proof of prejudice, while a showing that the nondisclosure was unintentional may rebut the presumption of prejudice." (In re Manriquez (2018) 5 Cal.5th 785, 798 (Manriquez).) "What is clear is that an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror's wrong or incomplete answer hid the juror's actual bias." (In re Hamilton (1999) 20 Cal.4th 273, 300; Manriquez, at pp.797-798; Merriman, at pp. 96-98 [juror who failed to disclose that she had a relative in law enforcement made an honest mistake and showed no actual bias]; In re Boyette (2013) 56 Cal.4th 866, 890 (Boyette) [no prejudice because failure to disclose was based on juror's "dubious[,] . . . erroneous and unreasonable" but sincere interpretation of voir dire questions].)

We consider the entire record, including the nature of the nondisclosure and its surrounding circumstances, to determine if there is a substantial likelihood that the juror in question was actually biased against the defendant. In conducting this review, we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence and independently apply the law to those historical facts. (Merriman, supra, 60 Cal.4th at pp. 95-96; Boyette, supra, 56 Cal.4th at pp. 887-890.)

Substantial evidence supports the trial court's finding that Juror No. 12's failure to disclose this incident during voir dire was inadvertent. The trial court found all the jurors credible, including Juror No. 12. The court said, "We assume that jurors are telling us the truth unless we have reason to believe otherwise. And certainly, in not just hearing what they have to say, but in their demeanor, there was no hesitation in any of these jurors' minds that their individual verdict was based solely on the evidence and not on anything that was said by Juror No. 12." We accept the trial court's finding of credibility. (Merriman, supra, 60 Cal.4th at pp. 95-96.)

The questions on the pretrial juror questionnaire were all about victims and suspects of child abuse or sexual misconduct. The court's questions during voir dire were whether anyone had been a victim of a crime. Juror No. 12 did not respond to these questions and did not respond when the prosecutor asked the panel about delayed disclosure of sexual abuse or a person's ability to remember traumatic events. Juror No. 12 may not have thought of himself as abused or as a victim of a crime. He told the court that the older neighborhood boy "let" him touch the boy's penis.[5] It sounded like the incident was not traumatic or threatening to Juror No. 12 by the way he phrased it. None of the jurors indicated that Juror No. 12 seemed emotional in disclosing this incident or that his disclosure was so startling as to affect them in any way.

The facts are very similar to the circumstances in the recent case of Manriquez. In that capital case, the defendant put on evidence of mitigation of severe physical abuse and forced work 364 days per year when he was a child. The jury foreperson told the jury that she had been physically and sexually abused as a child and forced to work long hours. She had not disclosed this during voir dire despite questions about experiencing violent or criminal acts because her childhood abuse "did not come to mind." She did not consider the frequent beatings or molestation to be crimes because they were not treated as crimes when she was young. She answered pretrial questions as honestly as she could. She said she was not biased and based her determination on the evidence at trial. (Manriquez, supra, 5 Cal.5th at pp. 795-796.) The Supreme Court found that any presumption of prejudice was rebutted. The presumption of prejudice is rebutted if the entire record and circumstances show no reasonable probability of prejudice, " ' "i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." [Citation.] In other words, the test asks not whether the juror would have been stricken by one of the parties, but whether the juror's concealment (or nondisclosure) evidences bias.' " (Id. at p. 798.) We review the totality of the circumstances in light of the " ' "day-to-day realities of courtroom life" ' " and the state's strong interest in the finality of criminal verdicts. (Ibid.)

The juror's intent or lack of intent in failing to disclose information is strong evidence whether the juror was biased or not but is not dispositive. (Manriquez, supra, 5 Cal.5th at p. 798; Boyette, supra, 56 Cal.4th at p. 890.) The trial court found that Juror No. 12's failure to describe his childhood experience was unintentional. Layral asserts that the finding of inadvertence was "patently unreasonable" and "strains any credulity" but he cites no evidence to support his sweeping statements. The defendant in Manriquez similarly argued that the juror was not credible because her childhood experiences were so credible. The court rejected this contention because evidence supported the referee's finding of credibility. (Manriquez, at p. 808.) The court rejected any suggestion that nondisclosure of traumatic event is always intentional. (Id. at p. 807.) A federal court has cautioned, "[W]e must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment." (Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 973, citing McDonough Power Equip. v. Greenwood (1984) 464 U.S. 548, 555-556 [misconduct requires that motive for nondisclosure must reflect that juror was biased].) We accept the trial court's findings of credibility and fact, which here are supported by Juror No. 12's statements under oath, general demeanor, prompt, full answers to the court's questions, and the court's finding of inadvertent nondisclosure. (See Manriquez, at p. 804; Merriman, supra, 60 Cal.4th at pp. 95-96.)

There is no evidence that Juror No. 12 was biased against child molesters or had a hidden agenda. The majority of the jurors voted to convict on all counts from the beginning. Juror No. 12 did not think of his experiences until a discussion on memories shortly before the final vote. Further, he explained that he could remember the event from more than 50 years earlier. M.C. and M.G. both testified within 10 years of the sexual abuse. It was the victims of uncharged acts whose memories stretched back over several decades, not the victims of the charged acts. The juror's comment was more relevant to the uncharged acts than to the charged acts. In sum, neither the record nor the totality of the circumstances suggest bias.

Neither People v. Diaz (1984) 152 Cal.App.3d 926, 936 nor People v. Blackwell (1987) 191 Cal.App.3d 925, 929 assist Layral. Blackwell is distinguishable because the juror intentionally gave false answers during voir dire, which was strong evidence of bias, and there was no evidence that rebutted the presumption. (Blackwell, at pp. 930-931.) Layral argues that Juror No. 12 must have been biased because he was "a victim of the same class of crimes with which [Layral] was charged. (Diaz, at p. 936; but see People v. Carter (2005) 36 Cal.4th 1114, 1208, fn. 47 [noting but not resolving conflict between Diaz and other cases finding inadvertent concealment not prejudicial].) The California Supreme Court has never applied this as a firm rule. (Manriquez, supra, 5 Cal.5th at p. 798.) In Manriquez, the court found no bias even though the nondisclosed information was similar to the mitigating evidence presented by the defendant. (Ibid.; see also Gonzales v. Thomas (10th Cir. 1996) 99 F.3d 978, 989, 990 ["To hold that no rape victim could ever be an impartial juror in a rape trial would, we think, insult not only rape victims but also our entire jury system . . . ."].) Moreover, Diaz was quoted in In re Hitchings (1993) 6 Cal.4th 97, 111-112, which in turn was quoted extensively in Boyette, supra, 56 Cal.4th at pages 888-889. The Supreme Court in Boyette held that the " 'presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.' [Citation.] In other words, the test asks not whether the juror would have been stricken by one of the parties, but whether the juror's concealment (or nondisclosure) evidences bias." (Boyette, at pp. 889-890.) The court found no evidence of bias even though the juror had erroneously and unreasonably failed to disclose, in response to direct questions, his own felony conviction and alcohol problems and his sons' criminal records and one son's drug addiction. (Id. at pp. 872-873, 877-878.) Juror No. 12 did not fail to disclose such a large amount of information, and his reason for failing to disclose was reasonable, unlike the juror's in Boyette.

During voir dire Juror No. 12 should have disclosed this incident from his childhood, but his failure to do so was inadvertent, pursuant to his reasonable and credible explanation. The inadvertency of his failure to disclose is strong evidence that he was not biased against Layral for any reason other than the evidence at trial. There is no evidence that Juror No. 12 was personally biased against Layral. All the jurors based their verdict solely on the evidence at trial. The fact that Layral would have excused Juror No. 12 from the panel is not relevant when, as here, the totality of the circumstances shows no reasonable probability that one or more jurors were actually biased against the defendant. (Boyette, supra, 56 Cal.4th at p. 890.)

2. No Outside Evidence Was Introduced into Deliberations

Extrinsic information may not be introduced during jury deliberations because the jury is to decide the case on the evidence presented at trial. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76 (Allen); People v. Leonard (2007) 40 Cal.4th 1370, 1414.) But jurors are free—and expected—to discuss their own personal experiences that relate to the issues at trial. (Manriquez, supra, 5 Cal.5th at p. 815 ["jurors generally are expected to interpret the evidence presented at trial through the prism of their life experiences"]; Allen, at p. 76 [juror permissibly discussed his own experience to conclude that a witness was not telling the truth]; Leonard, at p. 1414 [no error when juror explained to other jurors during deliberations his personal experience with firearms to form opinion].) This is both a strength and a weakness of our jury system. " '[L]ay jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process.' " (People v. Manibusan (2013) 58 Cal.4th 40, 57; Leonard, at p. 1414.)

Layral contends that when Juror No. 12 told the other jurors that he could remember his childhood experience from more than 50 years earlier, he "became an unsworn, un-cross[-]examined expert and offered evidence outside the record," and by doing so he revealed his preexisting bias. We reject these contentions. Juror No. 12 told the jurors that he remembered something that happened over 50 years ago, explaining from his personal life experience the strength of children's memories. This was not extrinsic expert evidence. Juror No. 12 said long memories were possible; he did not give an expert opinion on the subject of memory and the other jurors could not interpret his statements as an expert opinion. It can be error if the juror represents himself to the other jurors as having specialized knowledge based on outside sources. (See Allen, supra, 53 Cal.4th at p. 77; In re Malone (1996) 12 Cal.4th 935, 963 [it is misconduct if a juror relates information that he claims is based on his expertise or specialized knowledge].) Juror No. 12 did not do so here.

We disagree with Layral's contention that Juror No. 12's disclosure of his childhood experience is evidence that he was biased. As we discussed ante, the fact that Juror No. 12 was involved in sexual misconduct when he was young is not evidence of bias. (See Manriquez, supra, 5 Cal.5th at pp. 803-811.) The incident was not at the forefront of his mind, he did not appear emotional or traumatized by it, he was forthright in answering the court's questions in its investigations, the trial court found credible his testimony that he did not think of this long-ago incident when answering voir dire questions, and his experience was not especially similar to the experience of M.C. and M.G. He had reached his conclusion early in the deliberations process. He discussed the incident in connection with the ability to remember events from childhood, not in connection with the abuse suffered by the girls. The trial court's finding that his failure to disclose was inadvertent, which we accept, is strong evidence that Juror No. 12 was not prejudiced against Layral. The record contains no evidence to the contrary.

Juror No. 12 presented no extrinsic evidence to the jurors and did not display bias based on his memory of what happened to him long ago. No error occurred.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.