P. v. Madrigal

Filed 8/2/06 P. v. Madrigal CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge.

Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Joseph Madrigal, through no fault of his own, is before this court for a fourth time seeking a full evidentiary hearing on juror misconduct. We previously determined that juror misconduct occurred and that the misconduct was presumptively prejudicial, in part because the trial court failed to instruct the jury with standard admonitions. The problem has been compounded further by the trial court's failure to follow our previous orders directing that Madrigal be provided access to juror information and a full evidentiary hearing to explore any allegations of juror misconduct. Because of the now significant passage of time since the trial, a period of over seven years, jurors' memories have faded and Madrigal's attempts to explore the extent and effect of the misconduct are thereby hampered.

We will, once again, grant Madrigal's request for a full evidentiary hearing.

FACTUAL AND PROCEDURAL SUMMARY

Madrigal was convicted in March 1999 of attempted murder, mayhem, and second degree robbery. He appealed and, in an unpublished opinion in case No. F033791, we determined that juror misconduct had occurred, which was presumptively prejudicial. We noted that the misconduct was presumptively prejudicial, in part because the trial court failed to instruct the jurors with the standard pretrial admonition (CALJIC No. 0.50) and the separation admonition (CALJIC No. 17.52). Because the jurors had not been instructed with the standard admonitions, they apparently were unaware that their actions constituted misconduct and neither the jury foreperson nor any other juror reported the misconduct to the trial court during the trial. We remanded the case and directed the trial court to provide juror identification information to the defense and to conduct a full evidentiary hearing on juror misconduct.

After remand, all 12 jurors were notified of the defense request for juror identification information. Eight jurors declined to be contacted. When the trial court failed to provide juror identification information on those eight jurors, or to subpoena those jurors for an evidentiary hearing, Madrigal filed a petition for writ of mandate in our case No. F042570. This court denied the petition without prejudice.

The trial court heard testimony from four jurors in March 2003. At that time, Madrigal also renewed his request for juror identification information on the remaining eight jurors or, alternatively, that the trial court subpoena those jurors for an evidentiary hearing. The trial court thereafter issued a written ruling denying the request.

On May 9, 2003, Madrigal filed a second petition for writ of mandate in our case No. F042991. On June 29, 2004, in an unpublished opinion, this court concluded that the trial court had abused its discretion and granted the petition. We directed the trial court to set an evidentiary hearing for the purpose of obtaining additional evidence on the issue of juror misconduct and to compel by subpoena the attendance of the remaining eight jurors at that evidentiary hearing.

In September 2004, the trial court held a further evidentiary hearing, taking testimony from the remaining eight jurors. At this hearing, the defense sought to question jurors about possible misconduct that had come to light after issuance of the remand. The trial court precluded questioning into this area. During the hearing, most of the jurors acknowledged that because of the passage of approximately five years since the time of the trial, their memory of events had faded.

On January 14, 2005, the trial court again denied Madrigal's motion for new trial. On February 9, 2005, Madrigal's motion for reconsideration was denied. This appeal followed.

On June 19, 2006, Madrigal filed a request that this court take judicial notice of the record in our case No. F033791.

DISCUSSION

Madrigal raises two contentions in this appeal. He maintains that he demonstrated prejudicial misconduct, which the prosecutor failed to rebut adequately, and is therefore entitled to a new trial. Alternatively, Madrigal contends the trial court abused its discretion when it refused to permit him to explore areas of potential misconduct that came to light after remand.

I. Abuse of Discretion to Limit Inquiry at Evidentiary Hearing

In Madrigal's first appeal, our analysis of juror misconduct centered on two areas: (1) receipt of outside extraneous information in the form of a newspaper article about the trial that was brought into the jury room during deliberations; and (2) separate deliberation when two jurors remained in the jury room during a break in deliberations for the purpose of reviewing certain evidence.

At the evidentiary hearing, Madrigal inquired into the misconduct surrounding the newspaper article and the instance where two jurors remained behind during a break in deliberations in order to review evidence. When Madrigal sought to examine a juror regarding other areas of misconduct, specifically, the introduction of additional extraneous information that may have affected the verdict, the prosecutor objected on the basis that it was â€