P. v. Huhn

Filed 4/3/07 P. v. Huhn CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Judgment reversed.

A jury convicted Apollo R. Huhn of the first degree murder of Steven Brucker and conspiracy to commit robbery and burglary. Huhn appeals, contending the trial court (1) improperly denied his request to instruct the jury on the defense of duress; (2) incorrectly responded to a jury note; and (3) wrongfully denied his new trial motion based on juror misconduct. He also contends that the cumulative effect of these errors mandates reversal of the judgment and that the abstract of judgment and sentencing minutes erroneously reflect imposition of a restitution fine.

We agree that the trial erred in denying Huhn's motion for a new trial based on juror misconduct and reverse the judgment. This conclusion moots any error regarding the restitution fine and the jury note. Because this case may be retried, we address Huhn's contentions regarding the duress instruction to guide the trial court on remand. (Code Civ. Proc.,  43.)

FACTUAL AND PROCEDURAL BACKGROUND

In the late 1990s, Randy Lee was a high school friend of Brucker's son. Lee visited the Brucker home numerous times and knew where Brucker kept his safe and that Brucker owned the El Cajon Speedway. Years later, Lee began associating with Zach Paulson, Huhn, Valerie Peretti (Huhn's pregnant girlfriend), Brandon Handshoe and Eric Anderson. Handshoe, Paulson and Huhn were unemployed during the time Peretti dated Huhn and the group would hang out at Handshoe's home to use drugs.

During the summer of 2002, Peretti heard Lee telling Huhn about someone in El Cajon that kept $2 million in a safe. In January or February 2003, Lee mentioned Brucker's safe to Paulson and Handshoe and suggested that they rob Brucker and give him 15 percent of the money. The following month, Lee spoke to Paulson, Handshoe, Lee and Huhn about robbing the owner of the safe. On a later occasion, Paulson, Lee, Huhn and Anderson discussed a possible robbery where Anderson would hold the owner of the safe hostage while Huhn opened the safe and Handshoe acted as a lookout.

On the afternoon of April 14, 2003, Peretti went to Handshoe's home to meet Huhn. She observed Anderson with guns and various disguises and saw him wearing a "salt and pepper" colored hairpiece and thick eyeglasses. At some point, Anderson sat down with Handshoe, drew diagrams of a house and described to Handshoe how they would burglarize it. Anderson then asked Huhn if he would go with them. Huhn and Peretti looked at the diagrams and Anderson told Huhn that Huhn would keep watch. The three men then left the house in Anderson's Ford Bronco and drove to Brucker's home in El Cajon.

After parking in Brucker's driveway, Anderson and Huhn got out of the car where Handshoe waited and acted as the lookout. Handshoe was armed at the time with a semiautomatic weapon that Anderson had given him. About two minutes later, Handshoe heard a gunshot and Brucker's screams. Anderson and Huhn then ran back to the car and the trio left. After Handshoe asked Anderson to let him out of the car, Anderson told the men that they would be next if they said anything. Anderson went to the home of a friend, Rory Fay, stayed for about two hours and had Fay drive him back home where he saw Peretti and Huhn.

When sheriff's deputies arrived at the Brucker residence, they found Brucker alive and had him describe what happened. Brucker stated that he confronted two white men at his front door, told them to leave his property and was then shot in the chest by a man with salt and pepper colored hair. Brucker later died at the hospital from his wound. At some point, Peretti told her father about the crime, which he ultimately reported and collected a reward for offering information about the murder.

An information was filed charging Huhn, Handshoe, Anderson and Lee with murder and conspiracy to commit residential burglary and robbery. Anderson was also charged with two counts of burglary, possession of a firearm and grand theft. As relevant to Huhn, the information alleged that he aided and abetted the murder, committed the murder while on felony probation and during the commission of a burglary and robbery and was vicariously liable for the use of a firearm during the crimes. A jury found Huhn guilty of first degree murder and conspiracy and found true all special circumstances and enhancements. The trial court sentenced Huhn to state prison for life without the possibility of parole plus one year. Huhn appeals.

DISCUSSION

I. Denial of New Trial Motion

1. Facts

Huhn moved for a new trial based, in part, on juror misconduct discovered after the verdict. Huhn presented declarations from Juror Nos. 2 and 10 to show misconduct and we summarize the admissible portions of these declarations below.During deliberations, the jury sent a note to the court asking the following question: "May we take into account the possibility of threat or coercion as it pertains to [the first degree murder count,] Count #1?" The court answered the question as follows: "In order to respond appropriately, could you please describe more fully what you mean by the phrase 'as it pertains to Count One.'"

That evening, Juror No. 10 telephoned a close friend who had previously served on a jury and told her about being on a jury and feeling pressured to change her verdict. "I told her that I felt that the young man who was charged had been threatened into going along on the crime, and told her that I had asked the judge a question regarding that, but the judge had not given us any guidance on the issue. She told me that it sounded as if the judge wasn't going to answer our question, so I should change my vote to guilty. She said that's what she would do." Before this conversation the jury had undertaken several ballots, with two jurors initially voting not guilty and then three jurors voting not guilty. Two days after Juror No. 10's conversation, the jury rendered a unanimous guilty verdict on all counts and special circumstances.

Juror No. 2 spent a long time in the deliberation room bathroom crying about the verdict. After the verdict, she spoke to Juror No. 10 about her inability to sleep and how upset she was about the verdict. She gave Juror No. 10 permission to contact Huhn's counsel and reveal her name and feelings.

The trial court struck those portions of Juror No. 10's declaration reflecting her thought processes and counsel stipulated that juror misconduct had occurred. After noting that Juror No. 10 wanted to acquit Huhn and that she had struggled with the fact that the jury instructions she had received did not allow her to acquit, the trial court concluded that rather than following her desire to acquit, Juror No. 10 properly decided the case based on the facts and the law. Accordingly, the trial court denied the new trial motion.

2. Analysis

When a party seeks a new trial based upon jury misconduct, we undertake a three-step inquiry, first determining whether the affidavits supporting the motion are admissible. (Evid. Code,  1150, subd. (a).) If the evidence is admissible, we then consider whether the facts establish misconduct and determine whether any misconduct was prejudicial. (People v. Hord (1993) 15 Cal.App.4th 711, 724; People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)

Turning first to the admissibility of the juror declarations, Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." Accordingly, evidence to impeach a verdict is limited to "proof of overt conduct, conditions, events, and statements . . . . This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." (People v. Hutchinson (1969) 71 Cal.2d 342, 349-350; People v. Danks (2004) 32 Cal.4th 269, 302 (Danks) [portions of the declarations reflecting the jurors' thought processes, opinions, suppositions, regrets or beliefs are inadmissible].)

"Evidence Code section 1150 may be violated 'not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.' [Citation.]" (People v. Duran, supra, 50 Cal.App.4th at pp. 112-113, quoting People v. Hedgecock (1990) 51 Cal.3d 395, 418-419; see e.g., Danks, supra, 32 Cal.4th at p. 302 [court cannot consider why juror was experiencing stress, what verdict she was considering or the reasons for her verdict].) We applied these rules to the juror declarations, excised the inadmissible portions reflecting the jurors' thought processes, opinions, suppositions, regrets and beliefs (Danks, supra, 32 Cal.4th at p. 302) and summarized the admissible portions above.

Juror misconduct occurs when a juror obtains information about a party or the case that was not part of the evidence received at trial. (People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler).) Where there are allegations of juror misconduct, the trial court may hold an evidentiary hearing to determine what transpired. (Remmer v. United States (1954) 347 U.S. 227, 229-230.) Although Huhn requested an evidentiary hearing below, a hearing is only necessary if there is a material conflict in the parties' evidence that can only be resolved at such a hearing. (People v. Hedgecock, supra, 51 Cal.3d at p. 419.) Here, it is undisputed that Juror No. 10 committed misconduct when she discussed the case with a nonjuror during jury deliberations. (People v. Pierce (1979) 24 Cal.3d 199, 207.) Accordingly, to the extent the trial court decided the motion without holding an evidentiary hearing, it did not abuse its discretion.

A criminal defendant has a constitutional right to a trial by unbiased, impartial jurors and it is well settled that a conviction cannot stand if even a single juror has been improperly influenced. (People v. Nesler, supra, 16 Cal.4th at p. 578.) Juror misconduct leads to a rebuttable presumption that the defendant was prejudiced thereby. (Danks, supra, 32 Cal.4th at p. 302.) Where, as here, a juror commits misconduct by receiving information from an extraneous source, the entire record must be reviewed and we will set aside a verdict if there appears a substantial likelihood of juror bias. (Id. at p. 303.) Such bias can appear in two different ways. "'First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.' [Citation.]" (Ibid.) Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (Ibid.) The judgment must be set aside if the court finds a substantial likelihood of prejudice under either test. (Id. at pp. 303-304.)

Under the "inherent prejudice" test, a finding of "'inherently' likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. Application of this 'inherent prejudice' test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information.' [Citation.]" (Danks, supra, 32 Cal.4th at p. 303, quoting In re Carpenter (1995) 9 Cal.4th 634, 653.) Under the "circumstantial" test, we again examine the totality of the circumstances surrounding the misconduct, including the trial record, to determine objectively whether a substantial likelihood of actual bias arose. (Danks, supra, 32 Cal.4th at p. 303.) Actual bias arises when the juror becomes "unable to put aside her impressions or opinions based upon the extrajudicial information she received and to render a verdict based solely upon the evidence received at trial." (Nesler, supra, 16 Cal.4th at p. 583.)

We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence; however, whether prejudice arose from juror misconduct presents a mixed question of law and fact subject to our independent determination. (Danks, supra, 32 Cal.4th at pp. 303-304.) As explained below, application of the second "circumstantial" test reveals it is substantially likely that Juror No. 10 was actually biased against Huhn.

Juror No. 10 contacted a close friend and the friend's inquiry as to "what was wrong" prompted the juror to describe the crime and her frustration when the trial court did not answer the jury note. Thereafter, the friend suggested that the juror should change her vote to guilty, stating "that's what she would do." Based on Juror No. 10's statement to her friend that she was being pressured to change her vote, it is clear that she was one of three jurors that had previously voted not guilty. Unlike Danks, the record here suggests that Juror No. 10's conversation with her friend caused her to change her vote to guilty. (Compare, Danks, supra, 32 Cal.4th at p. 310, fn. 14 [juror consistently voted for the death penalty before and after the misconduct].) Here, the nature of the misconduct and the surrounding circumstances do not rebut the presumption of prejudice and the judgment must be reversed.

II. Failure to Instruct on Duress

1. Facts

In the trial court, Huhn's attorney requested a duress instruction (CALJIC No. 4.40), arguing that Peretti and Handshoe's testimony established the defense. The trial court deferred ruling on the request until after Huhn rested his defense case and then rejected the instruction because the evidence did not establish grounds for the defense. The testimony elicited during trial revealed the following:

When Peretti first arrived at Handshoe's home, she observed Anderson "messing" with a number of guns. After Anderson and Handshoe discussed a possible burglary, Anderson asked Huhn if he would go with them and Huhn later indicated he would go shopping after the crime. Peretti described Huhn and Handshoe as nervous, but said that Anderson acted as if he had done this type of thing before. Before the trio left the home, Anderson pulled a gun from his pants, cocked it and said "let's do this right" or "let's do this fast." Peretti described this as a scary thing to witness and claimed that she, Huhn and Handshoe were scared. Anderson also stated "if they didn't do this right, that [Huhn] wouldn't come home to his baby."

Peretti told Huhn that she did not want him to go, but claimed that he made his own decision to go because they had been fighting. She could not remember any threatening behavior toward Huhn, but then agreed with counsel's statement that what was happening was threatening behavior. When Huhn returned after the murder, he told Peretti that he had to go along because they were scared and had been threatened. Additionally, after the murder Anderson pulled a gun on Huhn and Handshoe and told them that they would be next "if anyone found out about [the murder]." The couple discussed whether they should go to the police, but did not do so because Huhn was afraid.

At the time of the murder, Handshoe was using about one-half gram of methamphetamine every two days. He was unemployed and supported his drug habit by selling stolen property. Handshoe met Anderson through Huhn only a few days before the murder and admitted that he and Anderson had already burglarized one home and attempted to burglarize another. On the day of the murder, Anderson arrived at Handshoe's home with a bag of disguises and they discussed burglarizing another home that contained a safe. Handshoe claimed he did know where they would be going and that he went along with the plan because he was scared and to help out Huhn because Huhn had a baby on the way and needed money. Handshoe was not aware of any threats Anderson made toward him or Huhn to get them to participate in the crime, but claimed that he accompanied Anderson because he was afraid of the gun and getting hurt.

2. Analysis

Duress is a defense against criminal charges when the person charged "committed the act or made the omission charged under threats or menaces sufficient to show that [he] had reasonable cause to and did believe [his life] would be endangered if [he] refused." (Pen. Code,  26.) Although duress is not a defense to murder (People v. Anderson (2002) 28 Cal.4th 767, 780), it can provide a defense to murder on a felony-murder theory by negating the underlying felony. (Id. at p. 784.) "If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony." (Ibid.)

To be entitled to a duress instruction, the defendant must present substantial evidence of this defense. (People v. Wilson (2005) 36 Cal.4th 309, 331.) Substantial evidence is evidence sufficient to deserve the jury's consideration, not simply any evidence, however weak it might be. (Ibid.) A trial court may properly refuse to give the requested instruction if the defendant fails to offer evidence tending to support any element of the defense. (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777; see e.g., People v. Petznick (2003) 114 Cal.App.4th 663, 677-678.)

The immediacy of the threat or menace is central to the duress defense. Threats of future harm do not diminish criminal culpability. (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, judgment vacated on other grounds by Bacigalupo v. California (1992) 506 U.S. 802.) In order to establish the duress defense, the threat or menace "[must] be accompanied by a direct or implied demand that the defendant commit the criminal act charged." (People v. Steele (1988) 206 Cal.App.3d 703, 706.) The threat or menace must be that which would cause a reasonable person to fear that his life would be in immediate danger if he did not commit the crime. (CALJIC No. 4.40.) In addition, the defendant must actually have believed that his life was in immediate danger if he did not commit the crime. (Ibid.)

The evidence here is not substantial in supporting a jury instruction on duress. Anderson never verbally threatened Handshoe into committing the burglary or robbery and Handshoe never heard Anderson threaten Huhn or Peretti. According to Peretti, Anderson told Huhn that "if they didn't do this right, that [Huhn] wouldn't come home to his baby." To the extent that this statement might be interpreted as a threat, it would not support a duress defense which does not apply to a fear of future harm. (CALJIC No. 4.40.) Similarly, Anderson's statement to Handshoe and Huhn after the murder that they would be next "if anyone found out" does not support an inference that Anderson also threatened them before the crimes.

Although Handshoe and Peretti were scared by Anderson's handling of his gun, neither testified that they feared for their lives or that Anderson's menacing behavior coincided with a demand for Handshoe or Huhn to carry out the burglary plan. When counsel directly asked Handshoe whether he had a choice about accompanying Anderson, Handshoe answered that he did not know, even though he had given the question much thought. In fact, Peretti testified that when Anderson asked Huhn to participate, Huhn made his own decision to go. While Peretti also testified that after the murder Huhn claimed he went along because he was scared and had been threatened, there is no evidence as to the nature or immediacy of the alleged threats.

Put simply, there was no evidence that any threats implicit in Anderson's conduct were accompanied by a demand for Huhn to join the burglary plan or that Huhn joined the plan because of an immediate fear for his life. (CALJIC No. 4.40.) Without some evidence from which a jury could reasonably find these elements, the requested jury instruction was not warranted.

DISPOSITION

The judgment is reversed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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