P. v. Carr

Filed 6/14/06 P. v. Carr CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed.

Ryan Carr (Ryan)[1] appeals his conviction by a jury of corporal injury to a spouse. (Pen. Code,[2] § 273.5, subd. (a).) He contends the trial court erred by: denying access to the victim's employment records for impeachment, admitting prior acts of domestic violence, and denying a motion for a mistrial based on jury misconduct. We affirm the judgment.

FACTS

Ryan met Lourdes Carr (Lourdes) in June 2002, and they married the following September. Lourdes is 4 feet 11 inches tall and weighs 118 pounds. Ryan is approximately 6 feet 2 inches tall and weighs about 270 pounds.

Prior Domestic Violence Against Lourdes

Lourdes testified that Ryan was physically violent a number of times. One time he threw her toward the bed, causing her head to hit the headboard and then, while she was lying on the floor, Ryan put his foot on her face and said, "Bitch, I'll kill you for fucking my life." Around Christmas 2003, after Ryan stayed out all night at a party, Lourdes became angry, started packing a bag and suggested they divorce. When she tried to leave, he grabbed the bag off her arm and pulled her inside the apartment. He pushed her against a wall, then shoved her onto the bed and had "rough sex" with her.

In 2004, Ryan argued with Lourdes while her niece was in the apartment. After the niece left, Ryan threw Lourdes's clothes outside the door, called her names, pulled her back inside when she tried to retrieve her clothes, threw her on the floor and said, "Bitch, do as I say. You are not going no fucking [any]where." Later that same day, he picked her up and threw her head first into the wall, causing a hole in the wall, and then threatened to stomp on her face. As she was begging him not to, he said, "Bitch, I'll kill you right now." He walked away, saying, "It's good for you. I wish you get crippled, you're crazy anyway." During this last incident, Lourdes picked up a knife and stabbed a stereo speaker.

Charged Offense

On July 30, 2004, Lourdes helped at her niece's bakery in National City. Ryan called during the late afternoon, demanding to know why Lourdes was there and accusing Lourdes of "whoring around." He complained she did not contribute to the household expenses. After the phone call, Lourdes asked her niece for money to give to Ryan. Her niece gave Lourdes $300.

At about 10:00 p.m., Lourdes drove home and parked on the street near her apartment complex. She saw Ryan in a park across the street. She walked over to him. He was mad and repeatedly asked if she was keeping money from him. She gave him the $300 from her niece. She tried to calm him down, telling him she would get more money from her niece. He made loud negative comments about her family. When she said, "That's enough," he grabbed her arm and dragged her toward the apartment. She broke away and went toward her car, but when she was in the middle of the street, Ryan "karate chopped" her on the back of her neck and she fell to her knees. He then dragged her across the street. She screamed for help. He told her, "Shut the fuck up, bitch, I'll kill you." When they reached the curb, she tried to hold onto a car but he picked her up and dropped her to the ground. Her rib cage hit the curb. He then picked her up and twice threw or dropped her headfirst on an electrical box, resulting in a bloody nose, a lump on her head, and dizziness.

Several neighbors heard Lourdes screaming for help. One neighbor saw Ryan manhandling and dragging Lourdes in the middle of the street. Another neighbor saw Ryan push Lourdes, whom he mistook for a little girl, over the electrical box and then start pulling her. Lourdes was crying and "wasn't walking too well, or at all actually." The neighbor confronted Ryan and asked him what he was doing. Ryan repeated several times, "You don't understand," and then said, "This is my wife." The neighbor said, "[T]hat's probably a good reason you shouldn't be throwing her around." More neighbors came outside and eventually Ryan dropped Lourdes to the ground. Lourdes was crying and saying "he's going to kill me." She "was obviously injured" and appeared disoriented. One neighbor "kind of picked [Lourdes] up," and took Lourdes to her home to help her clean up. Lourdes told the neighbor she had finished working, had some money, met her husband at the park across the street and he started to mistreat her when she did not give him all the money.

Prior Acts of Domestic Violence Against a Former Girlfriend

Latasha Bradford dated Ryan from 1999 to September 2001. She is 5 feet 3 inches tall and weighs 110 to 115 pounds. During an argument in 2000, Ryan pushed her neck up against the metal rail of a bed. She believed he was only trying to scare her and he succeeded in doing so. At a different time, Ryan tore her gown, choked her, and pushed her into a closet door, spraining her ankle. In August 2001, she argued with Ryan about using her phone and accused him of calling other women from her phone. As she went out the front door, Ryan knocked her glasses off her face and then grabbed her. She scratched him. The police were called and both were arrested.

Defense

Ryan did not testify. He argued that Lourdes was not credible and had falsely accused him of domestic violence because she was vindictive and wanted to ruin his life.

Ryan brought out inconsistencies in Lourdes's version of what occurred and impeached her credibility with evidence that she had been fired for falsifying records. He also presented the testimony of the apartment manager who stated that sometime after July 30, 2004, Lourdes visited the apartment manager, wanting to tell her about how Ryan abused her but the apartment manager cut her off because she disliked gossip. On cross-examination, the apartment manager testified Ryan had changed the locks on the apartment and Lourdes was seeking the apartment manager's permission to enter the apartment to show someone where Ryan had "put her head through the wall."

Ryan's supervisor testified that after the incident Lourdes called him repeatedly and left three or four messages on his voice mail. When he finally talked with her, she told him her side of what had happened. She said Ryan was a very violent man, had a history of violence, that she had been "beat[en] up pretty bad and wanted to know if Ryan was going to lose his job." "Diplomatically," the supervisor cut her off, stated they needed to "let the system work" and indicated he preferred not to be involved. He did not make any recommendations to fire Ryan. On cross-examination, the supervisor stated he had accompanied Ryan when he turned himself into the police.

DISCUSSION

I

Lourdes's Employment Records

Ryan contends "the trial court's order denying [his] request to use Lourdes Carr's employment records to impeach her at trial violated [his] constitutional right to confront and cross[-]examine the witnesses against him and his right to due process of law." (Some capitalization and bold text emphasis omitted.)

Before trial, Ryan sought Lourdes's employment records from Antelope Valley Hospital. The prosecutor moved to quash Ryan's subpoena duces tecum. At the hearing on the motion, Ryan stated he was seeking information to impeach Lourdes's truthfulness and veracity. Specifically, he believed her personnel file contained information about two sexual harassment incidents: one where Lourdes accused someone else of sexual harassment, and the second where Lourdes was accused of sexual harassment. He believed she had lied during those incidents. Ryan requested the personnel file be turned over to the parties for review or, alternatively, that the court conduct an in camera review of the records to determine if there was any relevant information.

The court conducted an in camera review of the records.[3] The court revealed two items. The first involved Lourdes's complaint of sexual harassment. After an investigation was conducted, a finding was made "that there was not probable cause to

proceed on that complaint." The court stated this finding did not "mean anybody was lying"; "[i]t [was] simply a he-said/she said circumstance at work." The court found this incident was not relevant to the case nor would it assist the defense.

The second incident involved a complaint filed against Lourdes. A committee found that Lourdes, in contravention of the company's grievance procedures, had talked to a person who had complained about her, and "trie[d] to cover it up or perhaps butter it up and turn[ed] something in as a document that's actually not all true." The company fired Lourdes, in part, because she had falsified a document. The court found this incident was relevant and could be used for impeachment but did not release the personnel records because the findings were made by a committee and "there isn't anyone specifically to call who wasn't at least partially relying on hearsay."

At trial Lourdes denied she had been fired for falsifying a document. After an unreported sidebar conference, the court instructed the jury as follows:

"Ladies and Gentlemen, it is unusual this would happen, but I'm going to tell you, I have examined the documents in question from the hospital and she was fired at least partially for falsifying a document to her employer in connection with an employment dispute perhaps with another employee. That is what those documents say. So you are so instructed as a fact. All right."

During closing argument, defense counsel argued:

"Lying is not hard for Mrs. Carr. And I say that to you because you witnessed it yourselves. . . . [Y]ou know that she lied and you were here for it and you witnessed it yourself. I asked her plain as day was she fired from that job and was she fired at that job for lying. In October 2002, Mrs. Carr falsified some documents. She lied and she was fired for it from Antelope Valley Hospital. And when I asked her about it, she said no. She said that wasn't true. And the judge had to stop the entire proceedings and tell you that in fact it was true. And that he reviewed the documents that in fact show[] that it was true. . . ."

Ryan had a constitutional right to confront and cross-examine witnesses against him. (Davis v. Alaska (1974) 415 U.S. 308, 315 (Davis).) However, that right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892.) "The confrontation clause ' "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." ' " (People v. Ducu (1991) 226 Cal.App.3d 1412, 1415, italics omitted.) "Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 53.) Further, reversal is not required even when the confrontation right is violated where the error is harmless beyond a reasonable doubt based on the following factors: "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)

"Documents and records in the possession of nonparty witnesses and government agencies other than agents or employees of the prosecutor are obtainable by subpoena duces tecum. [Citation.] A criminal defendant has a right to discovery by a subpoena duces tecum of third party records on a showing of good cause--that is, specific facts justifying discovery." (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318; § 1326; People v. Hammon (1997) 15 Cal.4th 1117, 1128.) The defendant must show " 'the requested information will facilitate the ascertainment of the facts and a fair trial.' " (People v. Superior Court (Barrett), at p. 1316.) Under the subpoena duces tecum procedure contained in section 1326, when a criminal defendant has requested records of a nonparty, "the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (§ 1326, subd. (c).) If the records are privileged, the trial court is not required at the pretrial stage of the proceedings to review or grant discovery of privileged information in the hands of a third party, but may later review records and disclose information at trial if necessary to preserve the defendant's right to confrontation. (People v. Hammon, supra, at p. 1127; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 30, fn. 6.)

Lourdes had a constitutional right to privacy in her personnel files. (Cal. Const. art. 1, § 1; San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th 1083, 1097.) " 'The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is " 'the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.' " ' " (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345.) "Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed." (Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10; San Diego Trolley v. Superior Court, at p. 1097.)

Since Lourdes had a privacy right in her personnel records, the court acted properly in denying Ryan's pretrial request for discovery of all her records. Moreover, the court here did disclose to Ryan two matters from her personnel file: (1) the sexual harassment claim, and (2) the falsification of a document leading to termination.

Ryan argues he was prejudiced because he was not permitted discovery of details from Lourdes's personnel records. He argues his case is "closely analogous" to Davis, supra, 415 U.S. 308. We disagree.

In Davis, a safe stolen in a burglary was found near a juvenile's home. The juvenile was a key witness in the prosecution of two defendants. The juvenile had told the police he had seen two men with a car where the safe was later found and from police mug shots identified one of the defendants as a man he had seen with the car. The juvenile was then on probation for burglarizing two cabins. The prosecutor sought a protective order against disclosure of the juvenile's probation status and burglary adjudications on the basis that juvenile records are confidential. Defense counsel opposed the order, explaining he did not plan to use the juvenile adjudication to impeach the witness's character as a truthful person but to show that at the time the juvenile was identifying men involved in the burglary; he was on probation for burglary and, arguably, could have made "a hasty or faulty identification . . . to shift suspicion away from himself"; he might have been subject to undue police pressure; and he might have made his identifications to avoid having his probation revoked. (Davis, supra, 415 U.S. at pp. 310-311.) The trial court granted the protective order. The United States Supreme Court reversed. The Supreme Court stated, "[T]he jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the juvenile's] testimony which provided 'a crucial link in the proof . . . of petitioner's act.' " (Id. at p. 317.) The Supreme Court rejected the Alaska court's conclusion the cross-examination that occurred was sufficient to develop the issue of the juvenile's bias, explaining:

"On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a 'rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which ' "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." [Citation.]' " (Davis, supra, 415 U.S. 308, 318.)

Ryan argues, like Davis, Lourdes was a crucial prosecution witness, and he was "entitled to fully cross examine her, including exposure of her motivation in testifying and to show the existence of possible bias and prejudice on her part." He asserts the information that was disclosed about Lourdes's personnel records "was not adequate to develop the issue of [Lourdes's] bias before the jury."

Davis is readily distinguishable. First, Davis does not stand for the proposition that a confidential file should be fully disclosed to a criminal defendant. In Davis, the issue was whether the defense should be allowed to impeach a witness with his probation status and burglary adjudications, not whether the defendant was entitled to discovery of an entire juvenile file. Second, unlike Davis, Ryan did not seek information showing Lourdes was biased or prejudiced -- he sought information to impeach her character for truthfulness.

Finally, even if the court erred in failing to disclose further details from Lourdes's file, we would not reverse as it is clear beyond a reasonable doubt that the information would not have aided the defense. The impeachment in this case was strengthened by the court's instruction to the jury. Defense counsel, recognizing this, emphasized during closing argument that when Lourdes denied falsifying the document, "the judge had to stop the entire proceedings and tell you that in fact it was true. And that he reviewed the documents that in fact show[] that it was true. . . ." The impeachment evidence would not have been made stronger by the addition of further details or by being presented through the testimony of hospital personnel. Further, Ryan's guilt was supported by overwhelming evidence and was not dependent on Lourdes's testimony. Several people heard Lourdes screaming for help, saw part of the confrontation between her and Ryan, and observed that Lourdes was obviously injured. Ryan presented no evidence showing Lourdes had inflicted these injuries on herself or that the injuries resulted from an accident.[4]

II

In Camera Review of Lourdes's Personnel Records by the Court

Ryan contends we should conduct an in camera review of Lourdes's personnel records "to determine whether the trial court abused its discretion in refusing to provide the materials to [him]." Such a review, however, is unnecessary.

First, it is unnecessary to review the file for details of the incident involving the falsification of the document. As we explained in part I, what was relevant was the falsification, not the details, and the impeachment value of the evidence would not have been strengthened had it been presented by hospital personnel.

Second, it is unnecessary to review the file because, even presuming it is proper to disclose collateral information relevant only to a victim's character for truthfulness, there is no reasonable possibility that anything more damaging would be located in her file. Within the context of Ryan's request, the best case scenario for impeachment evidence would be exactly what was disclosed in this case, that is, deceitful conduct leading to the serious consequence of being fired.

Third, as we noted in part I, there was overwhelming evidence of Ryan's guilt. There is not the remotest possibility that further details of the falsification or use of another collateral incident (that necessarily would have involved less serious consequences than being fired) would have resulted in Ryan's acquittal.

Finally, it must be emphasized that neither Lourdes's employment history nor job performance was at issue.

We believe a crime victim should not lose the confidentiality of her personnel file simply because she is the victim of a crime and/or a witness who will be testifying against a criminal defendant and therefore her credibility will be judged. (Compare Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295 [the victim "did not lose her right to privacy in her mental health records because she charged [the defendant] with sexual battery"].) We believe the constitutional right of privacy in a personnel file, as a rule, should be maintained by the courts. To obtain an in camera review and possible disclosure of information from a victim (or witness's) personnel file, a defendant should be required to make some showing that the personnel file contains relevant, material information. The defendant would be entitled to an in camera review if the information is directly relevant to the defense as when the victim's on-the-job conduct vis-à-vis the defendant is at issue. Arguably, the defendant would also be entitled to an in camera review if he or she makes a showing the personnel file likely contains information demonstrating the victim's bias or prejudice against the defendant, a circumstance unlikely to exist unless the defendant and victim had some interaction occurring within the context of the victim's employment. A criminal defendant should not be able to breach the confidentiality of a victim's personnel file -- including requiring an in camera review by the court -- simply on the basis the victim will be testifying.

III

Admission of Prior Domestic Violence

Carr contends the trial court abused its discretion by admitting prior acts of domestic violence under Evidence Code sections 1101 and 1109. He contends the court should have excluded the evidence under Evidence Code section 352.

Evidence Code section 1101, subdivision (b) authorizes the court to admit prior acts of the defendant if relevant to prove something other than the defendant's propensity to commit a crime, such as motive, intent, or identity. Evidence Code section 1109 authorizes the court to admit prior acts of domestic violence when the defendant is charged with domestic violence to show the defendant has a propensity to commit domestic violence. Evidence admissible under either Evidence Code section 1101, subdivision (b) or section 1109 is subject to exclusion under Evidence Code section 352 if the probative value of the evidence is outweighed by a danger of undue prejudice. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1095.)

"It is important to keep in mind what the concept of 'undue prejudice' means in the context of [Evidence Code] section 352. ' "Prejudice" as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. . . . " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.]' " (People v. Branch (2001) 91 Cal.App.4th 274, 286, italics omitted.)

In determining whether to exclude propensity evidence, courts consider "such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.)

Here, the prior acts of domestic violence testified to by Lourdes and Fenton had significant probative value in showing Ryan had a propensity to commit domestic violence. They were also relevant to show Lourdes's injuries were not due to an accidental fall but due to domestic violence. None of the acts were remote, rather they showed Ryan engaged in a continuous course of domestic violence from 2000 to the time of the charged offense in 2004. The number of domestic violence acts tended to strengthen the inference, permissible under Evidence Code section 1109, that Ryan was a person who had a propensity to commit domestic violence. The prior acts did not involve complicated facts that were likely to mislead, confuse or distract the jury. Nor were any of the prior acts particularly inflammatory, particularly relative to the charged offense, which involved more severe violence and the infliction of more serious injuries. Finally, as we noted in part I, infra, there was overwhelming evidence of Ryan's guilt. There is no reasonable probability the jury convicted Ryan based on the prior acts of domestic violence rather than on the evidence showing he committed the charged offense.

IV

Jury Misconduct

Ryan contends the court erred in failing to grant his motion for a new trial based on jury misconduct.

Jury deliberations began on the morning of February 9. During the afternoon, the jury sent the court several notes, which are not at issue here. The next morning at 9:15, the court clerk informed the court that apparently two of the jurors had been talking in the hallway to a defense attorney unrelated to this case. The court directed the clerk to inform counsel of the situation and to tell counsel to return to the courtroom. Meanwhile, the jury sent the court a note indicating one juror was disregarding the instructions and was insisting on voting not guilty because he did not want to be responsible for the defendant going to jail. While the court was in session with counsel, another note was delivered to the court, asking whether a juror committed misconduct by considering the possible sentence that might be imposed or by insisting that despite the evidence presented in court and "[n]o matter what anybody says including the judge, [jurors] all have a choice." The jury foreperson expressed frustrations about the deliberations.

The court then inquired of the jury foreperson about the conversation that had occurred between the defense attorney and the two jurors. The jury foreperson indicated he did not participate in or witness the conversation. The court, in the presence of counsel and Ryan, then talked to the attorney who had been talking with the jurors. The attorney indicated she had talked with one juror about how attorneys could be friends even if they were on opposite sides, that she usually liked having jury trials but had recently had a bench trial, which she had enjoyed. At this point, another juror asked what happens when the jurors do not agree and if that was "the end of it right there." She responded, "No," explaining sometimes there were hung juries, sometimes acquittals, and sometimes retrials.

As soon as the attorney finished her explanation, the court received a note from the jury stating it had reached a verdict. It was then 10:00 a.m. The court admonished the attorney about speaking with jurors. The court asked the attorney to remain in the courtroom while it called in the jury. The court, after taking the verdict from the jury and then individually polling each juror, asked which jurors had talked with the attorney. The court asked the two jurors who had spoken with the attorney if anything during the conversation "had any affect at all." Both jurors stated it had no impact. The court then excused the jury.

Later that afternoon, the hold-out juror spoke with the court. He expressed regrets about having changed his vote to guilty, explained why he had changed his mind, and stated what he thought were instances of juror misconduct, none of which involved the conversation with the attorney.

In deciding the motion for a new trial, the court stated the attorney indicated the conversation had been limited to what happens when there is a hung jury, the two jurors had stated it did not impact their decision, and the conversation did not involve the hold-out juror. The court concluded there was "no evidence or inference that the communication between the juror and [the attorney] influenced any of the jurors in any way or had any connection with the question of conviction or acquittal."

"An accused has a constitutional right to a trial by an impartial jury. (U.S. Const., amends. VI and XIV; Cal. Const., art. I, § 16 . . . .) An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it." ' " (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) A defendant is "entitled to be tried by 12, not 11, impartial and unprejudiced jurors. 'Because a defendant charged with [a] crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.' " (People v. Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

"Juror misconduct involving the receipt of extraneous information about a party or the case that was not part of the evidence received at trial, creates a presumption that the defendant was prejudiced by the evidence and may establish juror bias." (People v. Ramos (2004) 34 Cal.4th 494, 519.) A "[d]efendant may establish bias if (1) the extraneous material, judged objectively, 'is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror' [citation] or (2) from the nature of the misconduct and surrounding circumstances, it is substantially likely a juror 'was actually biased' against the defendant. [Citation.] Because it is impossible to shield jurors from every contact that may influence their vote, courts tolerate some imperfection short of actual bias." (Ibid.) A presumption of prejudice is rebutted if the entire record in the case and the surrounding circumstances show no reasonable probability of prejudice, that is, no substantial likelihood that any jury was actually biased against the defendant. (People v. Stewart (2004) 33 Cal.4th 425, 510.)

"An appellate court will accept the trial court's determinations and findings on questions of historical fact if they are supported by substantial evidence." (People v. Ramos, supra, 34 Cal.4th at p. 520.)

Ryan contends there is a substantial likelihood that the information from the attorney biased the jury against him. His claim is solely based on the timing between the attorney's conversation, occurring before 9:15 a.m., and the jury's return of a unanimous verdict, occurring at 10:00 a.m, without any intervening instruction or comment from the trial court. Ryan concludes, based on the "critical" timing of the attorney's information, that it was "highly likely that the jurors used this information to persuade other jurors, including the hold[-]out juror, to find [defendant] guilty." Not only is this argument based solely on speculation, it is also contradicted by the record.

The two jurors who talked with the attorney stated the conversation had no impact on the deliberations. No evidence was presented to the contrary and the trial court was entitled to believe these jurors. Further, while the record is usually silent as to a juror's deliberative process because such evidence is generally inadmissible to impeach a verdict (see Evid. Code, § 1150), in this case the lone hold-out juror, experiencing a change of heart about voting guilty, provided a detailed explanation to the court about why he changed his vote. Nothing in his explanation even remotely touched upon the attorney's comments.

The trial court properly denied Ryan's motion for a new trial based on juror misconduct.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.

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[1] For the sake of convenience, we refer to Ryan Carr and his wife by their first names. We intend no disrespect.

[2] All statutory references are to the Penal Code unless indicated otherwise.

[3] While the trial court extensively discussed Pitchess v. Superior Court (1974) 11 Cal.3d 531, we fail to see its relevance.

[4] Ryan does not address any argument to the sexual harassment incident contained in Lourdes's personnel files, which the court excluded because it had minimal value to the defense because it was a "he said/she said" situation and did not establish Lourdes had lied. Presentation of the sexual harassment incident could have involved a mini-trial on whether Lourdes's complaint was false and an undue consumption of time on a clearly collateral matter. We would not find an abuse of discretion in excluding such evidence. (See Evid. Code, § 352.)