McCONNELL, P. J.
David Olvera, Amy Nicole Hillrich (Nikki), and Emilio Pelayo Saldana, were jointly tried for the murder of John Hillrich, Nikki's husband.
After the People presented their case-in-chief, Nikki decided to testify. At that point, the trial court found Nikki's out-of-court statements were admissible against her codefendants under relevant rules of evidence and did not infringe on her codefendants' due process rights. Olvera and Saldana's jury proceeded to hear evidence about a conspiracy to kill John, as described by Nikki on several post-it notes and as Nikki had disclosed to her best friend. The juries convicted Nikki, Olvera, and Saldana of first degree murder (Pen. Code, § 187, subd. (a)) and found true an allegation that a principal was armed with a firearm during the commission of the murder (Pen. Code, § 12022, subd. (a)(1)).
On appeal, Olvera and Saldana challenge the admission of Nikki's incriminating statements as inadmissible hearsay that caused undue prejudice and an unfair trial. All defendants claim the prosecutor committed misconduct in her closing argument by misrepresenting the law regarding a defendant's presumed innocence. Nikki additionally argues the court improperly discharged a juror on the basis of financial hardship and erred in instructing her jury on CALCRIM No. 361, which permits a jury to decide whether a testifying defendant failed to explain or deny incriminating evidence and to consider that fact, if so.
We conclude the court did not err in admitting Nikki's out-of-court statements, and Olvera and Saldana received a fair trial. Nikki was a testifying witness who denied conspiring with anyone to kill her husband, and she was subject to cross-examination; her extrajudicial statements were prior inconsistent statements that could properly be considered as substantive evidence against Olvera and Saldana. (Evid. Code, §§ 770, 1235.)
Nikki and John were married and had two children. By the late 2000's, they no longer lived together but remained married, sharing custody of their children. In 2011,
John disapproved of Nikki's exposing the children to Olvera. In June, John and Nikki agreed she would not allow Olvera to be around the children. In the same time frame, Nikki frequently complained to her best friend at Braswell, Petra Baca, that she was sick and tired of John. Nikki told Baca several times, with increasing seriousness each time, that she wanted John killed. Baca relayed Nikki's statements to her boyfriend, Jason Mayer. To set up a trap, Mayer offered to kill Nikki's husband for $10,000, to which Baca responded that Nikki had said Olvera and Saldana would handle it.
The Friday night before John was murdered (August 12), Nikki violated her agreement with John by allowing Olvera and Saldana to visit her and the children at home. She then asked her daughter to lie about it. Nikki's daughter instead informed John of the visit, he became very upset, and he confronted Nikki on Sunday morning (August 14). John and Nikki were emotional and angry that weekend.
On August 14, Nikki texted Olvera, "Seriously David, if I'm gonna do this, you need to get with the program. I'm almost there. Shit." Nikki and Olvera continued to send each other text messages throughout the day. Nikki also texted Saldana, "You work tomorrow. Am too?" Saldana responded, "Nope. Day off."
On Monday, August 15, the day before John was murdered, Nikki exchanged dozens of text messages with Olvera, and the contents of the messages were suggestive of some plot against John. For example, Nikki texted John's morning movements and a timeline to Olvera, to which Olvera acknowledged receipt and instructed Nikki to erase the messages. When Olvera did not successfully make contact with John in a parking area that morning, he texted Nikki messages like, "Don't worry though" and "It's not over," and she replied, "Fuck" and "I know you will."
Around the same time Olvera was trying to contact John, Saldana made several calls to Nikki. Saldana's calls were handled by "tower 129," which was a cell tower located a quarter-mile to a half-mile away from John's work. John worked on Centrelake Drive in Ontario, California (Centrelake).
Later on August 15, Olvera queried Nikki via text messages regarding how to start "the car . . . BMW." John drove a BMW. Nikki responded for Olvera to press the brake while starting the car. She further texted, "I've driven it. If he sees you coming, he'll push the panic button. Push the unlock button on the remote to disable. I mean to silence. You copy?"
Also on August 15, Mayer reported to the sheriff's department that Nikki was planning to have her husband killed. Over the weekend, Baca had informed Mayer that something bad was going to happen. Mayer provided a deputy sheriff with Nikki's name and phone number, Olvera's name, and Saldana's name, as individuals potentially involved in the crime.
On Tuesday, August 16, during the 6:00 and 7:00 o'clock morning hours, Nikki texted greetings to both Olvera and Saldana. At 7:52 a.m., Olvera texted a picture of John's empty parking spot at Centrelake to Nikki. She responded, "Damn the bad luck," and Olvera replied, "Just a minor setback." Later that morning, John texted Nikki a reminder that he and the children were meeting a counselor at 3:00 p.m. in Riverside.
Shortly after 11:00 a.m. on August 16, Kristen Morales was at Olvera's house. She worked at Braswell and had been intimate with Olvera in the past. Morales saw a semi-automatic handgun on the coffee table at Olvera's house. When she questioned him about it, he said, "You never know." Morales also saw Saldana working on his car outside of Olvera's house. She returned to work at Braswell. At 11:44 a.m., Olvera texted Morales, asking if he could use her Ford F-250 truck at 1:00 p.m. The blue truck bore a large skeletal "Metal Militia" sticker on the left side and the license plate number 88878A1 ("F-250 truck"). Morales agreed, left her keys in the truck for him, and noticed at some point her truck was no longer where she had parked it. Morales did not get her truck back until after 3:00 p.m., at which point Olvera told her not to mention to anyone he had borrowed it.
At about 1:30 or 1:40 p.m., John's secretary returned from lunch and parked her car in the same Centrelake garage where John parked his BMW. Because all the parking spaces were reserved spots and ordinarily occupied by familiar vehicles, his secretary recognized an F-250 truck as being out of place. She went up to her office and spoke to John for about 15 minutes. He said he was leaving to pick up his children.
John was shot in the Centrelake parking garage shortly afterward. Surveillance cameras in the parking garage recorded videos of a man, believed to be Saldana, exit the passenger side of the F-250 truck, approach John's BMW, run back to the F-250 truck, and the truck leave the parking structure at 1:58 p.m. Morales believed Saldana was the man in the videos based on his posture, manner of walking, and clothes. Morales had prior opportunities to observe Saldana's posture and walking style, and she had seen what he was wearing earlier that day.
Prior to the truck's exiting the parking garage, multiple witnesses heard a series of gunshots go off and identified the F-250 truck as the only vehicle that left the parking garage immediately afterward. One witness, a retired military law enforcement officer, was standing outside and heard three shots in quick succession, a pause, and a couple more shots fired. Another witness, a special agent for the California Department of Transportation, used binoculars from his office to note the exact license plate number of Morales's F-250 truck as it left the premises.
A witness who worked on the second floor of the office building saw the F-250 truck as it was leaving the parking structure. She observed both the driver and passenger were Hispanic men. Olvera and Saldana are both Hispanic. The witness identified Olvera as the driver based in part on features of his face like his "bug eyes" and "round face." In response to reports of gunfire, law enforcement officers reached Centrelake a few minutes after 2:00 p.m.
John died of multiple gunshot wounds: two to his left upper arm, one to his back, and one to the left side of his head. The muzzle of the shooter's gun was about one to two feet from John's head based on the entry wound. John had significant financial assets that Nikki would share in or benefit from upon his death.
When officers arrested Olvera and Saldana the night of John's murder, the two were together at a gas station, having stopped to get gas. They appeared to be fleeing the vicinity because Olvera's car contained a suitcase and duffel bag packed with clothes. An officer informed Saldana he was being arrested for "that incident that you were involved in in Ontario earlier this afternoon," to which Saldana looked down at the ground and said, "Oh, okay." Olvera's right hand contained one unique particle of gunshot residue and Saldana's left hand contained two unique particles of gunshot residue. Officers determined that Olvera had stored an explosive device or ammunition in the glovebox of his car. Officers further found various other items tying the men to Nikki, including an envelope addressed to Nikki in Olvera's car, several pieces of Nikki's mail at Olvera's house, and a napkin at Saldana's house with the e-mail address josehillrich@yahoo.com written on it. John's actual e-mail address was johnhillrich@yahoo.com.
Officers found post-it notes in Nikki's purse, and she had written as follows on several of the notes:
Nikki had written the following on another post-it note: "John, I'm sorry it had to come to this. You pushed me to the limit. You just wouldn't mind your own business. You're not a man. I don't want our children to grow up to be like you. I am doing what I sincerely feel is best for the kids and I. I can't reason with you. You're a crazy bastard. You can't even see it. Rest in peace. I will take good care of them. You will be in a better place anyway. Love Nikki."
Olvera and Saldana contend the trial court erroneously permitted their jury to hear evidence of Nikki's incriminating out-of-court statements (1) written on the post-it notes and (2) to Baca regarding her wish to have John killed, which Baca relayed to Mayer and a police detective. Olvera and Saldana argue that admission of the evidence violated hearsay rules, was unduly prejudicial, and resulted in an unfair trial. Olvera and Saldana's claims are without merit.
In March 2015, defendants' joint trial commenced. None of the defendants had decided whether or not to testify at trial. Having learned the People wished to introduce evidence of the post-it notes against defendants, the court decided to empanel two juries—one for Nikki (the red jury) and one for Olvera and Saldana (the blue jury)—based on principles of fairness, due process, and section 352. The court discussed that Nikki's post-it notes contained statements implicating at least one of her codefendants in a conspiracy to commit murder. With two separate juries, the court observed that Nikki could be called by her codefendants to testify regarding the post-it notes because she would not have a right against self-incrimination before the blue jury.
The People proceeded to present their case-in-chief against the defendants. The red jury heard evidence of Nikki's out-of-court statements. After the People rested their case, Nikki decided she would testify. Olvera's counsel objected to the introduction of Nikki's testimony in front of the blue jury as a due process violation. The trial court discussed the issue as follows:
Saldana's counsel did not join in Olvera's objection to Nikki's testimony, stating that he wanted the blue jury to hear her testimony.
During her testimony, Nikki denied telling, hiring, or conspiring with anyone to kill her husband John. She testified she had a short "fling" with Olvera in 2011 and it was "not a serious relationship." She explained the circumstances of Olvera and Saldana's visit to her home on the Friday before John's murder. She attempted to provide innocuous explanations for her text messages and some of the statements in her post-it notes. Nikki admitted that Baca had been a close friend, but denied ever telling Baca that she wanted John killed. Nikki testified that she had no reason to hurt John.
Over defendants' objections, the court permitted the prosecutor to cross-examine Nikki in front of the blue jury with her statements in the post-it notes. The court found the post-it notes relevant and tended to show the existence of a murder conspiracy, analogizing the statements to a confession and declining to exclude them under section 352. Nevertheless, per the request of Olvera's counsel and with the prosecutor's agreement, the court admonished the jury that the post-it notes were not being offered for the truth of their contents as to Olvera and Saldana, but were being offered as evidence of Nikki's state of mind. The jury was subsequently instructed again to consider the post-it notes only against Nikki.
To rebut Nikki's testimony, the People called Baca, Detective David Rowe, and Mayer as witnesses. Baca testified she did not remember Nikki making any statements to her regarding her relationship with John or with respect to harming or killing John. Baca could not remember a single statement she had made to a police officer during an interview after John was shot. And although she admitted Mayer was her ex-boyfriend, Baca could not remember whether he was her boyfriend in 2011 or ever speaking to him about Nikki's statements.
Detective Rowe interviewed Baca after the shooting. The detective testified to Baca's statements to him during the interview, including the following: (1) Nikki had joked for months about John being killed; (2) Nikki had talked about having John killed and wanting him dead; (3) Nikki and John had argued a few days before he was shot, and Nikki said she was going to have John "taken care of"; and (4) Nikki had said Olvera was going to "take care" of John.
Mayer testified to the statements Baca relayed to him regarding Nikki's desire to have John killed, Mayer's "bait" offer to kill Nikki's husband, and Baca's response in late July 2011 that Nikki had already arranged for Olvera and Saldana to handle it.
During Detective Rowe's testimony, Olvera's counsel objected to evidence regarding Nikki's statements to Baca, which the trial court overruled on the ground that they were Baca's prior inconsistent statements. The court subsequently amplified its ruling, finding Baca was specifically examined about her statements to Detective Rowe and Mayer, she "was trying to be deceptive in her failure to recollect" her prior statements, and Baca was subject to recall, as required under sections 770 and 1235. The court also indicated it believed Nikki's statements were party admissions and/or made in furtherance of a conspiracy (§ 1223).
"The admission of multiple hearsay is permissible where each hearsay level falls within a hearsay exception." (People v. Williams (1997) 16 Cal.4th 153, 199, fn. 3, citing § 1201.) Sections 1201 and 1235, when read together, permit "admission of multiple hearsay where each hearsay level constitutes a prior inconsistent statement." (People v. Zapien (1993) 4 Cal.4th 929, 952 (Zapien) [involving multiple hearsay where each declarant testified at trial and made prior inconsistent statements].) As explained below, at each level Nikki's and Baca's extrajudicial statements were admissible as prior inconsistent statements.
"`A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in . . . sections 1235 and 770.'" (People v. Chism (2014) 58 Cal.4th 1266, 1294 (Chism), quoting People v. Johnson (1992) 3 Cal.4th 1183, 1219.)
Under section 352, a trial court may in its discretion exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. The "`"prejudice" referred to in section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."'" (People v. Bolin (1998) 18 Cal.4th 297, 320 (Bolin).) We review a trial court's rulings on the admissibility of evidence for abuse of discretion. (Chism, supra, 58 Cal.4th at p. 1291.)
Applying the above principles to this case, we conclude the trial court did not err in permitting both juries to hear evidence of Nikki's incriminating statements contained in the post-it notes and to Baca. Her statements were admissible under an exception to the hearsay rule, were not unduly prejudicial within the meaning of section 352, and could be fairly considered against Olvera and Saldana.
Regarding the post-it notes, Nikki testified before both juries she did not tell, hire, or conspire with anyone to kill her husband John, and she had a mere "fling" with Olvera. Her statements in the post-it notes were inconsistent with her testimony since they described her coordination with "guys" to kill John and that she was in love with Olvera, her "hero." Nikki was questioned regarding her statements in the post-it notes, and she was not excused from giving further testimony, thus fulfilling section 770. Even though the trial court admonished the jury to consider the post-it notes only against Nikki, the jury could have properly considered them as substantive evidence against Olvera and Saldana. (People v. Manson (1977) 71 Cal.App.3d 1, 31 ["Prior inconsistent statements of a witness are admissible as substantive evidence if the requirements of section 770 are complied with."].)
Regarding Nikki's statements to Baca, Baca was examined regarding each of the statements and asked whether she told Detective Rowe and Mayer about them. Baca's testimony at trial consisted largely of a series of "I don't remember" answers; she could not even remember the year Mayer had been her boyfriend. On this record, the trial court reasonably found Baca was deceitful in her inability to recall facts. "[A] deliberately evasive `I don't remember' constitutes an implied denial of the fact, which is thus materially inconsistent in effect with the prior statement, rendering the prior statement admissible under . . . section 1235." (People v. O'Quinn (1980) 109 Cal.App.3d 219, 224.) Also, Baca was not excused as a witness. Her prior inconsistent statements were admissible against Olvera and Saldana.
As to the second level of hearsay concerning what Nikki had told Baca, those statements were inconsistent with Nikki's trial testimony. At trial, Nikki unequivocally denied telling Baca about wanting to have John killed, a point on which Nikki was examined. In fact, Nikki testified she had no reason to hurt John. Nikki's extrajudicial statements, as told to Baca and then to Detective Rowe and Mayer, were admissible against Olvera and Saldana.
Furthermore, we conclude the court did not abuse its discretion in declining to exclude Nikki's out-of-court statements under section 352. The statements, alone and in combination with other evidence, tended to show defendants were planning to kill John. Defendants do not explain, nor do we independently see, how the statements "uniquely tend[] to evoke an emotional bias against defendant[s] as . . . individual[s] and which ha[ve] very little effect on the issues." (Bolin, supra, 18 Cal.4th at p. 320.) Rather, Nikki's statements directly incriminated her and her codefendants as John's killers. (Zapien, supra, 4 Cal.4th at p. 958 ["`The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.'"].)
Olvera and Saldana's arguments regarding general unfairness in allowing their jury to hear Nikki's extrajudicial statements appear to stem from the trial court's inclination, before Nikki decided to testify, to limit the presentation of the statements to the red jury. As the court stated though, it was initially concerned about the admission of extrajudicial incriminating statements against Olvera and Saldana if they could not cross-examine Nikki about her prior statements due to her invoking her privilege against self-incrimination. (See People v. Aranda (1965) 63 Cal.2d 518, 530-531; Bruton v. United States (1968) 391 U.S. 123, 135-136.) The court's initial analysis was premised on principles of fairness and due process. Once Nikki decided to testify at trial, however, the court found there was no longer any reason to exclude the evidence. "A codefendant's extrajudicial statement need not be excluded when the codefendant testifies and is available for cross-examination." (People v. Hoyos (2007) 41 Cal.4th 872, 896; People v. Boyd (1990) 222 Cal.App.3d 541, 562.)
Moreover, there is a statutory preference for joint trials of jointly charged defendants. (Pen. Code, § 1098.) "[N]o denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution." (People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104.) Nikki, Olvera, and Saldana each possessed the right to testify at trial, in which case, his or her codefendants could expect the People to introduce rebuttal evidence of prior inconsistent statements, if any. There was no violation of due process stemming from the fact that rebuttal evidence against Nikki tended to show her codefendants' guilt. (E.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 68 [involving a joint trial where the prosecution rebutted defendant Coffman's testimony with her prior inconsistent statements that she knew codefendant Marlow would kill the victim].) "The order of proof rests largely in the sound discretion of the trial court, and the fact that the evidence in question might have tended to support the prosecution's case-in-chief does not make it improper rebuttal." (Ibid.)
We are satisfied that Olvera and Saldana received a fair trial consistent with due process, and they suffered no violation of their constitutional rights. The trial court could not anticipate at the outset that Nikki would testify, and it proceeded on the assumption she would not. Because Nikki's extrajudicial statements incriminated Olvera and Saldana much like a confession, the court believed the two men should have an opportunity to cross-examine her or else have evidence of her extrajudicial statements excluded against them. However, once Nikki decided to testify, she became available for cross-examination, and her extrajudicial statements could be fairly considered against Olvera and Saldana as in other joint trials in which a defendant testifies and is available for cross-examination. The trial court did not abuse its discretion.
After all parties rested, the prosecutor began her closing argument. She discussed the evidence against each defendant in significant detail. She concluded her argument as to Olvera and Saldana by stating as follows: "At the beginning of this trial . . . [defendants] were presumed innocent, but they are innocent no longer. The People have carried our burden of proof and we ask that you find them both guilty. Thank you." The prosecutor made the same kind of remarks during her closing argument against Nikki.
Defendants contend the prosecutor's "innocent no longer" comments misrepresented the law regarding a defendant's presumption of innocence. Citing People v. Dowdell (2014) 227 Cal.App.4th 1388 (Dowdell), they argue the prosecutor's statement suggested defendants were no longer presumed innocent during jury deliberations, when in fact defendants are presumed innocent until the jury reaches a guilty verdict. We are not persuaded by defendants' arguments.
Preliminarily, defendants' claims are forfeited. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) Here, defendants failed to object to the challenged statements by the prosecutor and thus forfeited their claims. Anticipating forfeiture, each defendant contends his or her counsel was ineffective for failing to object. To prevail on their claims, defendants must show that counsel's performances fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 688.) In evaluating defendants' claims, we "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." (Id. at p. 689.)
Defendants have not established claims of ineffective assistance of counsel because the prosecutor did not misrepresent the law. (People v. Price (1991) 1 Cal.4th 324, 387 [counsel does not render ineffective assistance by failing to make objections that counsel reasonably determines would be futile in light of existing precedent]; see People v. Goldberg (1984) 161 Cal.App.3d 170, 189 (Goldberg).) In Goldberg, at the end of summarizing his argument, the prosecutor stated:
The court found the prosecutor "essentially restated, albeit in a rhetorical manner, the law as reflected in Penal Code section 1096." (Ibid.) Penal Code section 1096 provides that a "defendant in a criminal action is presumed to be innocent until the contrary is proved." Although a defendant's presumption of innocence continues until the jury renders its guilty verdict, "it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt." (Goldberg, supra, 161 Cal.App.3d at pp. 189-190.) The trial court instructed the jury on a defendant's presumed innocence as embodied in CALJIC No. 2.90, the precursor to CALCRIM No. 220. (Goldberg, at p. 189.) Thus, the prosecutor's statement in Goldberg sufficiently preserved the presumption of innocence up and until unanimous agreement of guilt was reached by the jury. (Id. at p. 190.)
In contrast, in Dowdell, the prosecutor declared: "You have the evidence. The presumption of innocence is over." (Dowdell, supra, 227 Cal.App.4th at p. 1407.) Later, the prosecutor again emphasized that the presumption of innocence was "over." (Ibid.) The court concluded the prosecutor misrepresented the law, but the claim was forfeited. (Id. at p. 1408; see also People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 [error to tell jury that presumption of innocence is in place "only when the charges are read" and that the "presumption is gone" thereafter].)
Here, the prosecutor's statement was very similar to the one approved in Goldberg, made after an extensive recitation of the evidence, and in conjunction with her argument that the People had carried its burden of proof. Likewise, the court instructed the jury that a "defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. . . . Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty." (CALCRIM No. 220.) The prosecutor appeared to be merely arguing that, in her view of the evidence, the jury should return a guilty finding because the People carried its burden of proof. (People v. Booker (2011) 51 Cal.4th 141, 185 ["the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented"]; People v. Panah (2005) 35 Cal.4th 395, 463 [prosecutor's references to the presumption of innocence were made in connection with his general point that, in his view, the evidence, to which he had just referred at length, proved defendant's guilt beyond a reasonable doubt].) Defendants have failed to show their attorneys' failure to object to the prosecutor's statements constituted ineffective assistance of counsel.
Nikki argues the court abused its discretion in dismissing a juror on the basis of financial hardship. The claim is meritless.
After Juror No. 9 was sworn as a juror, she learned that her employer's jury service policy was to pay its employees for only 10 days of service. The estimated length of trial was 60 days.
In open court, Judge Uhler questioned Juror No. 9, who explained that after exhausting the remainder of her jury service days, she would have to use her vacation days of which she only had 10 left and then go on unpaid leave. The juror was a single mother of two children ages three and 13, received no child support from the fathers, and needed her vacation time to stay home with her three-year-old daughter when her daughter got sick. Juror No. 9 stated that it would be an undue financial hardship for her to remain on the jury, she would be "extremely stressed" if required to take an unpaid leave, and she wished to be excused from further service. The court found that it was an undue financial hardship for Juror No. 9 to continue her service, excused her, and selected an alternate juror.
Penal Code section 1089 authorizes a trial court to discharge a juror upon a showing of good cause.
Here, good cause existed for the court to discharge Juror No. 9. Based on the estimated length of trial, Juror No. 9 would have exhausted her paid service days as well as her vacation time, forcing her to serve without compensation and leaving her without vacation days to care for a sick child. She stated those circumstances would make her "extremely stressed," and she wished to be excused. Juror No. 9 was a single parent of a young child, and the court could reasonably foresee that Juror No. 9's ability to stay continuously focused and properly deliberate would be impacted. On the facts of this case, discharging Juror No. 9 from further service was not an abuse of discretion.
Nikki argues her jury was erroneously instructed on CALCRIM No. 361 because she did not fail to explain, or claim to lack knowledge regarding, any incriminating evidence against her. The jury was instructed as follows:
CALCRIM No. 361 "applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (People v. Cortez (2016) 63 Cal.4th 101, 117 (Cortez).) "The instruction acknowledges to the jury the `reasonable inferences that may flow from silence.'" (Ibid.) The defendant in Cortez was convicted of murder and attempted murder for her role in driving a car used by the shooter and his companion in a gang encounter. The defendant testified and claimed to be an innocent participant. (Id. at p. 109.) In so doing, the defendant said she did not know about multiple important details regarding the shooting when she could reasonably be expected to know the details. (Id. at p. 121.) Under the circumstances, our Supreme Court approved the giving of CALCRIM No. 361. (Cortez, at p. 122.)
We conclude the court properly instructed the jury on CALCRIM No. 361 because Nikki failed to explain all of the statements in her post-it notes when she could reasonably have been expected to do so. She admittedly wrote the notes, which contained her thoughts regarding her husband and lover. Nikki's trial counsel acknowledged as much by arguing in closing that Nikki "can't explain every statement that's in there," referring to the post-it notes, because Nikki had written them when she was drunk after attending a barbeque, weeks before John's murder (and not an hour prior to his murder). Although Nikki testified she was "just ranting [and] venting" when writing some of the statements, she also testified she did not know why she had written a few of the statements, and she failed to address some altogether.
For example, within her "John Hillrich has to die" post-it note, she wrote, "I will be a good Christian parent, employee and friend." When asked by her counsel about the statement, Nikki answered, "I don't know why I wrote that." Nikki also wrote, "Please focus and get [John]! We have about one hour left." The following exchange occurred between her and the prosecutor:
Nikki failed to explain a number of other statements in her post-it notes, such as why she would be "forever grateful" to Olvera, what he would be doing to earn a "special place" in her heart, and why she knew there would be "rough times ahead." These were specific, significant statements "`peculiarly within [her] knowledge'" to explain. (Cortez, supra, 63 Cal.4th at p. 117.) Giving CALCRIM No. 361 was not error.
Moreover, in light of Nikki's acknowledging to the jury she could not explain all of her statements, she was not harmed by the giving of CALCRIM No. 361. "CALCRIM No. 361 does not direct the jury to draw an adverse inference. It instructs the jury that failure to explain or deny alone is not a sufficient basis upon which to infer guilt, and it highlights the prosecution's burden to prove guilt beyond a reasonable doubt. [Citations.] Ultimately, the instruction leaves the `meaning and importance' of the failure to explain or deny in the jurors' hands." (People v. Vega (2015) 236 Cal.App.4th 484, 502-503; see also People v. Lamer (2003) 110 Cal.App.4th 1463, 1472 [applying standard under People v. Watson (1956) 46 Cal.2d 818, 836, and concluding harmless error from giving instruction based partially on its conditional language].) The court did not commit prejudicial error.
The judgments are affirmed.
O'ROURKE, J. and AARON, J., concurs.
Section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
