WILLHITE, Acting P. J.
The People charged defendant Robert Gonzales with the first degree murder of Christopher Ash (Pen. Code, § 187, subd. (a)),
In this appeal, defendant raises two contentions. The first is that the evidence is insufficient to sustain his conviction for second degree murder. The second is that the trial court erred when it denied his motion for a new trial based upon a claim of juror misconduct. We find no merit to either contention and therefore affirm the judgment.
Defendant, among others, was convicted of Ash's murder. Ash was a 204th Street gang member who was killed because fellow gang members believed he was a "snitch" regarding the murder of Cheryl Green (Green) committed by 204th Street member Jonathan Fajardo. In separate proceedings, Fajardo, Daniel Aguilar and Raul Silva were also convicted of Ash's murder.
The Green murder occurred during the afternoon of December 15, 2006, when Fajardo fired on a group of African Americans gathered in the driveway of a home in Los Angeles. Ernesto Alcarez, a member of the 204th Street gang, acted as lookout during the shooting. Fajardo killed 14-year-old Green and wounded three other individuals.
As part of the investigation of Green's murder, the police executed search warrants on December 21, 2006 at eight residences of individuals connected to the 204th Street gang. Pursuant to warrant, Ash's apartment was searched. During that search, the police escorted Ash and seven other individuals, including Aguilar, Alcarez, Fajardo and Jose Covarrubias, out of Ash's apartment. The police arrested Alcarez and took Ash and Aguilar into custody for questioning but later released the two men.
Covarrubias, a member of the 204th Street gang and an accomplice in Ash's killing, was the key prosecution witness at defendant's trial.
Covarrubias testified to the following sequence of events. After the police had searched the residences connected to 204th Street gang members on December 21, 2006, rumors circulated that the 204th Street gang believed "somebody might be snitching" about the Green murder. The belief was grounded in the fact that no one except Alcarez had been taken into custody following the search of Ash's apartment.
During the late afternoon of December 28, 2006, Covarrubias and four other 204th Street gang members (Silva,
The men drove to Silva's house and entered the garage where defendant and an unidentified woman were present. This was the first time that Covarrubias had met defendant. The woman stayed "for a couple of minutes, and . . . left." Later on, Fajardo and Juan Carlos Pimentel (also a member of the 204th Street gang) arrived.
Pimentel pulled Covarrubias aside and asked him if he thought Ash was a snitch and was keeping a journal about their gang's activity. Covarrubias said that he believed Ash was a snitch and that he had heard about the journal. Pimentel then had a private conversation with Aguilar.
Thereafter, all seven men, including defendant, gathered together and discussed the matter. Pimentel stated: "[W]e're gonna take care of Christopher Ash because of some snitching." In front of the entire group, Pimentel told Covarrubias to follow his (Pimentel's) lead when Ash arrived at the garage and "tear up" Ash's "body." Defendant, along with the other men, nodded his head up and down during this discussion. Everyone agreed that Ash would be brought to the garage and killed. The men decided that because Ash trusted Aguilar the most, Aguilar would bring Ash to the garage. Defendant offered to drive Aguilar to pick up Ash.
Before defendant and Aguilar left, defendant gave both Covarrubias and Pimentel a knife.
After approximately 20 minutes, defendant and Aguilar returned to the garage with Ash.
Silva retrieved a tarp and blanket and the men wrapped Ash's body in it. Everyone, including defendant, loaded Ash's body into a van. Fajardo and Pimentel left in the van. Five of the men, including defendant, stayed behind to clean the garage, using water and paint thinner, and to dispose of blood soaked items, including the two knifes used to kill Ash.
The police discovered Ash's body later that evening, approximately a mile and a half from Silva's home. Ash died of multiple stab wounds, 11 to the chest and 32 to the abdomen. Blood in Silva's garage and in the van used to transport Ash's body matched Ash's blood.
On February 7, 2007, Deputy Sheriff Ferguson and Sergeant Rodriguez interviewed defendant about Ash's murder. A recording of the interview was played to the jury. In that interview, defendant gave inconsistent and false statements about the events of December 28.
Los Angeles County Deputy Sheriff Mark Wedel, a gang expert, testified about the Fries Street gang. The gang, a subset of the Carson 13 gang,
Sergeant Daniel Robbins of the Los Angeles Police Department testified as an expert about the 204th Street gang. In 2006, the gang had approximately 100 members. Its primary activities included community intimidation, attempted murder and murder. When he arrested defendant on December 30, 2006, defendant "said he was from Fries." Sergeant Robbins had no opinion as to whether defendant was a member of the 204th Street gang but the sergeant knew of at least one member of the Fries Street gang (John Martin) who later joined the 204th Street gang. Further, Sergeant Robbins believed that Silva—who in the past had admitted he was a member of the Fries Street gang—was, by December 2006, a member of the 204th Street gang. (In Sergeant Robbins' opinion, the Fries Street gang was "defunct" in 2006.)
The prosecutor, utilizing the evidence presented at trial, posed a hypothetical question to Sergeant Robbins as to what, in his opinion, motivated the December 28 group murder of Ash.
Defendant testified on his own behalf, denying membership in the 204th Street gang and any involvement in Ash's murder.
According to defendant, he had been a member of the Fries Street group, "a group of kids" that "just" "hung out on" Fries Street in "the late '90s." At that time, the group had, at most, 10 members. Defendant "wouldn't necessarily say Fries Street is a gang." By 2006, when defendant was 29, he and Silva were the last remaining members of Fries Street. Defendant was also a member of RSK, a tagging crew. Defendant was never a member of the 204th Street gang and did not "hang out on a regular basis" with its members. Defendant and Silva were "best friends," having known each other for the last 17 years. Defendant knew that two of Silva's brothers were members of the 204th Street gang and that members of the gang "h[u]ng out" at the Silva residence. According to defendant, the Fries Street group and the 204th Street gang were "tolerable of each other," "the two groups could get along."
In December 2006, defendant was living with Silva. Prior to December 28, 2006, defendant had met Fajardo and Pimentel but not Aguilar, Covarrubias, or Ash. He knew that Pimentel, whom he had met five times, was a member of the 204th Street gang. On December 28, defendant was in Silva's garage with a women he identified only as "Trisha," "just hanging out." After 20 to 30 minutes, Aguilar, Silva, Claudio and Covarrubias arrived. Defendant stayed and spoke with the men but, at some point, began to go back and forth from the garage to his car because he was in the process of removing his belongings from the Silva residence. Defendant heard the men say "that they were looking for somebody that was telling on something" and that "somebody was snitching" but he did not hear a conversation about anyone being stabbed. Defendant did not give a knife to either Pimentel or Covarrubias. At one point, Aguilar asked defendant "to give him a ride to pick up his friend [Ash]." Defendant agreed to do so. Aguilar never told defendant why he wanted to bring Ash to Silva's garage.
When defendant, Aguilar and Ash returned to Silva's garage, defendant saw someone hit Ash in the back of the head with an object. At that point, defendant "knew it was none of [his] business, whatever was going on; so [he] just left" the garage and went into the Silva residence. Defendant never participated in assaulting Ash, either with his fists or a knife and never again saw Ash after he (defendant) left the garage.
Once defendant was inside the Silva residence, he went to Silva's bedroom where he visited with Silva and "Trisha" for "at least a half hour."
When asked why Covarrubias would falsely accuse him of participating in Ash's murder, defendant opined: "I think he would be pointing me out as somebody being a participant in that because . . . he doesn't really care . . . if anything was to happen with me because he doesn't know me. And he knows that I'm not from 204th Street; so it wouldn't be nothing really to him. That's what I think."
The trial court submitted the pattern CALJIC instructions defining murder, malice aforethought, and first degree murder. (CALJIC Nos. 8.10, 8.11, 8.20, 8.25.) Further, the court instructed on two theories of second degree murder: (1) a homicide committed with malice aforethought but without deliberation and premeditation and (2) a homicide that is the natural and probable consequence of an intentional act (in this case either assault with a deadly weapon or intimidating a witness by force) committed with conscious disregard for human life. (CALJIC Nos. 8.30, 8.31 & 9.00.) In addition, the pattern instructions about aiding and abetting were submitted. (CALJIC Nos. 3.00, 3.01 & 3.02.)
Defendant contends that the evidence is insufficient to sustain his conviction for second degree murder. He reasons as follows. First, he argues that the jury, by convicting him of second degree murder instead of first degree murder, "necessarily rejected Mr. Covarrubias' testimony that [defendant] was part of a group that agreed to kill Christopher Ash for snitching before [defendant] left with Mr. Aguilar to pick [Ash] up." Defendant further argues that "[n]o jury could have reached a second degree murder conviction based upon the testimony of Mr. Covarrubias, who was clearly out to pin the murder on [defendant] to preserve the benefit of his bargain with the prosecution." Relying upon a few inconsistencies and discrepancies in Covarrubias' testimony (see fns. 6 & 8, ante), defendant claims that the "jury did not believe Mr. Covarrubias and did not convict [defendant] based upon his testimony," and that the "second degree murder verdict indicates the jury proceeded under the theory that Mr. Ash's death was a natural and probable consequence of an assault or of intimidation of a witness." Defendant then proceeds to argue, based upon a one-sided and selective presentation of the evidence, that he did not know that "an assault or witness intimidation was the reason [he and Aguilar] picked up Mr. Ash" so that "there was no evidence that [he] intended to aid and abet an assault or intimidation of a witness." From that, defendant concludes that "the evidence did not prove [him] guilty of second degree murder beyond a reasonable doubt."
Defendant's approach is not persuasive. To begin, his assumption that the jury's acquittal on the first degree murder charge means that the jury rejected the entirety of Covarrubias' testimony and that we cannot rely upon that testimony in reviewing his contention of insufficient evidence is not correct. It is well settled that the jury can accept a portion of a witness' testimony while rejecting another portion of it. (People v. Maxwell (1979) 94 Cal.App.3d 562, 574-575; see also CALCRIM No. 105 [the jury "may believe all, part, or none of any witness's testimony."].)
Because it is the exclusive province of the jury to determine a witness' credibility, the jury's (implied) acceptance of a portion of Covarrubias' testimony is binding upon us unless that testimony was inherently improbable. (People v. Ennis (2010) 190 Cal.App.4th 721, 728-729.) But defendant does not urge that Covarrubias' testimony was inherently improbable. Instead, defendant relies upon Covarrubias' purported motive to fabricate (the plea bargain, see fn. 3, ante) and inconsistencies and discrepancies in his testimony (see fns. 6 & 8, ante) to argue, as he did in the trial court, that Covarrubias' testimony was not credible.
Defendant's attempt to reargue the evidence on appeal must fail because "it is not a proper appellate function to reassess the credibility of the witnesses." (People v. Jones (1990) 51 Cal.3d 294, 314-315.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) We therefore assume that the jury believed that portion of Covarrubias' testimony that supports the judgment. (People v. Swanson (1962) 204 Cal.App.2d 169, 173.) We view that evidence in the light most favorable to the judgment and presume the existence of every fact that the jury could reasonably infer from it. (People v. Medina (2009) 46 Cal.4th 913, 917.) With those principles in mind, we turn to the issue of substantial evidence to sustain the second degree murder conviction.
As noted earlier, the jury was properly instructed about the two theories of second degree murder raised by the evidence: (1) a homicide committed with malice aforethought but without deliberation and premeditation (2) a homicide that was the natural and probable consequence of aiding and abetting an assault with a deadly weapon or witness intimidation. The jury's general verdict convicting defendant of second degree murder does not, of course, disclose upon which of the two theories it relied. A reviewing court may sustain a general verdict of guilty on any one of the theories upon which the jury was properly instructed as long as substantial evidence supports the theory. (People v. Curtin (1994) 22 Cal.App.4th 528, 531.) In this case, we explain below that substantial evidence supports the theory of second degree murder based upon the theory of a homicide committed with malice aforethought. We therefore need not determine whether the evidence supports the verdict on the theory of a homicide that was the natural and probable consequence of aiding and abetting an assault with a deadly weapon or witness intimidation. (See, e.g., People v. Memro (1985) 38 Cal.3d 658, 695.)
Second degree murder is the unlawful killing of a human being with malice aforethought. (§§ 187, subd. (a), 189.) Malice may be express or implied. (§ 188.) Express malice is "a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) Implied malice exists when the defendant deliberately commits an act naturally dangerous to human life knowing "`that his conduct endangers the life of another and who acts with conscious disregard for life.'" (People v. Lasko (2000) 23 Cal.4th 101, 107.)
As explained above, defendant's argument that the jury's acquittal of the first degree murder charge meant that it rejected all of Covarrubias' testimony is incorrect. The acquittal meant only that the jury found that the People had failed to prove first degree murder beyond a reasonable doubt. Here, the jury was instructed that a defendant commits a second degree murder when he kills with malice aforethought "but the evidence is insufficient to prove deliberation and premeditation." (CALJIC No. 8.30.)
The jury, coupling some inconsistencies in Covarrubias' testimony (see fns. 6 & 8, ante) with defendant's testimony, could have concluded that the People failed to prove that by the time defendant left the garage with Aguilar to pick up Ash, defendant had heard or participated in the conversation(s) in which the other men agreed to kill Ash and/or had given both Covarrubias and Pimentel a knife. On that basis, the jury could have acquitted defendant of first degree murder. But after reaching that verdict, the jury, relying upon the remainder of Covarrubias' testimony,
Defendant's role as one of the three men who stabbed Ash to death constitutes more than ample evidence that defendant acted with malice: either express (intent to kill) or implied (an action taken in conscious and knowing disregard of life). We therefore find that substantial evidence supports defendant's second degree murder conviction.
Defendant moved for a new trial based upon juror misconduct. He offered declarations from two jurors that the jury had received and considered evidence not presented at trial: information about the convictions and sentences of Aguilar and Fajardo. The trial court found that this constituted juror misconduct that created a rebuttable presumption of prejudice. An evidentiary hearing was conducted at which nine jurors testified. Two testified that misconduct had occurred but the other seven denied any misconduct. In addition, affidavits were submitted from the three remaining jurors, each of whom averred that no misconduct had occurred. In a detailed and thoughtful ruling, the trial court found that the two jurors who alleged misconduct were not credible but that the ten jurors who denied misconduct were believable. On that basis, it concluded that extraneous information had not been presented to the jury; thus, no misconduct had occurred. In addition, it found that even if that information had been presented, there was no substantial likelihood that one or more of the jurors had been biased by it. The trial court therefore denied the new trial motion.
Defendant now contends that the trial court erred when it denied his new trial motion. We disagree.
After the jury returned its verdict on May 3, defendant sought release of juror information to support a new trial motion based upon the claim that the jury had improperly considered extraneous information during deliberations. Defendant included affidavits from two jurors: Nos. 6 and 11. Each averred that during deliberations, other jurors (either two or three) had stated that they had learned from newspaper articles that Aguilar had been sentenced to life without the possibility of parole and that Fajardo had been sentenced to death. The trial court found good cause to contact the remaining jurors. It ruled that the defense had made "a showing that there is juror misconduct, and that raises a rebuttable presumption of prejudice," and, as a result, ordered an evidentiary hearing.
At the evidentiary hearing, nine jurors testified: Juror Nos. 6 and 11 supported the claim of misconduct and seven other jurors testified that no misconduct had occurred. The particulars are the following.
Juror No. 6 testified to one incident. During deliberations, Juror Nos. 7 and 12 told the jury that they had read articles about the sentences the co-defendants had received and that "they felt that the defendant was guilty, too." Juror No. 6 testified: "One of [the two jurors] said one of them got life, and I don't remember the other one." The conversation lasted "probably two minutes." The conversation was "loud enough that everybody could hear it." Juror No. 6 concluded: "I just didn't think in the deliberation room that it was fair." Juror No. 6 testified that he recognized then that this constituted misconduct but explained that he did not report it to the trial judge "because we were right at the end of deliberations," "maybe 20 minutes."
Juror No. 11 testified as follows. After the trial concluded, she and Juror No. 6 had a discussion with defense counsel that led to her writing a letter to the court.
After Juror No. 11 sent her letter to the court, defense counsel contacted her. Thereafter, she signed the affidavit submitted in support of the request to release juror information in which she alleged that the jury had received extraneous information.
At the hearing, Juror No. 11 testified to four instances of misconduct. The first occurred during the second day of jury selection: the individual who was ultimately seated as Juror No. 12 told her in the hallway (with no one else around) that the trial of Aguilar and Fajardo had concluded the previous week. The second occurred during jury deliberation: Juror No. 12 stated that Aguilar "had received life in prison" and that Fajardo "had gotten murder one, capital." The third occurred "[a] little bit later" when Juror No. 7 and the foreman discussed "Aguilar's conviction and the implications on [defendant's] conviction." Juror No. 11 characterized it as "a very heated conversation" in which the foreman argued that because "Aguilar was guilty, . . . therefore [defendant] had to be guilty because there's no way that they could have driven to Mr. Ash's house and not discussed what was going to happen." She opined that "at least eight" jurors heard this discussion. The fourth instance of misconduct was a "very abbreviated" and "incomplete" conversation with Juror No. 12 concerning a newspaper article about the co-defendants' trial. When asked why she had not brought any of these instances to the court's attention during the trial, Juror No. 11 replied: "My impression actually was that our foreman was the only person who was allowed to speak to the bailiff [who, in turn, would relay the information to the trial judge]. We were supposed to talk to our foreman, who was supposed to convey anything [but he] was very arbitrary and difficult to deal with. [And] I also felt very intimidated in the deliberations room."
When the prosecutor asked Juror No. 11 why her letter of May 12 did not raise any issue about the jury's receipt of extraneous information, she replied: "That was not the purpose of the letter. [¶] . . . [¶] I was concerned about what would be [defendant's] future, not so much about this trial that had already taken place, but what would be the results." And when the court asked Juror No. 11 "Would it be fair to say . . . that you were acting as an advocate in the letter?", she replied: "Yes. I felt that there certainly wasn't one in the jury room."
Juror No. 1 testified that no one had discussed the co-defendants' trial, verdicts or sentences during deliberations. In addition, Juror No. 1 signed an affidavit averring: "I am not aware of any juror in this case having sought information from any source concerning co-defendants in this case. Neither the verdicts nor the sentences of any co-defendants entered our deliberations. . . . No outside information, outside the evidence from the trial, entered our deliberations."
Juror No. 3 testified that no juror ever mentioned having read a newspaper article about the case. In regard to the deliberations, Juror No. 3 testified that no juror brought in information about the conviction or sentencing of any co-defendant and that, in particular, no one said (as Juror No. 11 had claimed) that defendant was guilty because a co-defendant had been found guilty in another trial. In addition, Juror No. 3 signed an affidavit that "no juror introduced any outside information regarding the trials of any co-defendant."
Juror No. 7 testified that during deliberations, there was no mention of the co-defendants' convictions or sentencing. During defendant's trial, he never read any articles about the co-defendants' trial or learned of its outcome. Juror No. 7 signed an affidavit averring: "No juror mentioned any information from any outside source concerning any co-defendant in this case during deliberations. I am not aware of any juror having Googled or otherwise sought information concerning this case from any outside source. No outside information (from outside the evidence presented) concerning Gonzales' co-defendants was mentioned during deliberations or in the courthouse or anywhere else during the trial by any juror."
Juror No. 8 testified that at no point during deliberations was there any discussion about the co-defendants' convictions or sentences. He further testified that during the deliberative process, he never "c[a]me across" any article about the co-defendants' trial and was not aware that any juror had "sought" that "information." Juror No. 8 signed an affidavit averring: "No juror to my knowledge sought or introduced or spoke of any conviction or sentencing of any co-defendant. The subject of conviction and/or sentencing of co-defendants did not enter our deliberations."
Juror No. 9 testified that during deliberations, the co-defendants' convictions and sentences were not mentioned and that no one "ever [said] that [defendant] must be guilty because Aguilar must have discussed the purpose of picking up Ash with [defendant]." Juror No. 9 signed an affidavit averring: "I am not aware of any juror having sought information on the Internet concerning this case."
Juror No. 10 testified that she did not know the co-defendants' sentences during deliberations and that none of the jurors mentioned the co-defendants' convictions or sentences during deliberations. Juror No. 10's affidavit averred: "No juror, to my knowledge introduced any outside information about the conviction or sentencing of any co-defendant during deliberations."
Juror No. 12 testified that neither before nor during trial did he "come across" any information about the co-defendants' trial or sentences and that none of the jurors mentioned the co-defendants' convictions or sentences during deliberations. He denied having made, either during trial or deliberations, any statements about the co-defendants' convictions and sentences. He conceded that he had spoken to Juror No. 11 during jury selection but testified that the conversation was only about the Green killing because "that was discussed in the court here." Juror No. 12's affidavit averred: "I am not aware of any juror seeking or receiving information from any source concerning the convictions or sentencings of any co-defendant. The subjects of conviction and sentencing of co-defendants did
Lastly, affidavits from the three remaining jurors were introduced. Juror No. 2 averred:
The trial court ruled that "[a]fter reviewing the evidence in the evidentiary hearing as well as the affidavits filed, the court has decided that the prosecution has made an affirmative evidentiary showing that juror misconduct did not occur and, if the misconduct did occur, that there was no prejudice to the defendant."
The court found Juror No. 11's "credibility to be somewhat lacking because she evidenced a partiality towards the defendant and had buyer's remorse about her decision to vote a guilty verdict in this case. By her own admission, Juror 11 has attempted to be an advocate for defendant Gonzales." After setting forth multiple reasons why Juror No. 11 lacked credibility, the court stated: "This lack of neutrality as well as her demeanor in court has made me not credit her statements about what happened during deliberations. This is especially true when compared against the affidavits and evidentiary evidence that was offered by the People." (Italics added.)
In regard to Juror No. 6, the court stated: "I believe that Juror No. 6 also has an agenda and is somewhat biased towards the defense. [¶] . . . I do believe that Juror 11 and Juror 6 . . . entered into some kind of alliance to help [defendant] because they were not happy with the verdict despite having voted for it themselves." Juror No. 6's "willing[ness] to give [defendant] employment upon his release from prison . . . goes beyond a normal role a juror would play and calls into question Juror No. 6's neutrality." The court noted that it is "possible to conclude that [Jurors Nos.] 6 and 11, through the prism that they were looking at these deliberations, saw more than what happened."
In addition, the court noted that both Jurors Nos. 6 and 11 testified that the other jurors heard the extraneous information about the co-defendants' convictions and sentences but that the 10 other jurors denied that ever happened. The court explained: "[T]hese two assertions of what happened in the jury room in the jury deliberations cannot coexist. And I choose to find, based on the credibility and the questions asked of the testifying witnesses, the sheer weight of the testifying jurors, the three jurors who provided affidavits, that the seven jurors that testified here — I found them to be credible."
The court concluded that "the strength of evidence supporting misconduct is very weak and that the People have provided affirmative evidence supporting that no misconduct occurred, overcoming the presumption of prejudice." In addition, the court found that even if the jury had been exposed to the information about the convictions and sentences of Aguilar and Fajardo, there was no substantial likelihood that any juror was biased by the information.
Determination of a new trial motion based upon a claim of juror misconduct involves a multi-step approach. First, the trial court determines whether the affidavits supporting the motion are admissible. If it finds that the evidence is admissible, it next determines whether it establishes misconduct. If it does, a rebuttable presumption of prejudice arises. The burden then shifts to the People to rebut the presumption of prejudice. (People v. Hord (1993) 15 Cal.App.4th 711, 724.)
In this case, defendant's assertion of juror misconduct was based upon the claim that the jury improperly received information about his co-defendants' convictions and sentences. "A juror's receipt or discussion of evidence not submitted at trial constitutes misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809.) Here, the trial court found, based upon the initial defense showing, that juror misconduct had occurred that was presumptively prejudicial. At that point, it became the People's burden to rebut the presumption of prejudice. One manner in which the presumption can be rebutted is "`by an affirmative evidentiary showing that prejudice does not exist'" because the misconduct, in fact, never occurred. (People v. Von Villas (1995) 36 Cal.App.4th 1425, 1431.) The People carried that burden at the evidentiary hearing. The trial court disbelieved the claim of Jurors Nos. 6 and 11 that the jury received and considered information about the co-defendants' convictions and sentences. Based upon that credibility determination, the court found that no misconduct had occurred. We must accept the trial court's factual findings and credibility determinations if supported by substantial evidence. (People v. Dykes, supra, 46 Cal.4th at p. 809.)
In this case, substantial evidence supports the trial court's determination that Juror Nos. 6 and 11 were not credible. We begin with Juror No. 11. Nine days after the trial ended, she sent a three-page letter to the trial judge setting forth multiple concerns about the trial. Significantly, the letter contained no mention of the jury's receipt of outside information. Further, although Juror No. 11 testified to four purported instances of misconduct, she never brought any of the incidents to the trial judge's attention during trial. In addition, as conceded by her testimony, she was an "advocate" for defendant, and based upon her representations in her May 12 letter, sought to help him in multiple ways. Lastly, 10 jurors disputed her claim that the jury had received or considered evidence not submitted at trial. In particular, both Juror No. 12 (the individual whom she testified had introduced the extraneous information into the jury room) and Juror No. 7 (the individual whom she had claimed discussed the implication of Aguilar's conviction on defendant's case) denied any misconduct. On this record, the trial court did not abuse its discretion in finding that Juror No. 11's claim of misconduct was not credible.
As for Juror No. 6, his impartiality was called into question by his willingness to give defendant a job upon release from prison. Further, the trial court was not required to credit Juror No. 6's explanation that he did not immediately notify the court about the purported receipt of extraneous information because deliberations were almost over, given that he testified that he recognized misconduct had occurred and did not think that "it was fair." And, as with Juror No. 11, the ten other jurors—including the two he accused of misconduct (Jurors Nos. 7 & 12)—all directly contradicted Juror No. 6's assertion of misconduct. Given these circumstances, the trial court's finding that Juror No. 6 was not credible is more than amply supported by the record.
In sum, the trial court did not abuse its discretion in finding, after having conducted the evidentiary hearing, that the People had rebutted the presumption of prejudice by establishing that no outside information had been brought to the attention of the jury. (People v. San Nicolas (2004) 34 Cal.4th 614, 651.)
Defendant's arguments for a contrary conclusion essentially rehash the arguments he unsuccessfully advanced in the trial court. It is not our role to reweigh the credibility of the jurors after the trial court has made its findings, particularly since the trial court observed the demeanor of nine jurors and questioned many of them at the evidentiary hearing. (People v. Dykes, supra, 46 Cal.4th at p. 809.) Because the record more than amply supports the trial court's finding that no misconduct occurred, it is not necessary for us to examine the trial court's further ruling that even if the extraneous information had been introduced, there was no substantial likelihood that any of the jurors had been biased as a result. (See fn. 17, ante.)
The judgment is affirmed.
MANELLA, J. and SUZUKAWA, J., concurs.
In this case, the trial court submitted CALJIC No. 2.11.5 ("Unjoined Perpetrators of Same Crime") to the jury at the close of trial.
In addition, we note that when the trial court denied defendant's new trial motion it stated, in relevant part: "I thought the strength of the case against [defendant] was pretty strong. Clearly, . . . a lot of it depended upon a single witness, Mr. Covarrubias. But Mr. Covarrubias did not get some fantastic deal, and I thought his testimony in viewing him was fairly strong."
