APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. Reversed. (Super. Ct. No. SCD204169).
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PUBLICATION
The right to a trial by jury is guaranteed by the state and federal Constitutions and is a cornerstone of our legal system. We entrust to 12 jurors the solemn task of judging the credibility of witnesses, evaluating the significance of the evidence, and ultimately determining whether a defendant in a criminal trial is guilty.
To maintain the integrity of the process, potential jurors are screened for bias through the voir dire process. Those selected take an oath to follow court instructions designed to protect the deliberative process, eliminate outside influences, and generate a decision based solely on the evidence presented at trial. Jurors are told that to ensure both sides receive a fair trial, they are not to discuss the case with anyone and that deliberations must occur only in the jury room.
Here, a juror ignored these admonitions and violated his sworn duties by speaking on a daily basis about the merits of the case with his nonjuror friend. After defendant was found guilty, he learned of this juror misconduct and moved for a new trial. The prosecutor agreed the juror's conduct constituted misconduct and created a presumption of prejudice, but argued the presumption of prejudice had been rebutted. The court ruled the presumption of prejudice had been rebutted and denied the new trial motion. On appeal, defendant challenges this and several other rulings.
We conclude the trial court erred in denying the new trial motion. Because the conversations with the nonjuror were pervasive, focused on deliberative matters concerning the merits of the case, and included discussions of the defendant's decision not to testify, the misconduct was prejudicial. The conversations interfered with the deliberative process and the right to have the case decided by twelve impartial jurors. When even one juror lacks impartiality, the defendant has not received a fair trial. The juror misconduct in this case requires that the judgment be reversed.
For guidance upon retrial, we address two additional contentions of error raised on appeal: one concerning the victim's diary and the other pertaining to the jury unanimity requirement. We hold that if the prosecution introduces excerpts of the diary into evidence, the defense is entitled to examine the entire diary, subject to appropriate protective orders. Also, we reject defendant's contention that Penal Code*fn1 section 288.5, which defines a continuous-course-of-conduct offense, violates his right to a unanimous jury verdict.
FACTUAL AND PROCEDURAL BACKGROUND
S., the victim in this case, is defendant's granddaughter.*fn2 S. lived with her parents in San Diego County, and defendant lived with his wife (S.'s grandmother) in another county. The relatives frequently visited each other at their respective homes. S., age 16 at the time of trial, testified that defendant molested her during these visits. The molestations started in 1998 when she was seven years old. At her home, the molestations occurred primarily in her bedroom when defendant came upstairs to her room to kiss her goodnight. At defendant's home, the molestations usually occurred when she was on a rollaway bed on the floor in her grandparents' downstairs bedroom. S. also recalled being molested when she was lying between her grandfather and grandmother in their bed, and on one occasion in San Diego County when she was in her bathing suit.
S. testified that during these incidents, defendant typically rubbed her vagina with his hand, and she rubbed his penis with her hand. On some occasions defendant also performed oral sex on her vagina. The molestations occurred virtually every night when defendant was visiting at her residence or she was visiting at his residence. S. recalled that on one visit to her grandparents' home when she was about nine or 10 years old, defendant came into the room when she was writing in a journal about the visit. Defendant told her "to make sure that [she] never wrote anything down or told anyone because it was [their] little secret."
S. and her mother recounted two specific incidents that occurred at S.'s house. On one occasion when S. was about eight, she asked her mother if it was "okay" if defendant did not come to her room that evening to say goodnight. S.'s mother, who knew nothing about defendant's conduct, responded that it was important for her grandfather to have his "special time" with her. Defendant then came to her room as usual and molested her. On another occasion when S. was about nine years old, her mother entered her bedroom and unknowingly interrupted the molestation. According to S., defendant was standing by her bed and she was rubbing his penis with "his boxers . . . pulled aside." S. saw "the light of the door opening," and defendant sat down on the bed "really fast." Her mother entered the room, stated it was getting late and S. had to go to bed, and then walked back out. Defendant commented "that was close," and left the room.
During this second incident, S.'s mother recalled that she had been downstairs talking with her husband and mother. Because it seemed that her father had been upstairs for an extended period of time and she wanted S. to go to sleep, she went upstairs and noticed that S.'s bedroom door was closed, which was unusual. When she opened the bedroom door, S. was lying on her bed on her back with no blankets on and defendant was seated on the side of the bed with his head "pointing down at the floor." Defendant did not look at her or initially respond; when she walked over to him and put her hand on his shoulder and stated S. needed to go to bed, he mumbled, "just a minute."
The molestations continued until S. was about 12 years old, when S. realized that her grandfather's conduct was wrong. She asked him to stop, and he complied.
About two years later, in 2005 and early 2006, S. (now age 14) told two of her friends about the molestation. She also kept a diary during this time period, and on April 23, 2006, wrote:
"There is something I really want to say. But I don't know. I've told people. But I've never put it down in writing. But I really . . . want to get it off my chest. My poppy [defendant] raped me. He started when I was about 9. I don't remember how. He never had intercourse & he never kissed me. But we did everything in between. He scarred me for life. I'm not afraid to admit it. But I'm really afraid I'll end up telling the wrong person & they will tell my mom. Because if she ever finds out, I think it would scar her too. But I think it[']s important for her to know. But not now. but when? how? Life sucks. What can you do?"
In May 2006, S.'s mother read the April 23 entry without S.'s knowledge. Shortly thereafter, she informed S.'s father about this, and the two spoke with S. S. confirmed that the molestation had happened. She told her parents that she had intended to tell them about the molestation after defendant died because she did not want to upset the family.
In addition to testimony from S. and her mother, the prosecution presented testimony from a number of other witnesses, including S.'s father, the friends in whom S. had confided about the molestation, an investigating detective, an expert witness who explained delayed disclosure and other matters, and (in rebuttal) witnesses who attested to S.'s honest character.
In defense, several family members and friends, as well as an expert witness, testified on defendant's behalf to support that he did not have the character to molest S. and there were no indications that he had molested S. or any other child. Three of defendant's other grandchildren (a teenage granddaughter, an adult granddaughter, and an adult grandson), who had all spent the night at defendant's home, testified that defendant never touched them inappropriately and they never saw anything suggesting he touched any child inappropriately. Jury Verdict
Defendant was charged with eight sexual offense counts. Count 1 alleged continuous sexual abuse of a child under age 14 from August 20, 1998, to June 30, 2001. (§ 288.5, subd. (a) [three or more acts over a period of not less than three months]). The remaining counts alleged lewd conduct and oral copulation with a person under age 14 during various time periods between July 2001 through December 2002. The first trial ended in a mistrial after the jury deadlocked on the charges. After a second trial, the jury reached a guilty verdict on count 1. The jury was deadlocked on counts 2 through 8, and the court dismissed these charges. The court sentenced defendant to the lower term of six years for the count 1 section 288.5 conviction.
After the jury rendered its guilty verdict, defendant moved for a new trial contending that the conviction must be set aside because of juror misconduct arising from Juror D.'s daily discussions about the case with his friend, G.
Defendant submitted declarations from Juror D. and from G. Juror D. and G. declared that they talked "each day at lunch about the case starting the first day of testimony." Further, every evening (or most evenings) during the trial G. called Juror D. and they talked about the case.*fn3
Juror D. described the content of their discussions as follows. After three to four days of testimony he told G. that he thought defendant "was on a sinking ship." Toward the end of the prosecution's case, G. told Juror D.: " '[W]e're looking for a motive [for S. to falsely accuse defendant], and we can't find a motive yet' . . . ." The two men discussed different motives S. might have, such as the possibility that defendant was rich and was "cutting . . . off" S.'s part of the family or that another granddaughter "maybe [was] getting everything and [S.] was not." During the defense case, Juror D. commented to G. that he did not think defendant was going to testify. In response, G. told Juror D. to consider "OJ" and another high profile defendant who did not testify and who " ...