APPEAL from a judgment of the Superior Court of Los Angeles County, Gail Ruderman Feuer, Judge. (Los Angeles County Super. Ct. No. BA346025)
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
A verdict may be overturned and a new trial granted for jury misconduct demonstrated by the sworn affidavit of a juror. In this case, both the defense and prosecution presented unsworn statements of jurors on the issue of jury misconduct, and at the urging of the trial court, the parties agreed to waive any objection to the unsworn statements in order to allow the court to reach the merits of the issue. In other words, defense counsel and the prosecutor agreed that 13 unsworn juror statements had been made under penalty of perjury. Based upon the unsworn juror statements, the court found misconduct occurred when a juror accessed the internet by cellular phone for a definition of reasonable doubt and when the jury considered punishment. The court denied the motion for new trial, without holding an evidentiary hearing, ruling that the presumption of prejudice arising from jury misconduct was rebutted.
In light of the policy in favor of upholding the integrity of jury verdicts, and the complimentary rule that jury misconduct may warrant a new trial when shown by sworn juror affidavits, we hold that a new trial may not be granted in the absence of sworn juror affidavits establishing misconduct. Because of the nature of the misconduct asserted in this case, we remand the matter to the trial court for a hearing on the issue of jury misconduct in accordance with settled law.
Defendant and appellant Eddie Bryant was convicted by jury of second degree robbery (Pen. Code, § 211),*fn1 with a finding that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). The trial court sentenced defendant to state prison for the low term of two years for the robbery, enhanced by ten years for the firearm use allegation.
Defendant argues the trial court committed prejudicial error in denying the motion for new trial, based on allegations of jury misconduct, without holding an evidentiary hearing involving inquiry of the jurors. Defendant also contends the evidence established he was merely armed with a firearm (§ 12022, subd. (a)(1)), but was insufficient to prove firearm use in the robbery. We remand the jury misconduct issue to the trial court for further proceedings and hold the evidence was sufficient to support the firearm use allegation.
Sheila Safadaran and Felicia Davis attended a college fraternity party at the Derby in Los Angeles on August 30, 2008. Both women noticed that defendant stood out among the crowd of well-dressed partygoers, due to his two long braids or pigtails that started at the front of his head and went toward the back, his white tank top, blue jeans, and sweater over his shoulder. Defendant appeared to be at the party with three other males, one of whom was a juvenile who also wore a tank top and blue jeans and had braided hair, but with only a single pony tail.
Safadaran and Davis walked to Safadaran's car as the party was winding down at approximately 1:45 a.m. Safadaran entered the car first. As Davis was standing by the trunk of the vehicle with her cell phone in her hand, defendant approached with a shiny gun in his right hand and said, "Give me your phone." Defendant stood one to two feet from Davis with the gun held down to his side; it was not pointed at Davis at any time. In fear, Davis placed her phone, a Sidekick by T-Mobile, on the trunk of the car as demanded by defendant. Defendant ordered Davis to get in the car without looking back.
Safadaran saw defendant at the trunk of the car near Davis, with his hand in his pocket; she did not see a firearm. She could tell from Davis' voice that something was wrong. Davis entered the car and told Safadaran to leave and not look back because defendant had taken her phone. Safadaran heard defendant say, "Drive off. Don't look back."
Safadaran called 911 and was directed to drive to a nearby restaurant to safely meet officers. Safadaran also called a friend, Jon Faievre, who had been a crowd manager at the Derby and described the robber to him. Faievre saw defendant, who matched the description given by Safadaran, in front of the club. Faievre watched defendant and three others enter a white Camaro with one functioning headlight. Faievre followed in his own car as defendant drove the Camaro, staying in contact with Safadaran along the way.
Safadaran saw defendant driving the car matching the description given by Faievre. The police stopped the vehicle, and later Safadaran and Davis were driven to a location to view a field show-up of four males, where both women made positive identifications of defendant. Davis's cell phone was recovered from the car, as was a loaded silver firearm from beneath the back seat.
Defendant, who had never committed a crime and denied commission of the robbery and possession of a gun, suggested in his testimony that Chris Prude, who was with defendant at the Derby, was the person who committed the robbery and placed the firearm under the rear seat of the Camaro. Defendant's friend and business associate, Devynn Brown, provided similar testimony and vouched for defendant as being friendly, loyal, and a good person. Another friend, John Montes, gave testimony along the same lines as Brown. The mother of defendant's girlfriend testified she paid for defendant's Sidekick cellular phone, she had never heard anyone say anything bad about defendant, and did not believe defendant would commit robbery.
MOTION FOR NEW TRIAL BASED ON JURY MISCONDUCT
Defendant argues the trial court erred in denying his motion for new trial based on jury misconduct. He identifies two forms of jury misconduct--a juror looking up the definition of reasonable doubt on a cell phone during deliberations and the jury's consideration of punishment in reaching a verdict. Defendant contends the presumption of prejudice that existed after the trial court's finding of misconduct was not rebutted, and there was a substantial likelihood of actual harm to the defense. Defendant further contends the trial court committed prejudicial error in ...