The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on April 3, 2012. Respondent filed an answer to the petition on July 10, 2012, and Petitioner filed a traverse on August 2, 2012.
STATEMENT OF CASE AND FACTS*fn1
[Petitioner] Derrick Lashan Hill was convicted of numerous crimes arising from a murder and home invasion robbery. [N.1] He appealed to this court and we remanded the matter to the trial court for an evidentiary hearing on the issue of jury misconduct. In addition, we ordered the court to amend the abstract of judgment if it denied the motion for new trial after the evidentiary hearing. The trial court held an evidentiary hearing where all jurors and alternates were questioned. The court denied the trial court's ruling denying his motion for new trial and amended the abstract of judgment. [Petitioner] appeals the trial court's ruling denying his motion for new trial based on juror misconduct asserting it was erroneous on multiple grounds. We disagree and affirm the judgment. [N. 1] We have taken judicial notice of the record in [Petitioner's] prior appeal, (People v. Hill (July 9, 2009, F054334) [nonpub. opn.] (Hill)).
[Petitioner] was charged with murder of Sebastian Caradonna by personal use of a firearm during the course of a robbery (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17) & 12022.53, subd. (b)). He was also charged with two counts of robbery by personal use of a firearm: the robbery of Sebastian Caradonna and the robbery of Veronica Caradonna (Pen. Code, §§ 211 & 12022.53, subd. (b)). It was further alleged he had a prior serious felony conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667.5, subd. (b)-(i)).
The Caradonnas ran a cleaning service from their home. In 2006, they paid their employees in cash. In January 2006, Ceona Ashley Harvey worked for them for about a week. The Caradonnas were planning to switch from cash payments to checks beginning the first week of February. During the brief time Harvey worked for them, she asked a fellow employee, Ruben Perez, if Sebastian Caradonna had a safe and how much money be carried.
On Tuesday, February 1, 2006, sometime around 10:00 p.m.., [Petitioner] and a male accomplice, wearing masks and carrying guns, accosted three employees who had just arrived at the Caradonna residence to get their supplies and instructions for the evening. The Caradonnas and their two children were inside the house. [Petitioner] and his accomplice forced the employees into the house, robbed the Caradonnas, and shot and killed Sebastian.
[Petitioner] and Harvey were originally charged as co-defendants in the information. Their trials were subsequently severed and the trial on Harvey's case concluded prior to the trial on [Petitioner's] case.
In [Petitioner's] trial, evidence linking him to the commission of the crimes was found in the call detail records from Cricket Communications for Harvey's and [Petitioner's] cellular phones. The records showed 14 calls exchanged between the two between January 20, 2006, and January 30, 2006. On January 30, 2006, the night before the murder, two calls from [Petitioner's] cellular phone were made to Harvey's cellular phone. Those calls were picked up by Cricket tower E2444. Tower E2444 was the Cricket tower located closest to the Caradonnas' residence. On the date of the murder, six calls were exchanged between the two cellular phones. The last one was at 8:58 p.m. and was from Harvey to [Petitioner]. The Cricket tower [Petitioner's] cellular phone used to receive the call was near the Caradonnas' residence. After the murder, from February 2, 2006, to February 4, 2006, [Petitioner] and Harvey exchanged 11 calls. Evidence was presented explaining that only connected calls are recorded in the records and that cellular phone calls are, 90 percent of the time, picked up by the nearest cellular telephone tower. If issues such as cellular telephone traffic, structures, foliage, or other obstructions came into play, a call could go to the next closest tower; but, a wireless telephone consultant testified that 10:17 p.m. on a Tuesday is not a high traffic time for cellular telephone usage and, in the specific area the crimes occurred, there were no obstructions that would interfere with a call. The consultant opined there was a 99.9 percent certainty that a call in that area would go to the nearest tower. An independent consultant in the telephone industry testified for [Petitioner] regarding the circumstances under which a call might not go to the nearest tower, but agreed that most calls normally do go to the nearest tower.
[Petitioner] was convicted of first degree murder and two counts of robbery. The jury found true the special circumstance of murder committed during the course of a robbery and, as to each count, that [Petitioner] personally used a firearm. [Petitioner] admitted the alleged prior serious felony conviction. [Petitioner] subsequently moved for a new trial based on juror misconduct. He raised three concerns regarding the jurors' conduct. First, he asserted jurors discussed the case while the trial was in progress and before deliberations began. Second, he claimed a juror did weekend Internet research on the use of cellular telephone records, printed out an article, brought it into the jury room, and discussed it with other jurors. Third, he asserted newspaper articles regarding the trial were brought into the jury room, passed around, and discussed. The trial court declined to call jurors and question them on the issue of misconduct. Instead, it gave [Petitioner] the benefit of the doubt on all assertions. [Petitioner's] motion was denied.
In his first appeal, [Petitioner] raised numerous errors. We found error, in part, in the hearing on the issue of juror misconduct. As to two of the claims of misconduct, we found they did not result in a showing of jury bias, and failed to meet the standard that would require a new trial.
Regarding the first claim, the article on cellular telephone records obtained by Internet research, we stated, "The evidence at trial regarding cellular telephone records was extensive, with an expert for the People and an expert for the defense discussing how cellular telephone calls can be traced to a particular area. Both experts agreed that normally a cellular telephone call will bounce off the closest tower unless there is interference based on terrain, physical barriers, or call traffic at the time the call is placed. The article did not contradict this testimony." (Hill, supra, F054334.)
The second claim involved the discussion of the case by jurors before deliberations began, and we found that, without more details as to the extent of the discussions or the nature of the discussions, the allegations did not warrant a new trial.
However, as to the third claim of misconduct, [Petitioner's] assertion regarding the newspaper article, we determined more inquiry needed to be made. The article at issue stated, toward the end, "'Authorities said Hill knew about Caradonna's business from Ceona Ashley Harvey, who had worked there briefly. Hill and Harvey knew each other through the marriage of relatives. [¶] Harvey was convicted of first-degree murder in March for helping Hill plan the robbery. She was sentenced the following month to life in prison without the possibility of parole.'" (Hill, surpa, F054334.) We found, "The evidence presented in this trial to link Harvey to the murder was that she had worked for the Caradonnas, she knew [Petitioner], she asked another employee about how much money Sebastian carried, and she exchanged several telephone calls with [Petitioner] in the days leading up to and following the murder, including the one telephone call the night before the murder that was recorded on the cellular tower near the Caradonnas' residence. The focus of the evidence at this trial was not on Harvey; Harvey's statements (admitted at her trial) were not admitted at [Petitioner's] trial. In the trial of [Petitioner], the evidence that Harvey was directly involved in the murders was not particularly strong, yet the article informed the juror(s) who read it that Harvey had been convicted of first degree murder. Thus, the jury was aware that a co-defendant, linked to the crime in a much less significant way than the current [Petitioner], had already been found guilty. Even more injurious is the portion of the article that states she was found guilty for helping [Petitioner] plan the robbery, directly imputing her guilt as arising from [Petitioner's] involvement and clearly inferring that she merely helped [Petitioner]." (Hill, supra, F054334, fn. Omitted.) We held that, "[t]he article stating that Harvey was previously convicted of first degree murder for helping [Petitioner] plan the robbery, when judged objectively, is inherently and substantially likely to have influenced a juror." (Ibid.)
We remanded the matter to the trial court for a new evidentiary hearing on the motion for new trial based on juror misconduct. In doing so, we found the People and [Petitioner] were entitled to a full evidentiary hearing to determine the truth or falsity of the allegations. We stated, "[s]hould the credible evidence demonstrate misconduct and prejudice, the People have the burden to rebut prejudice. Although we have found the evidence of the cellular telephone articles and discussion by jurors of the case outside of deliberations to not amount to prejudicial misconduct on the record before us, if further evidence relating to these two areas of misconduct is . developed and found credible at the evidentiary hearing, the trial court should then reassess the prejudice in light of the new evidence." (Hill, supra, F054334.)
On remand, [Petitioner] asked the trial court to question each juror and alternate juror individually out of the presence of the other jurors. He argued the jurors would be less intimidated by other jurors and more forthright in their answers if the questioning was done this way. [N.2]
[N.2] Unless stated otherwise, when we refer to the "jurors" we are referring to the 12 jurors and the two alternates combined.
The trial court denied [Petitioner's] request stating, "it had the issue of credibility of the jurors to consider and could better make that determination by listening carefully to the juror who was speaking, watching the reaction of the other jurors as well as the demeanor of and observing the body language of the speaker and the other jurors at the same time. Another consideration by the Court was to have the two jurors who initially approached defense counsel with the possible misconduct issue and filed affidavits, present their issues in the presence of all the jurors who could hear firsthand what the accusations were and to have the opportunity of an immediate response rather than have the Court or the attorneys explain what the two jurors in question had testified to with the strong possibility of unintentional misstatements or misquotes."
The jurors, with the exception of Juror No. 12, were brought into and remained in the courtroom together where they were questioned individually. [N.3]
[N.3] Juror No. 12 could not be located when the jurors were summoned to appear in court. No. 12 was questioned at a later date.
Each juror was asked a series of questions. No. 12 was asked the same questions on a later date. Each juror was asked if the juror discussed the case with nonjurors prior to deliberations. Alternate No. 2. stated there was a discussion among two or three people while they were waiting for the shuttle to arrive. When Alternate No. 2 told them they should not discuss the case, the discussion stopped. Alternate No. 2 also said the conversation at the shuttle stop did not concern the guilt or innocence of [Petitioner]. All the other jurors either said there was no discussion, or did not recall a discussion, or could not remember a discussion of the case with nonjurors. [N.4]
[N.4] Many times defense counsel would not ask a straightforward question such as, "Did you discuss the case with other jurors outside of deliberations?" Counsel instead would ask, "Do you recall or remember discussing the case outside of deliberations?" When a juror responded no to the second type of question, it was not clear if the response meant the juror did not recall discussing the case outside of deliberations because in fact he or she did not discuss the case with other jurors, or the juror did not have a recollection of whether he or she discussed the case with other jurors. This type of questioning continued throughout the proceedings.
The jurors were asked if the case was discussed with other jurors before deliberations. No. 5 stated they talked regarding the procedure of the case, but did not discuss facts. All the other jurors either said there was no discussion, or they did not recall a discussion, or could not remember a discussion of the case with other jurors.
The jurors were asked if they did any Internet research regarding the case during the trial. All the jurors said they did not do Internet research, or did not recall doing Internet research, or could not remember doing Internet research. None of the jurors said they did Internet research relating to the case during the trial.
Jurors were asked if they recalled anyone bringing in the results of Internet research concerning the case. No. 5 said someone brought in an Internet article that had something to do with cellular phone towers and a lot of jurors got to see it. No. 5 thought there might have been a discussion regarding the Internet article.
No. 11 stated someone brought in pieces of paper from Internet research and said they found some "stuff" on cellular phone towers. The person put the papers on the table, but no one got excited and jumped to read it, the article was "sort of dismissed." The papers were merely sitting on the table.
Alternate No. 2 said someone put papers on the table from the Internet. Alternate No. 2 did not pay attention to what it was and did not remember ...