Lynne S. Coffin, under appointment by the Supreme Court, Lynne S. Coffin, State Public Defender, Audrey Chavez and Gail Johnson, Deputy State Public Defenders, for Petitioner Maurice Boyette.
Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Ronald S. Matthias, Glenn R. Pruden and Christina Vom Saal, Deputy Attorneys General, for Respondent State of California.
In 1993, an Alameda County jury convicted petitioner Maurice Boyette of two counts of first degree murder for shooting and killing Gary Carter and Annette Devallier. (Pen. Code, § 187.) The jury also convicted petitioner of being a felon in possession of a firearm (§ 12021) and sustained allegations that he was both armed with (§ 12022, subd. (a)) and used (§ 12022.5, subd. (a)) a firearm during the crimes. The jury also sustained a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)), rendering him eligible for the death penalty. Following the penalty phase of trial, the jury sentenced petitioner to death. This court affirmed his conviction and sentence in 2002. (People v. Boyette (2002) 29 Cal.4th 381.)
While his appeal was pending, petitioner also filed a petition for writ of habeas corpus in this court. Having found the petition stated a prima facie case for relief on several claims of alleged juror misconduct, this court issued an order on November 15, 2006, instructing the Director of the Department of Corrections to show cause why relief should not be granted. We thereafter appointed a referee to determine certain disputed facts. After holding an evidentiary hearing, our referee filed his report with this court, and the parties filed their exceptions to it. The case is now ripe for decision. As explained below, we accept the referee’s report and findings as supported by substantial evidence, discharge the order to show cause, and deny relief.
A. The Facts of the Crimes
The facts surrounding petitioner’s crimes, set forth in more detail in our opinion on appeal (People v. Boyette, supra, 29 Cal.4th at pp. 403-407), are not relevant to the analysis of the juror misconduct claims raised in the habeas corpus petition and contained in the order to show cause. Suffice it to say the evidence showed that petitioner acted as a bodyguard for a drug dealer in Oakland named Antoine Johnson; Johnson learned the two victims, Carter and Devallier, had allegedly stolen rock cocaine and cash from a safe house Johnson maintained; and petitioner accompanied Johnson to the house, confronted the victims and, in the ensuing melee, shot and killed both victims at pointblank range.
B. The Habeas Corpus Petition
Petitioner filed a lengthy petition for writ of habeas corpus raising numerous issues. We found the petition stated a prima facie case for relief as to six claims, all of which related to various aspects of alleged misconduct by jury foreperson Pervies Lee Ary, Sr. (Ary). (See People v. Duvall (1995) 9 Cal.4th 464, 475 [“If... the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause].”].) Accordingly, we issued an order to show cause, directing the custodian “to show cause before this court when the proceeding is ordered on calendar, why the relief prayed for should not be granted on the grounds that: (1) Juror Pervies Ary concealed relevant facts or gave false answers during voir dire concerning his prior felony conviction and other contacts with the justice system; (2) Juror Pervies Ary concealed relevant facts or gave false answers during voir dire concerning the prior criminal records of his sons; (3)...; (4) Juror Pervies Ary concealed relevant facts or gave false answers during voir dire concerning his problem with alcohol and his son’s drug addiction; (5) Juror Pervies Ary introduced information into the jury deliberations concerning an alleged prior murder committed by petitioner Maurice Boyette, although no evidence of such a crime was introduced at trial; and (6) Juror Christine Rennie and one other juror, at the urging of Juror Ary, during the pendency of the jury deliberations, rented and watched a videotape of the movie American Me in order to gather background information for the trial.”
The Attorney General, representing the Director of the Department of Corrections and Rehabilitation, thereafter filed a return (see People v. Duvall, supra, 9 Cal.4th at p. 475), and petitioner responded by filing his traverse (id. at p. 476; see generally In re Bacigalupo (2012) 55 Cal.4th 312, 332-333). After considering the return (in which the Attorney General conceded the existence of disputed material facts) and the traverse (in which petitioner reasserted his original allegations of juror misconduct), we determined the case turned on disputed questions of fact requiring resolution in an evidentiary hearing. Therefore, on September 9, 2009, we issued an order appointing the Honorable Jon Rolefson, Judge of the Alameda County Superior Court, to serve as our referee in this proceeding and to answer specific factual questions, addressed in more detail below.
C. The Evidentiary Hearing, the Referee’s Report, and the Parties’ Exceptions Thereto
1. Ary’s Failure to Reveal His Criminal History
Question No. 25 on the jury questionnaire given the prospective jurors in petitioner’s case asked: “HAVE YOU, A CLOSE FRIEND, OR RELATIVE EVER BEEN ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT COME TO COURT?” Ary answered “NO.” Despite this response, petitioner alleges that Ary himself had several times been accused, and even convicted, of a crime and failed during voir dire to disclose that fact, to wit, that Ary (1) was charged in 1964 with two counts of robbery and grand theft, and was convicted that same year of felony grand theft; (2) was charged in 1971 with seven counts of robbery, but the charges were dismissed for insufficient evidence; (3) pleaded guilty to driving under the influence of alcohol (DUI), a misdemeanor, in 1982 and was placed on probation; and (4) had his probation revoked in 1982 and was reinstated to probation that same year. Ary himself declares he “was arrested in... 1963 and spent some time in jail.”
Petitioner also alleges his trial attorney was unaware of Ary’s felon status or his concealments. A declaration by Walter Cannady, petitioner’s lead trial attorney, supports this allegation. Cannady states he was unaware of Ary’s prior felony conviction and that, had he known, he would have questioned Ary on the subject. Moreover, based on his experience with the trial judge, Cannady is confident the court would have sustained a challenge against Ary for cause. Cannady further declares he would have used a peremptory challenge to remove Juror Ary in any event.
In the return, respondent agreed a dispute of material facts existed “whether Ary deliberately misrepresented his prior criminal history from decades ago or whether he believed that record had been expunged, was too old to count, or was otherwise not covered by the questions asked on voir dire.” We thereafter directed our referee to answer the following questions: “Given that Juror Pervies Lee Ary was in 1964 convicted of felony grand theft, was incarcerated as a result, was later charged in 1971 with six [sic] counts of robbery, later pleaded guilty to misdemeanor drunk driving in 1982, and then had his probation revoked in 1982, and given that Ary failed to disclose this information either on his juror questionnaire or during voir dire in petitioner’s trial, what were Ary’s reasons for failing to disclose these facts? Was the nondisclosure intentional and deliberate? Considering Ary’s reasons for failing to disclose these facts, was his nondisclosure of the above facts indicative of juror bias? Was Ary actually biased against petitioner?”
Ary was the first witness to testify at the evidentiary hearing, and he admitted he had been arrested and convicted of a felony in 1964 and served six months in jail. Ary also was arrested and charged with robbery in 1971, but was exonerated when the actual culprit was apprehended. In 1982, he was arrested for DUI and pleaded guilty to a misdemeanor; his punishment included participation in Alcoholics Anonymous.
Ary further explained that when he was called for jury duty in petitioner’s case, he called the telephone number on the jury summons and revealed his 1964 felony conviction, but was told that because he entered military service just after his conviction, his conviction had been expunged and “that I don’t have to be concerned with that as having a record.” When asked why he did not reveal his 1971 arrest for robbery, as he was clearly “accused” of the crime before his eventual exoneration, he explained that he understood question No. 25 as asking whether he had suffered any convictions, not whether he had merely been accused of a crime, that he had simply read the question incorrectly, and that he had “made a mistake.” Regarding his failure to reveal his guilty plea to DUI in 1982, he first stated, “I feel that I should have never gotten that” because he had consumed only two beers in a five-hour period, but then backtracked and said he did not consider the DUI charge to be a criminal matter and it did not seem important enough to mention.
The referee found that Juror Ary honestly misunderstood question No. 25 as asking only for criminal convictions, not merely criminal accusations. “Clearly, the question was not limited to convictions, since it not only used the word ‘accused, ’ but also added the phrase, ‘even if the case did not come to court.’ On the other hand, there was no further explanation provided, no additional questions on the subject, and no inquiry during voir dire that might have provided clarification. Moreover, Mr. Ary expressed the same misunderstanding of the question while testifying at the hearing. Thus, while his interpretation of the question was certainly unreasonable, it is not unbelievable under the circumstances. Since his only convictions had been set aside, he believed he had none to report.”
The referee further found that because Ary “believed” he was answering question No. 25 accurately, “his nondisclosure was not intentional and deliberate, ” that such nondisclosure was therefore “not indicative of juror bias, ” and that Ary was not actually biased against petitioner.
Petitioner raises several exceptions to these findings, but we find none meritorious. First, he contends the referee improperly limited his ability to present evidence relevant to the question of prejudice flowing from Juror Ary’s various concealments, having erroneously decided “that any evidence of Ary’s actions that demonstrated juror bias during the trial [was] barred.” As we explain, we conclude petitioner did not preserve this claim for our review and that it lacks merit in any event.
Prior to calling the first witness, petitioner’s habeas corpus counsel argued that to prove bias, an issue we had asked the referee to address, she “need[ed] to be permitted to establish by testimony the underlying elements of that question.” The referee responded to this argument: “Actually, the Supreme Court has given me very specific guidances [as] to just what I am supposed to determine. The issue of bias, it asks me in Question No. 1, was Mr. Ary’s... nondisclosure of certain facts indicative of juror bias and was he actually biased against petitioner, and I think you are talking about... two different concepts, implied bias and actual bias, and the same questions are asked in Question No. 2, and that’s where those issues come in, and so I agree that those are relevant, but [proving the juror was] prejudice[d] is a different issue.” (Italics added.) Counsel agreed.
Later, when questioning Ary, counsel asked: “Mr. Ary, do you recall asking the [trial court] probably in writing during the guilt phase how can a homeless person obtain private lawyers or are they court appointed?” When the referee sustained the People’s objection, counsel asked: “Is that as to all of the questions [Juror Ary] asked? What I’m trying to establish, Your Honor, is I am going to ask the witness if he remembers question by question because he does not remember at this point....” The following colloquy then occurred:
“THE COURT:... I have very specific areas of inquiry, and that is not one of them, and I understand that there is a chance that this might peripherally relate to one of the areas of inquiry that is spelled out by the Supreme Court. I mean, it could, but I don’t see it, so I might need you to explain it to me.
“[COUNSEL]: Your Honor, I believe it goes to bias, and if you look at the question—
“THE COURT: I am going to ask you to—I’m going to sustain the objection now. I am going to sustain it now. That’s not to say that if at a later time based on other evidence that is presented it becomes clear what the link might be, I won’t let you ask it again, but as of right now, it’s sustained.” (Italics added.)
Counsel did not later attempt to explain the link between the intended line of questioning and a theory of admissibility. The referee and the parties had earlier agreed that no opening briefs would be filed before the reference hearing, so no fuller explanation of counsel’s theory of admissibility was available until her briefs before this court. Here, counsel argues the referee erroneously interpreted our order of reference as limited to Ary’s state of mind at the time of the concealment, and thus limited to evidence of possible bias “at the time he omitted material evidence from the questionnaire.” According to petitioner, the referee’s interpretation of our order led him, for example, to exclude evidence of Ary’s “labeling certain jurors as ‘naive’; any discussion among some of the jurors concerning the lying in wait special circumstance; Ary’s note to the trial court expressing his inappropriate hostility to petitioner.” But this theory was not explained to the referee, who specifically indicated he was sustaining the People’s objection subject to a later demonstration of how the evidence was relevant. As petitioner did not thereafter try to show the link between the excluded evidence and a material fact to be proved at the hearing, he forfeited the claim. (People v. Holloway (2004) 33 Cal.4th 96, 133 [where a trial court tentatively excludes evidence and states counsel is free to later ask the court to change its ruling, failure to do so forfeits the issue for appeal]; People v. Ennis (2010) 190 Cal.App.4th 721, 735-736 [same].)
Were we to find the issue was properly preserved for our review, we would find it meritless. For example, question No. 1 of our September 9, 2009, order, which concerns Ary’s failure to reveal his criminal past, directed the referee to determine “what were Ary’s reasons for failing to disclose these facts? Was the nondisclosure intentional and deliberate? Considering Ary’s reasons for failing to disclose these facts, was his nondisclosure of the above facts indicative of juror bias? Was Ary actually biased against petitioner?” (Italics added.) Read in context, the question did not ask the referee to answer whether, as a global matter, Ary was a biased juror. Instead, the referee reasonably interpreted the order’s language to direct him to determine whether Ary’s concealment of his criminal past demonstrated that he was biased. The language of the other questions is subject to the same interpretation. Accordingly, we reject petitioner’s first exception, both because it was forfeited and because it is meritless.
Second, petitioner contends the referee was mistaken when he concluded Ary “did not disclose his own criminal history on voir dire because he was not asked about it.” (Italics added.) Clearly question No. 25 asked jurors such as Ary to disclose their criminal history. But immediately following the passage in the referee’s report to which petitioner excepts, the report explains that “[t]he only inquiry into this subject was a single question in the written questionnaire....” Accordingly, the referee must have meant that Ary was never asked orally about his criminal past on voir dire, a circumstance confirmed by the transcript of the voir dire proceedings.
Third, petitioner excepts to the referee’s findings because the referee “failed to give any weight” to the fact Ary gave several different reasons for his failure to disclose his criminal history. Further, according to petitioner, “[t]he hearing record reflects Ary’s complete lack of credibility.” To be sure, Ary made some inconsistent statements, some of which could have undermined his believability, but “[t]he main reason for an evidentiary hearing is to have the referee determine the credibility of the testimony given at the hearing. [Citation.] Because the referee observes the demeanor of the witnesses as they testify, we generally defer to the referee’s factual findings and ‘give great weight’ to them when supported by substantial evidence.” (In re Bacigalupo, supra, 55 Cal.4th at p. 333.) “ ‘Deference to the referee is particularly appropriate on issues requiring resolution of testimonial conflicts and assessment of witnesses’ credibility, because the referee has the opportunity to observe the witnesses’ demeanor and manner of testifying.’ ” (In re Price (2011) 51 Cal.4th 547, 559.)
Although Ary made some inconsistent statements, “we assume the referee considered those discrepancies, along with [the witness’s] demeanor, while testifying, before concluding he was a credible witness.” (In re Bacigalupo, supra, 55 Cal.4th at p. 338 (conc. opn. of Liu, J.).) Accordingly, we reject petitioner’s contention that the referee’s findings as to Ary’s credibility are unsupported by substantial evidence. (In re Hardy (2007) 41 Cal.4th 977, 993 [we give great weight to findings of the referee that are supported by substantial evidence].) Instead, we conclude that in light of all the evidence, including Ary’s demeanor while testifying, the referee reasonably credited Ary’s explanation for his failure to disclose his own criminal history when answering question No. 25 on the jury questionnaire.
Accordingly, we reject petitioner’s exceptions to the referee’s findings and instead accept them, supported as they are by substantial evidence.
2. Ary’s Failure to Reveal His Relatives’ Criminal History
In addition to inquiring about the juror himself, question No. 25 also asked whether Ary had any relatives who had been “ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT COME TO COURT.” As noted, Ary answered “NO.” Petitioner alleged in his habeas corpus petition that Ary failed to disclose that his two sons, Pervies Lee Ary, Jr. (Pervies Jr.), and Pervies Lee Ary II (Pervies II),  as well as two other relatives, had significant criminal histories. Petitioner’s documentary support for these allegations shows Pervies Jr. (1) was charged in 1986 with four counts of transportation of narcotics, possession, and possession for sale, and pleaded guilty to all four counts in return for being sentenced to three years’ probation on conditions including 210 days in jail; (2) pleaded guilty the same day in a different case to possession for sale of cocaine and was sentenced to probation on conditions including a consecutive term of 150 days in jail; (3) pleaded guilty in 1987 to sale of marijuana, was sentenced to three years in custody, had the sentence suspended, and was committed to the California Rehabilitation Center in Norco due to his narcotics addiction; and (4) pleaded guilty in 1990 to driving with a suspended license, a misdemeanor.
Documents also indicate Ary’s second son, Pervies II, had been charged in 1993 with misdemeanor battery and that this criminal charge had been filed the same day Ary was questioned on voir dire in petitioner’s case. The battery charge, however, was ultimately dismissed.
In his declaration, Ary also declares that “[o]ne of my first cousins got a life sentence during the 1950s for killing a man.” Trial Attorney Cannady declares he was unaware of the arrests and convictions of Pervies Jr., but makes no mention of Ary’s cousin. Cannady declares he would have used a peremptory challenge to remove Ary as a juror had he known these facts.
Respondent, in the return, agreed that a dispute of material fact existed regarding whether “Ary deliberately misrepresented his family’s prior criminal records.” We thereafter asked the referee to answer these questions: “Given that two of Juror Pervies Lee Ary’s sons had criminal records, and that one of Ary’s cousins was convicted of murder, and given that Ary failed to disclose this information on either his juror questionnaire or during voir dire in petitioner’s trial, what were Ary’s reasons for failing to disclose these facts? Was the nondisclosure intentional and deliberate? Considering Ary’s reasons for failing to disclose these facts, was his nondisclosure of the above facts indicative of juror bias? Was Ary biased against petitioner?”
At the evidentiary hearing, Ary confirmed he has two sons: Pervies Jr., born in 1964, and Pervies II, born in 1974. Pervies Jr. was arrested in the 1980s on a drug-related charge; Ary remembered because Pervies Jr.’s mother had called him at the time and asked him to help with raising bail. Ary testified that he was estranged from Pervies Jr. and had learned the details of the arrest “after I was a juror” because he “wasn’t around” his son. He also testified, however, that he could not say if he had learned of Pervies Jr.’s felony conviction before serving as a juror in petitioner’s trial.
Ary’s younger son, Pervies II, also had trouble with the law. Sometime before petitioner’s trial, Ary accompanied his son to juvenile court to face a misdemeanor charge connected to an incident of road rage. When Pervies II failed to complete an essay assigned as a condition of probation, he was arrested and committed to juvenile hall. At the evidentiary hearing, Ary explained that he did not reveal Pervies II’s criminal history on his jury questionnaire because, in his judgment, “it didn’t go to court, so I said, well, that’s not even important.” Clarifying his comment, Ary said he thought he need not mention the matter because it was a juvenile proceeding.
Ary testified at the hearing that he had both a nephew and a cousin who were serving sentences of life without parole for murder, and admitted he had revealed neither relative on his jury questionnaire. He explained the omissions by saying, “I didn’t think about it, ” because the nephew was his ex-wife’s sister’s son and Ary did not have direct contact with him, and the ...