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People v. Manibusan

Supreme Court of California

December 2, 2013

The PEOPLE, Plaintiff and Respondent,
Joseph Kekoa MANIBUSAN, Defendant and Appellant.

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[165 Cal.Rptr.3d 9] David S. Adams, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Alisha M. Carlile, Deputy Attorneys General, for Plaintiff and Respondent.


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[314 P.3d 8] A jury convicted defendant Joseph Kekoa Manibusan of two counts of first degree murder and one count each of attempted murder,

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aggravated mayhem, and second degree attempted robbery. It also found true special circumstance allegations of multiple murder, drive-by murder, and felony murder, and enhancement allegations of discharging a firearm from a vehicle causing great bodily injury or death, personal use of a firearm, and a prior juvenile conviction of assault with a deadly weapon causing great bodily injury. It returned a verdict of death for the two murder convictions. After denying the automatic application to modify the verdict (Pen.Code, § 190.4, subd. (e)), [1] the trial court sentenced defendant to death for those murder convictions. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


Defendant's convictions arise mostly from events in Monterey County on the night of January 31, 1998, and the morning of February 1, 1998, during which Priya Mathews and Frances Olivo were shot dead and Jennifer Aninger was severely injured by a gunshot to the head.

A. Guilt Phase Evidence

Only the prosecution introduced evidence during the trial's guilt phase.

1. The 1998 Shootings

On January 30, 1998, defendant attended a party in Seaside with Norman Willover and Adam Tegerdal. They used methamphetamine and stayed awake together through the night and into the next day. Sometime in the late afternoon or [165 Cal.Rptr.3d 10] early evening of January 31, they drove in Tegerdal's 1994 Mercury Cougar to a house in Marina, where Willover retrieved a backpack containing a gun. They also used a small additional amount of methamphetamine. Later that evening, they returned to Seaside and picked up Melissa Contreras near the house of Tim Frymire, where defendant and Contreras were staying. Contreras thought they were going to drink and hang out; she did not know anyone in the car had a gun.

As defendant drove the group to a gas station, he and Willover discussed robbing people. About the time the group arrived at the gas station, Contreras learned of the gun and heard defendant and Willover talk about using it to rob people. At defendant's direction, Contreras took over the car and drove the group around Seaside and Monterey until defendant and Willover, upon spotting a potential robbery victim, told Contreras to park near Jacks Park in Monterey. Defendant and Willover exited the car with the gun in their possession. They returned 10 to 15 minutes later, having found no one to rob.

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Contreras drove the group away, but soon turned the driving over to defendant and entered the backseat. Defendant, after discussing with Willover the possibility of finding [314 P.3d 9] a victim at Monterey's wharf area, drove the group to Monterey's Municipal Wharf II. There, sometime after 11:00 p.m., defendant, Willover, and Tegerdal spotted Aninger and Mathews. After Tegerdal asked if the women were carrying purses, defendant made a U-turn at the end of the wharf so the group could circle back and observe them. He drove past the women and made another U-turn, putting the women on the passenger side of the car, where Willover, wearing a leather glove on one hand and a bandana over his face, was sitting. Defendant stopped the car five to 10 feet away. Willover stuck his head and hand out of the window and said, " give me your money" or " give me the money." The women did not respond. Willover then turned back into the car, toward its other occupants, and said " something like, these bitches are being assholes. They didn't hear me." He then turned back toward the women, pointed his gun at them, and started firing. He fired numerous times, hitting Mathews in the back, the arm, and twice in the left thigh, and hitting Aninger once in the head and once in the upper arm. Mathews died from her wounds. Aninger survived, but sustained brain damage that resulted in an impaired ability to concentrate, memory loss, a lost sense of smell, and lost motor function in her left hand.

Immediately after the shooting, defendant made a U-turn and sped away. Willover said, " we couldn't leave witnesses," and defendant " just kind of laughed" in response. Willover also " bragg[ed] about how long it [had been] since [he had] done that. He said it was like four years. He hasn't done that in four years, and it felt good and ... [defendant] needs to try it." Defendant, Willover, and Tegerdal agreed they needed to change cars to avoid being caught. Defendant drove to Tegerdal's house in Salinas, where they exited the Cougar and entered Tegerdal's Chevrolet Monte Carlo. As Tegerdal drove away, Willover acted " happy," " like he was proud of what he" had done. Defendant also seemed " happy," " like he was proud of" Willover. They congratulated each other on the shooting, giving each other " props." Defendant said " he wanted to have his turn."

At some point, defendant took over the driving and headed back to Seaside. He and Willover discussed finding another victim. Defendant said he wanted " to try to show [Willover] up," because Willover had already shot two people. In Seaside, defendant [165 Cal.Rptr.3d 11] and Willover spotted Olivo standing at the corner of Fremont Boulevard and Amador Avenue. Willover asked defendant if he was going " to do her" or " do it to her" or " shoot her." Defendant nodded, said " watch this," drove around the block, and maneuvered the car so he was closest to Olivo. He stopped the car about eight feet away and silently gestured for Olivo to approach. Olivo approached and looked inside the car. As she did, defendant put his hand out of the window and began shooting. Olivo cried, " please don't," but defendant continued shooting, firing eight or

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nine shots and hitting Olivo three times. One of the shots passed through her heart. She died of her injuries.

Defendant drove away, " laughing about" the shooting. Willover was " laughing with him." They were " taking it like kind of a game." Defendant became upset that he had not fired all of the bullets in the gun's clip. He saw an occupied car parked along the roadside and, stating that he " might as well get rid of the rest of the bullets," fired the remaining bullets into it.

When the parked car's occupants began chasing defendant in their car, defendant drove to the Fort Ord home of family friends Anthony and Linda McGuiness, where his father was living. There, Willover and Tegerdal removed shell casings from the car. Awakened by the group's arrival, Anthony McGuiness came out of his bedroom and found the group seated in his living room. Defendant said his car had run out of gas and asked for a ride to a friend's house in Seaside. Anthony agreed and, following defendant's directions, drove defendant past the scene of the Olivo shooting and on to Tim Frymire's house in Seaside, where defendant was living.

Defendant arrived at Frymire's house about 3:00 a.m. Upon entering, he indicated he wanted to speak with Frymire privately. He seemed " real antsy" and " [k]ept looking out the window." He started saying things [314 P.3d 10] Frymire " didn't want to hear," and asked Frymire if he still had the .22-caliber shells defendant had given him some months earlier. Frymire replied, " no," and told defendant that, if he had a gun in his pants, he needed to take it outside. Defendant then briefly left the house. After returning, he continued to look out the windows. Frymire then asked defendant if he would " feel better about putting [the gun] somewhere else," and offered to let defendant put the gun in the trunk of his car and give defendant the key. The two exited the house and defendant put a semi-automatic handgun in the trunk of Frymire's car. A few hours later, defendant left in the car with Frymire's nephew and another man. The latter two later returned in the car to Frymire's house, without defendant or the gun. That night, after returning to Frymire's house, defendant, with " a smile on his face," repeatedly pointed alternatively at his chest and at the television as he watched a television news report about the shootings. A short time later, Frymire contacted Seaside police to report his suspicion that defendant had been involved in the shootings.

On February 4, 1998, Willover asked Joshua Riley to store at his house a dark-colored backpack containing a loaded .22-caliber semiautomatic handgun, some ammunition magazines, and several boxes of bullets. He told Riley the gun was " heated," meaning it had been involved in some kind of trouble. That night, police went to Riley's residence, having learned from interviewing Willover about the gun's possible location. There, they recovered the

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backpack, a gun, ammunition clips, and some extra ammunition. Ballistics tests showed the gun matched bullets recovered [165 Cal.Rptr.3d 12] at the scene of the shootings and from the victims' bodies. It was the same type of gun Frymire had earlier seen defendant place in the trunk of Frymire's car.

That same day, police arrested defendant at Frymire's house. A few days later, defendant called Frymire from prison and asked Frymire if he was " being true." Frymire understood defendant to be asking whether he was keeping quiet and not " ratting him off." Defendant made a similar call to Contreras.

2. The 1997 Robbery Attempt

On October 14, 1997, defendant and Tegerdal were driving around Monterey talking about their lack of money. At a shopping center, defendant got Tegerdal to stop the car, exited, ran up to a woman, and tried to take her purse. The woman, though falling to the ground in the struggle, held on to her purse. Defendant gave up, ran back to the car, and drove away with Tegerdal.

B. Penalty Phase Evidence

During the penalty phase, the prosecution introduced victim impact evidence from Mathews's sister and from Olivo's husband, two of her four children, and her sister-in-law. Pursuant to section 190.3, factor (b) (factor (b)), it also introduced evidence of the following prior conduct: (1) defendant frequently beat up the mother of his son, including in August 1995 when he punched her in the face and left her with two black eyes, a swollen nose, and a bump under her eye; (2) in January 1995, after becoming enraged during an argument with his twin sister, defendant knocked her to the floor and kicked her, causing her to lose consciousness; (3) defendant, concealing a sawed-off .22-caliber rifle in his waistband and .22-caliber ammunition in his pocket, went looking for his sister at the hospital where she was receiving treatment for the injuries he had inflicted; (4) defendant, having been taken by police to a police station and later released, returned to the hospital and told the security guard who had initially pointed him out to police, " snitches don't last; " (5) during a traffic stop in January 1997, police found defendant in the backseat of the stopped car with one round of ammunition in his pocket, and found under the driver's seat in front of him two handguns, one of which used bullets of the same caliber as the bullet found in defendant's pocket; (6) during a traffic stop in July 1997, police arrested defendant on a warrant and found a knife in a sheath near his leg; (7) during a traffic stop in October 1997, police found two knives, one near defendant; (8) in June 1998, when Willover was placed in a holding cell with defendant, defendant ran over to Willover and began hitting [314 P.3d 11] him repeatedly, leaving him with a bloody nose

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and torn clothing; (9) in August 2000, while a jail inmate, defendant participated in a riot, refused to comply with orders to leave his cell, and charged an officer who had used pepper spray to induce compliance, hitting his protective shield and cracking it; and (10) defendant later wrote a letter to a friend bragging about his role in the riot and stating that he liked to " get rowdy" with the prison guards.

Defendant presented testimony from 23 witnesses regarding (1) his history of drug addiction, including his frequent use of methamphetamine, (2) the effects of methamphetamine, and (3) his family history and upbringing, and the effect of that history and upbringing.

In rebuttal, the prosecution called an expert who testified that he had examined various reports and transcripts of witness testimony and had found no evidence defendant was under the influence of drugs when he committed the crimes.

[165 Cal.Rptr.3d 13] II. DISCUSSION

A. Juror No. 58

Defendant alleges numerous errors in the trial court's decision to allow Juror No. 58 to remain on the jury despite her alleged fear for her safety. For reasons set forth below, his claims fail.

1. Background

On October 2, 2000, when the jury returned for its second day of guilt phase deliberations, the jury foreperson, Juror No. 58, gave the court a letter, stating: " [I]t has been brought to my attention that my anonymity as a juror for [this case] has been compromised. [¶] On Thursday, September 28th, a person whom I know personally walked into the courtroom to observe the trial. As you may expect, this came as a shock to me. However, I dismissed the incident as a coincidence. However, this weekend I became aware of this person as a close friend of both the defendant and his family. Additionally, I became aware of the fact that my name has already been revealed to the members of his family. [¶] As you may understand, this does not make me feel comfortable to continue as a juror in this case. My safety and the safety of my family may be in jeopardy because of this incident. Please accept my request to step down as a juror on this case."

Upon the court's inquiry out of the other jurors' presence, Juror No. 58 first explained that (1) the person to whom her letter referred— Christy Page— was a friend of a friend named Jessica, (2) during conversations with

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Jessica over the weekend, Juror No. 58 learned that Page was a good friend of defendant's mother, recognized Juror No. 58 when she came to court, and talked about Juror No. 58 with a member of defendant's family, and (3) upon learning this information, Juror No. 58's husband expressed concern about their family's safety and urged Juror No. 58 to ask the court to excuse her from the jury. Juror No. 58 then added that the information regarding Page would not affect her verdict or impact her ability to be impartial or to consider the evidence objectively, and that she did not want the court to excuse her from the jury; that she was not concerned about the possibility of retribution for her jury service, and became less concerned the more she thought about it; that she had given the letter to the court just so it would be aware of the situation; and that she had not discussed the details of the case with anyone or received any information from Jessica about defendant or his family.

Based on these events, defendant asked the court to replace Juror No. 58 with an alternate, arguing that the information raised substantial doubt as to her ability to be fair. The trial court denied the request, citing Juror No. 58's answers and demeanor and finding " no demonstrable reality that she [was] unable to perform her duties as a juror."

Late that afternoon, the court received a note from the jury signed by Juror No. 58 stating: " Can we switch from the original foreperson to the co foreperson for purposes of reading (and signing) the verdict(s)." The court replied that the jury had discretion to change the foreperson during deliberations. Defendant then moved for a mistrial, arguing that the request was evidence Juror No. 58, [314 P.3d 12] despite her earlier assurance, was afraid to serve on the jury and had disclosed her concern to other jurors. The trial court denied the motion, finding defendant's arguments to be unsupported speculation and commenting that requests for changes in jury forepersons " come up all the time."

The jury returned its verdict shortly thereafter. Defendant then asked the court to remove Juror No. 58 from the [165 Cal.Rptr.3d 14] penalty phase jury. The trial court denied the motion, noting the absence of any new supporting information. After the penalty phase, it also denied defendant's motion for new trial, which he based in part on Juror No. 58's participation in deliberations.

2. Discussion

Defendant first asserts the trial court failed adequately to investigate the possibility of juror bias, incompetence, or misconduct. He concedes the court " proceeded properly at first" in conducting a hearing upon receiving the letter from Juror No. 58. However, it erred, he argues, in failing to conduct a

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second inquiry upon receiving the jury's subsequent request to " switch from the original foreperson to the co foreperson for purposes of reading (and signing) the verdict(s)." This request, he contends, " was an overt demonstration that," despite Juror No. 58's earlier assurances, " the fear of reprisal that she had [earlier] articulated ... was still active in her thought process and affecting her actions as a juror." By creating a reason to doubt her impartiality, the request " reinvigorated" the court's duty to investigate possible misconduct.

Defendant's claim fails. As we have explained, " not every incident involving a juror's conduct requires or warrants further investigation." ( People v. Cleveland (2001) 25 Cal.4th 466, 478, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) " The decision whether to investigate the possibility of juror bias, incompetence, or misconduct— like the ultimate decision to retain or discharge a juror— rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶] ... [A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘ good cause’ to doubt a juror's ability to perform his duties and would justify his removal from the case. [Citations.]" ( People v. Ray (1996) 13 Cal.4th 313, 343, 52 Cal.Rptr.2d 296, 914 P.2d 846.) Here, the note from the jury did not provide the court with any information that, if proven to be true, would constitute good cause to doubt Juror No. 58's ability to perform her duties. It did not disclose, or even hint at, the reason for the request to change forepersons. Moreover, even were the note adequate to support an inference that Juror No. 58, because of safety concerns, did not want to sign and announce the verdict as foreperson, that inference did not give the court reason to doubt her unequivocal assurances to the court earlier that day that the information regarding Page would not affect her verdict or impact her ability as a juror to be impartial or to consider the evidence objectively. As we have explained, deliberating jurors " may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations." ( Cleveland, supra, 25 Cal.4th at p. 476, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) Therefore, to ensure the sanctity and secrecy of the deliberative process, a trial court's inquiry into grounds for discharging a deliberating juror should be as limited as possible, and should cease once the court is satisfied that the juror in question " is participating in deliberations and has not expressed an intention to disregard the court's instructions or otherwise committed misconduct, and that no other proper ground for discharge exists." ( Id. at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) Given these principles and Juror No. 58's assurances, the trial court did not abuse its [165 Cal.Rptr.3d 15] discretion in failing to conduct a second inquiry upon receiving a request from the jury to change foreperson.

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Nor did the court abuse its discretion in failing to conduct further inquiry when, after return of the verdicts, defendant requested Juror No. 58's removal from the penalty [314 P.3d 13] phase jury. As defendant concedes, the only new information he offered as a basis for this request was the fact that the jury had returned its verdicts only about 15 minutes after receiving the court's response about switching forepersons. That information added nothing to the question of Juror No. 58's ability to perform her duties. Accordingly, the court did not abuse its discretion in declining to inquire further into the matter.

As for the denial of his new trial motion, defendant relies on three sworn declarations he filed with the motion. In one, a defense investigator stated that Juror No. 58 said that, while she was at a youth soccer game sometime in October 2000— she could not recall whether trial was in progress at the time— her husband told another parent she was a juror in the case, and the other parent, who was a deputy sheriff, replied that he knew defendant. In a second, another juror in the case stated that, on the day of the verdicts, Juror No. 58 " told [the other jurors] that she did not want to read the verdict because she knew someone who had a connection with the Manibusan family and she feared for her safety." The declarant juror understood this statement to mean that Juror No. 58 " feared that she might be in danger later on if she read the verdict." In the third declaration, Christy Page stated (1) two to four weeks after appearing in court, she had a conversation with Jessica, who was Juror No. 58's best friend, (2) during that conversation, Jessica told Page about a conversation Juror No. 58 said she had had with a deputy sheriff at a youth baseball game, (3) Juror No. 58 told Jessica that, at the game, the deputy sheriff told Juror No. 58 that, during a conversation with defendant, defendant said " he had killed that woman," he " would do it again" if " he was out of jail," and he " had no remorse and did not care" and " would not change a thing." Defendant also relies on the unsworn statement his counsel made in the new trial motion that, sometime after trial, Juror No. 58 " spoke[ ] to" a defense investigator and " told" him " that during deliberations on the morning of the day that the guilty verdicts were rendered she told the other jurors that she did not want to sign the verdict and she probably mentioned that she was concerned for her personal safety."

In the trial court, defendant's counsel explained he was arguing, not that the declarations warranted granting a new trial, but only that they were sufficient to compel the court to conduct further inquiry. Similarly, on appeal, defendant does not argue the declarations necessarily warranted Juror No. 58's dismissal. Rather, he argues that, in light of the new information the declarations presented, the trial court erred in failing to conduct further inquiry. In his view, " [w]ith the new facts showing that Juror No. 58 did inform the jury that she was afraid of retaliation and why, and also that she discussed the case outside the jury room, with her husband and friend, and possibly even with a sheriff's deputy, the totality of the circumstances showed

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that the possibility of misconduct was based on more than mere speculation and thus demanded further investigation."

Defendant's argument fails. The declarations of Page and the defense investigator, and the statements of counsel in the motion, contain hearsay. Hearsay evidence offered in support of a new trial [165 Cal.Rptr.3d 16] motion that is based on alleged jury misconduct ordinarily is insufficient to establish an abuse of discretion in either denying the motion or declining to conduct an evidentiary hearing. ( People v. Dykes (2009) 46 Cal.4th 731, 810, 95 Cal.Rptr.3d 78, 209 P.3d 1; People v. Avila (2006) 38 Cal.4th 491, 605, 43 Cal.Rptr.3d 1, 133 P.3d 1076; People v. Carter (2003) 30 Cal.4th 1166, 1216-1217, 135 Cal.Rptr.2d 553, 70 P.3d 981; People v. Hayes (1999) 21 Cal.4th 1211, 1256, 91 Cal.Rptr.2d 211, 989 P.2d 645; People v. Cox (1991) 53 Cal.3d 618, 696-700, 280 Cal.Rptr. 692, 809 P.2d 351( Cox ).) Defendant offers no persuasive basis for deviating from this general rule. Counsel's statements are insufficient for the additional reason that they are unsworn. ( People v. Dykes, supra, 46 Cal.4th at pp. 810-811, 95 Cal.Rptr.3d 78, 209 P.3d 1.) The juror's declaration, though admissible to the extent it references overt acts— i.e., statements, conduct, conditions, or events that are open to sight, hearing, and the other senses— is inadmissible to the extent it indicates what the juror " understood" [314 P.3d 14] Juror No. 58's statement during deliberations to mean. (Evid.Code, § 1150; People v. Steele (2002) 27 Cal.4th 1230, 1261, 120 Cal.Rptr.2d 432, 47 P.3d 225 [jurors' statements about " their understanding of the meaning of a life sentence" inadmissible]; id. at p. 1266, 120 Cal.Rptr.2d 432, 47 P.3d 225.)

Insofar as the juror's declaration purports to recount what Juror No. 58 " told" the other jurors about not wanting to read the verdict, it fails to establish error. A court must hold an evidentiary hearing on alleged jury misconduct only when the defendant shows " a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the party's evidence presents a material conflict that can only be resolved at such a hearing." ( People v. Hedgecock (1990) 51 Cal.3d 395, 419, 272 Cal.Rptr. 803, 795 P.2d 1260( Hedgecock ).) These restrictions are necessary because allowing routine postverdict juror examinations " ‘ would open the door to harassment of jurors and ... ultimately damage the jury process and the administration of justice.’ [Citation.] ... [O]nce aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service.' [Citation.]" ( Cox, supra, 53 Cal.3d at p. 699, 280 Cal.Rptr. 692, 809 P.2d 351.) Moreover, " [t]o the extent jurors might seek to guard against intrusive posttrial inquiry by counsel or the court, thorough and penetrating discussion of the merits of the case might suffer." ( Id. at p. 700, 280 Cal.Rptr. 692, 809 P.2d 351.) Given these principles and Juror No. 58's assurances to the court during deliberations that the information regarding Page would not affect her verdict or impact her ability as a juror to be impartial or to consider the evidence objectively, the

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trial court did not err in finding the information about Juror No. 58's reluctance to read the verdict as foreperson insufficient to warrant further inquiry. Indeed, in his new trial motion, defendant did not even cite Juror No. 58's declaration in support of his argument regarding Juror No. 58. On this issue, the motion cited only his counsel's unsworn statements about the posttrial conversation the defense investigator purportedly had with Juror No. 58. It cited the juror's declaration only in support of other, unrelated arguments. Accordingly, defendant has not established that the trial court abused its discretion in declining to inquire further regarding Juror No. 58's ability to serve.

Finally, defendant's claim fails because the premise underlying it— that a juror's fear of a defendant establishes bias or [165 Cal.Rptr.3d 17] other grounds for discharge— is faulty. In People v. Navarette (2003) 30 Cal.4th 458, 500, 133 Cal.Rptr.2d 89, 66 P.3d 1182, we held that the trial court had not abused its discretion in declining to discharge a juror who had expressed fear of the defendant, explaining: " Defendant assumes that, because the juror had concerns about his family's safety and the safety of his property, he was therefore biased against defendant, requiring his removal. The record belies this assumption. The court specifically asked the jurors to report if they could no longer be fair and unbiased, and [the juror in question] did not pursue the matter further...." Again, given Juror No. 58's earlier verbal assurances to the court about her ability as a juror to deliberate impartially notwithstanding any fear of serving on the jury, the trial court did not abuse its discretion in concluding that the declarations did not warrant further inquiry into the issue. (See also People v. Brown (2003) 31 Cal.4th 518, 581-582, 3 Cal.Rptr.3d 145, 73 P.3d 1137 [trial court did not abuse its discretion in declining to conduct evidentiary hearing, notwithstanding declarations stating that " [a]ll 12 jurors expressed concern that defendant's gang would retaliate against them as a result of the verdict" and that one juror thought he might " have been followed by a gang member or a member of defendant's family" ].)

B. Jurors' Consideration of Prison Conditions

Defendant asserts the trial court should have granted a new penalty phase trial in light of evidence that, during the penalty phase, the jurors improperly solicited and received information regarding prison conditions. He relies on the sworn declarations of a defense investigator and Juror A.G. In the latter, Juror A.G. stated that (1) Juror R.M. [314 P.3d 15] worked at a prison and provided " a lot of information about what life in prison was like for inmates," (2) this information " showed me that while life in prison isn't much of a life, it is still a life," and (3) this information was " [o]ne of the most compelling arguments that may have convinced the jury to vote for death." In the former, a defense investigator reported the following about his posttrial conversations

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with jurors: (1) Jurors D.S. and No. 58 said that Juror R.M. was asked questions about prison life when it became known he worked in state prison; (2) according to Juror No. 58, Juror R.M. said that prison was hard for some inmates, but not for others, and that inmates received cable television. Defendant asserts that the jury's consideration of this information during deliberations " constituted grave misconduct" because, pursuant to the trial court's order, the parties presented at trial no evidence of conditions in prison.

Defendant's argument fails. The information on this subject in the defense investigator's declarations was hearsay, which, as earlier explained, ordinarily is insufficient to establish an abuse of discretion in denying a motion for new trial that is based on alleged jury misconduct. ( People v. Dykes, supra, 46 Cal.4th at p. 810, 95 Cal.Rptr.3d 78, 209 P.3d 1.) Again, defendant offers no persuasive basis for deviating from this general rule. Regarding Juror A.G.'s declaration, it was inadmissible— and thus insufficient to establish an abuse of discretion— insofar as it purported to state, or speculate on, the effect of the information on his own and other jurors' subjective reasoning processes. (Evid.Code, § 1150; People v. Steele, supra, 27 Cal.4th at pp. 1261, 1266, 120 Cal.Rptr.2d 432, 47 P.3d 225 [statements about the effect on deliberations of certain jurors' comments are inadmissible].) Thus, the trial court could not consider the statement that the information showed Juror A.G. " that while life in prison isn't [165 Cal.Rptr.3d 18] much of a life, it is still a life," and was " [o]ne of the most compelling arguments that may have convinced the jury to vote for death."

All, then, that is left to support defendant's argument is Juror A.G.'s statement that Juror R.M. provided " a lot of information about what life in prison was like for inmates." In People v. Pride (1992) 3 Cal.4th 195, 10 Cal.Rptr.2d 636, 833 P.2d 643, we rejected a similar jury misconduct claim where a juror known by other jurors to be a prison cook " volunteered that prisoners sentenced to death are ‘ watched’ 23 hours a day and ‘ allowed to exercise’ only 1 hour a day, whereas life prisoners are housed in a ‘ mainline setting’ and have a ‘ far greater opportunity to escape.’ " ( Id. at p. 267, 10 Cal.Rptr.2d 636, 833 P.2d 643.) We explained: " [L]ay jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process. ‘ That they do so is one of the strengths of the jury system. It is also one of its weaknesses.... Such a weakness, however, must be tolerated.’ [Citations.] Otherwise, few verdicts would stand. [¶] These principles were not offended here. The average juror undoubtedly worries that a dangerous inmate might escape. While [the juror's] statements elaborating on this theme were purportedly based on his experience inside the prison system, he only said what any citizen might assume was true— that inmates sentenced to death are subjected to the tightest form of security and that they have fewer opportunities to escape than other inmates. No misconduct or presumption of prejudice appears." ( Id. at p. 268, 10 Cal.Rptr.2d 636, 833 P.2d 643.) Similarly, the average juror undoubtedly wonders what life in prison

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is like for inmates. To the extent Juror R.M. provided information about this subject based on his own experience inside the prison system, nothing suggests he provided information that any citizen might not either assume to be true or already know from the many available sources of information about life in prison, including television, the internet, and other media. No misconduct or presumption of prejudice appears. (See In re Boyette (2013) 56 Cal.4th 866, 893, 157 Cal.Rptr.3d 163, 301 P.3d 530 [had jurors told other jurors what they had learned about prison life from watching movie, " no issue of misconduct or prejudice would have arisen" ]; People v. Yeoman (2003) 31 Cal.4th 93, 162, 2 Cal.Rptr.3d 186, 72 P.3d 1166 [" ‘ [j]urors cannot be expected to shed their backgrounds and experiences at the door of [314 P.3d 16] the deliberation room’ " and, given " common knowledge among laypersons" about the effect of drugs, jurors recounting their personal experiences involving drugs did not commit misconduct].)

Nor, contrary to defendant's assertion, did the trial court abuse its discretion in not holding an evidentiary hearing on the alleged misconduct of Juror R.M. As we have explained, an evidentiary hearing on alleged jury misconduct " should not be used as a ‘ fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." ( Hedgecock, supra, 51 Cal.3d at p. 419, 272 Cal.Rptr. 803, 795 P.2d 1260.) For reasons detailed above, defendant failed to make this showing. Moreover, even had he done so, because the evidence did not " present [ ] a material conflict that [could] only be resolved at [an evidentiary] hearing," the trial court's decision not to hold such a hearing would not have been an abuse of discretion. ( Ibid.; see also People v. Jones (1997) 15 Cal.4th 119, 195, 61 Cal.Rptr.2d 386, 931 P.2d 960 [even had the defendant made adequate showing of misconduct, " an evidentiary hearing would [165 Cal.Rptr.3d 19] not have been necessary, because the offer of proof did not present ‘ a material conflict that [could] only be resolved at such a hearing’ " ]; People v. Hardy (1992) 2 Cal.4th 86, 174, 5 Cal.Rptr.2d 796, 825 P.2d 781 [" Because no material factual dispute was presented to the trial court, it did not abuse its discretion in declining to hold a hearing...." ].)

C. Jurors' Discussion of Defendant's Failure to Testify

Defendant next asserts the trial court should have granted a new trial, or at least conducted further inquiry into possible misconduct, in light of evidence the jurors discussed during deliberations his failure to testify at trial. He relies on Juror A.G.'s sworn declaration, which stated in relevant part: (1) " The fact that the defendant did not testify came up during deliberations" ; and (2) " It was the general consensus of the jury that if the defendant testified he would subject himself to damage by the prosecutor's questions." He also relies on a

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defense investigator's sworn declaration, which stated in relevant part: (1) Juror No. 58 " told [the investigator] that jurors talked about the fact the defendant did not testify" ; and (2) Juror D.S. " stated that jurors discussed the fact that defendant ... did not testify." According to defendant, the jurors' discussion of this circumstance violated several of his constitutional rights.

Defendant's argument is unpersuasive. The defense investigator's declaration is hearsay, which, as earlier explained, ordinarily is insufficient to establish an abuse of discretion in denying a motion for new trial or conducting an evidentiary hearing based on alleged jury misconduct. ( People v. Dykes, supra, 46 Cal.4th at p. 810, 95 Cal.Rptr.3d 78, 209 P.3d 1.) Again, defendant offers no persuasive basis for deviating from this general rule. Juror A.G.'s declaration, insofar as it indicates that defendant's failure to testify played a role in the jury's deliberations, is entitled to no consideration, because declarations regarding alleged misconduct may not refer to jurors' subjective reasoning processes. (Evid.Code, § 1150; People v. Allen (2011) 53 Cal.4th 60, 75, 133 Cal.Rptr.3d 548, 264 P.3d 336; In re Stankewitz (1985) 40 Cal.3d 391, 398, 220 Cal.Rptr. 382, 708 P.2d 1260.) The juror's ambiguous and nonparticularized statement about the " general consensus of the jury" appears to fall in this category. It does not relate a specific comment that any particular juror made or offer direct quotes or statements of a factual nature, but appears to be Juror A.G.'s subjective characterization of and opinion about what he heard. (See Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1214, 85 Cal.Rptr.3d 506 [" The absence of any supporting detail about the jurors having supposedly ‘ agreed’ to do something contrary to an instruction supports the reasonable inference that the affidavits were mere conclusions about the jurors' mental processes." ].) Insofar as the declaration indicates the jurors discussed defendant's failure to testify, it is admissible to establish misconduct that raises a presumption of prejudice. ( People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425, 58 Cal.Rptr.3d 368, 157 P.3d 973.) However, an independent review of the record shows no [314 P.3d 17] substantial likelihood the misconduct caused actual harm. As we have previously noted, " [i]t is natural for jurors to wonder about a defendant's absence from the witness stand. [Citation.]" ( People v. Loker (2008) 44 Cal.4th 691, 749, 80 Cal.Rptr.3d 630, 188 P.3d 580; see also People v. Deshannon (1970) 11 Cal.App.3d 982, 988, 90 Cal.Rptr. 300 [165 Cal.Rptr.3d 20] [" Every lawyer, indeed anyone with common sense, knows that ... individual jurors do wonder why a presumably innocent defendant does not testify." ].) " ‘ Transitory comments of wonderment and curiosity’ about a defendant's failure to testify, although technically misconduct, ‘ are normally innocuous....' [Citation.]" ( People v. Avila (2009) 46 Cal.4th 680, 727, 94 Cal.Rptr.3d 699, 208 P.3d 634.) The statement that defendant's failure to testify " came up" suggests that any comments about this subject were merely brief and passing observations, and the record offers no basis for concluding otherwise. Moreover, because

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defendant showed neither " a strong possibility" that prejudicial misconduct occurred nor " a material conflict" that could only be resolved at a hearing, the trial court did not abuse its discretion in declining to hold an evidentiary hearing on this issue. ( Hedgecock, supra, 51 Cal.3d at p. 419, 272 Cal.Rptr. 803, 795 P.2d 1260.)

D. Removal for Cause of Prospective Jurors

Defendant next asserts the trial court erred in excusing for cause Prospective Jurors Nos. 24, 199, and 232, based on their views about the death penalty. For reasons explained below, his claim fails.

A trial court may excuse a prospective juror for cause if no reasonable possibility exists the prospective juror could consider imposing the death penalty. ( People v. Schmeck (2005) 37 Cal.4th 240, 262, 33 Cal.Rptr.3d 397, 118 P.3d 451.) The trial court has broad discretion in making this determination. ( People v. Moon (2005) 37 Cal.4th 1, 14, 32 Cal.Rptr.3d 894, 117 P.3d 591.) On appeal, we will uphold the trial court's ruling if the record " fairly support[s]" it, " accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous. [Citations.]" [2]( People v. Mayfield (1997) 14 Cal.4th 668, 727, 60 Cal.Rptr.2d 1, 928 P.2d 485.) Prospective jurors often cannot give unmistakably clear answers as to their ability to impose the death penalty, and the trial court, aided by its assessment of demeanor, is in the best position to assess state of mind. ( People v. Jones (2012) 54 Cal.4th 1, 41, 140 Cal.Rptr.3d 383, 275 P.3d 496.)

Under these principles, defendant fails to show error. In response to questions from the court, from the prosecution, and from defendant's counsel, Prospective Juror No. 24 consistently said that, " as a moral issue," she was " unsure" about both her right and ability to vote for a death sentence. When the trial court explored this subject by asking if there was a reasonable possibility she could consider the death penalty, she replied, " I don't know. I really don't know if I could." Upon the prosecution's questioning, Prospective Juror No. 199, who initially indicated she could consider voting for the death penalty, reversed her position and said she would be unable to return a death verdict in a case of this nature. She again reversed position when defendant's counsel questioned her, explaining that she could consider the death penalty but was likely leaning towards a life sentence. When the trial court said it ...

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