Moore v. Frauenheim

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a California state prisoner who, proceeding with counsel, brings an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the Solano County Superior Court of second degree murder (Pen. Code § 187, subd. (a)) and firearm enhancements (§§ 12022.53 (b)-(d)). The instant habeas petition raises three claims. First, petitioner argues that the state court erred when it concluded that his constitutional rights were not violated in light of a juror's prejudicial statements during deliberations. Second, he argues that the state court of appeal unreasonably concluded that the jury's discussions regarding his failure to testify did not amount to federal constitutional error. Third, petitioner argues that the state court of appeal unreasonably concluded that the instructions on involuntary manslaughter did not relieve the prosecution of its burden of proof on the issue of malice.

         For the reasons stated below, it is recommended that the petition be denied.

         FACTUAL BACKGROUND

         Both petitioner and the respondent accept^[1] (and reproduce in their briefs) the state court of appeal's summation of the facts. ECF No. 1 at 16; ECF No. 19-1 at 9. The court has reviewed the record and, having done so, finds nothing therein that clearly and convincingly rebuts the summation. See Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009) (“Because this initial statement of facts is drawn from the state appellate court's decision, it is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.”). Thus, the summation is reproduced here:

Prosecution Case

On October 23, 2012, at around 7:00 or 8:00 p.m., Moore invited his friend, Timothy W., over to play a video game. Timothy walked to Moore's house in Suisun City. When Timothy arrived at Moore's house, he walked in through the open front door, used the restroom, then returned to the living room and sat down in a tan recliner. Moore was standing by a blue recliner. Brown, who was a friend of Moore's and the girlfriend of Timothy's uncle, was sitting on the couch.^[2] Brown and Moore were acting friendly.

Moore asked Brown to make him a burrito. She agreed and went to the kitchen. Meanwhile, Moore received a text message from his ex-girlfriend, which he showed to Timothy. Immediately thereafter, Moore looked “sad” and “down.” Timothy asked, “can we play the game now[?]” Brown returned from the kitchen, handed Moore a plate with the burrito, and sat down again on the couch. Moore put the plate down and picked up a bottle of tequila, which he guzzled “like it was water.” Moore's sister called and asked to borrow a tool. After Moore refused, his sister hung up. Moore said, “my family hates me” and guzzled more tequila, still appearing sad.

While remaining seated in the recliner, Moore began playing with a butterfly knife. Timothy told Moore, who was two or three feet from him, not to play with the knife because it could “fly out of his hand and cut one of us.” Brown said, “‘he's not going to cut me.'” The knife fell out of Moore's hand and dropped to the floor. Moore stood up and went to a corner of the room, where he picked up a rifle without saying anything.^[3] Moore held the rifle with two hands and banged the barrel of the rifle against his head twice.

Timothy, who was still seated in the tan recliner, told Moore, “put the gun down.” Moore did not and, while standing about one foot away from Brown, aimed it at Brown's front left side. Moore was still using both hands to hold the rifle-one hand was on the front of the gun and the other was on the trigger. Timothy told Moore to take his finger off the trigger. Brown said, “‘he's not going to shoot me.'” Moore “fired the gun.”^[4]

Timothy asked Moore: “Did you shoot her? Did you shoot her? Like are you playing? Are you playing?” After being shot, Brown stood up and said, “‘this mother fucker shot me.'” She slumped and held her side. Moore dropped the rifle, went to Brown, and attempted to stop the bleeding and give her cardiopulmonary resuscitation. Fearing for his own life, Timothy ran to his uncle's house a few blocks away. Because Timothy did not have a cell phone, he called 911 from his uncle's home, telling the dispatcher he witnessed “a white guy” shoot “a black female.” After calling 911, Timothy called his mother and asked her to drive him back to Moore's house. There, Timothy told police he witnessed the shooting.^[5]

Police Investigation

At 8:19 p.m., Moore called 911, telling the operator he killed someone by “accident” and had tried to give her cardiopulmonary resuscitation, but she was going to die. The dispatcher could not understand Moore and hung up after 30 seconds. Moore called back a minute later.

When Suisun City Police Department Officers James Sousa and David O'Brien arrived at the scene, Moore was standing in the doorway, smoking a cigarette, and talking on a phone. Moore was “frantic, confused, crying, ” and had blood on his hands. On the living room floor, Sousa and O'Brien found Brown's unresponsive body. Brown had been shot in the chest above her left breast. A video game controller was found on the tan recliner and a bottle of tequila was found nearby.

The police officers searched “[e]verywhere” for a firearm-inside the house, inside the garage, and outside. It was dark, but Sousa used a flashlight to search the front yard, the backyard, as well as the side yard between Moore's house and a neighbor's house to the east. O'Brien searched the side yard on the west side of the house. No weapon was located.

Later that night, while in a holding cell at the police station, Moore banged on his cell door and spontaneously told a police officer, “I killed her. I did it. He ain't got nothing to do with it.” Moore repeatedly said it was an accident and he did not mean for it to happen. Later, when the same officer transported Moore to county jail, Moore again said the shooting was an accident. Moore, who appeared to be under the influence of alcohol, also said he was going to jail for a long time “because that's what happens when you kill someone.” Forensic pathologist, Susan Hogan, M.D., determined Brown died from a gunshot wound to the chest. Hogan did not observe any soot or stippling on Brown's clothing or body, which she would expect to see if the gun was fired within three feet of the victim.

Defense Case

Moore's next door neighbor came home from his night shift early in the morning on October 24, 2012. Using a flashlight, he looked over Moore's front yard for five minutes but did not see a gun. Around noon, the neighbor went back outside and saw a rifle in Moore's front yard. Police collected the weapon. No latent fingerprints were found on the weapon, a .22-caliber rifle. The rifle had water spots on it that could have been produced by someone cleaning it. Low level DNA mixtures were found on the rifle, but the samples were insufficient for interpretation.

On the night of the shooting, both Moore and Timothy were tested for the presence of gunshot residue.^[6] The results were positive for each. As gunshot residue can be found on a person's hands after firing a weapon or being in the vicinity of a fired weapon, the shooter's identity could not be determined. A blood sample was also taken from Moore at around 10:50 p.m. on October 23. The sample showed Moore had a 0.33 percent blood alcohol concentration (BAC).

The defense firearms expert, criminalist Peter Barnett, examined the rifle and observed it had an intermittent problem where the trigger could be cocked simply by rotating the bolt, rather than pulling it back.^[7] Barnett's test of the rifle's trigger pull showed it requires three pounds of pressure to pull the trigger, which is somewhat lighter than in similar weapons. Barnett opined that if a person were to hold the rifle in the standard way with his finger on the trigger, and another person yanked it out of his hands with a sudden motion, that action could cause sufficient force for the gun to discharge.

Psychiatrist Randall Solomon, M.D., testified as an expert regarding the effects of alcohol on the brain and memory. Solomon testified alcohol can impact memory after as little as two drinks, but the more a person drinks, the more likely it will cause memory problems, such as a “blackout”-a type of amnesia that happens when short-term memories do not get encoded as long-term memories. Short-term memory is not affected by alcohol. A person can still function during a blackout and observers might not know it is happening. Fragmentary blackout is the most common type. It creates holes in memory that a person might not be aware of until asked about something he cannot remember. A complete blackout is a period of no memory at all.

At 0.3 percent BAC, Solomon opined there would be a greater than 50 percent chance of a blackout. Not everyone would experience blackout at that BAC, but drinking very rapidly would also increase the probability. If BAC was at that level three hours after a person stopped drinking, his or her BAC necessarily would have declined to that level from an earlier, higher BAC. If someone was able to remember details an hour or three hours later then he would not have been in a complete blackout, unless he had been rehearsing these details in his short term memory the entire time.

Moore's friend, Rashaun M., ^[8] testified that on the night of the shooting he was at a hospital in San Francisco with his daughter. Rashaun received a phone call from his family that night, during which he spoke to Timothy about what happened. Timothy did not mention a gun. After learning Brown had been shot, Rashaun told Timothy to go back to Moore's house and call the police. Sometime later, Rashaun saw Timothy in person. Timothy then told Rashaun that, when Moore dropped the gun, Timothy picked it up, hopped over the couch, and ran with it to his uncle's home.

Six character witnesses testified they knew Moore to be peaceful, reliable, generous, trustworthy, protective, and honest.

People's Rebuttal Case

Angela M., Rashaun's aunt and Timothy's mother, testified she had been sitting outside the courtroom with Timothy during Moore's trial. Rashaun approached her and said he was going into the courtroom. When Angela asked him not to, Rashaun said, “Auntie, I don't give an ‘F' about [Brown].” He added, “If I get called as a witness, I'm going to lie for my partner, to get my partner off.”

Instructions and Closing Argument

The trial court repeatedly informed the jury of Moore's constitutional right not to testify and that no negative inference could be drawn from Moore's exercise of the right.^[9] The jury also received instructions, among others, on premeditated first degree murder, express and implied malice second degree murder, accidental homicide, and involuntary manslaughter. Moore also requested, and received, an instruction that if, while unconscious as the result of voluntary intoxication, he killed without malice or intent to kill, the crime was not murder, but involuntary manslaughter. The jury was also instructed, as to crimes requiring specific intent, that it could consider the effect of Moore's voluntary intoxication, if any, when determining whether he formed such intent.

During closing argument, the prosecutor maintained Moore was guilty of either first or second degree murder. The People relied on both express and implied malice theories, arguing that Moore's words and actions-aiming the rifle at Brown's chest and pulling the trigger after being warned to put the gun down and take his finger off the trigger-showed either intent to kill or conscious disregard for human life.

Defense counsel contended Moore's behavior after the shooting was inconsistent with malice and showed the shooting was an accident or that, at most, Moore was guilty of involuntary manslaughter if he was either criminally negligent or unconscious due to voluntary intoxication. Counsel also claimed the jury could find the shooting was accidental by inferring Timothy's involvement in a struggle over the rifle. In rebuttal, the prosecutor argued the defense's theory of the case was inconsistent with the evidence.

Verdict

The jury found Moore not guilty of first degree murder, convicted him of second degree murder, and found the firearm enhancements true. Moore filed a motion for new trial, which was denied after an evidentiary hearing. The trial court sentenced Moore to an indeterminate term of 40 years to life in state prison. A timely notice of appeal followed.

ECF No. 20-9, Ex. C, at 2-8.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         I. Applicable Statutory Provisions

         28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review, ” or “by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

         The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785.

         A. “Clearly Established Federal Law”

         The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 7172 (2003). Only Supreme Court precedent may constitute “clearly established Federal law, ” but courts may look to circuit law “to ascertain whether . . . the particular point in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

         B. “Contrary To” Or “Unreasonable Application Of” Clearly Established Federal Law

         Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two clauses of § 2254(d)(1) create two distinct exceptions to AEDPA's limitation on relief. Williams, 529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be given independent effect, and create two categories of cases in which habeas relief remains available).

         A state court decision is “contrary to” clearly established federal law if the decision “contradicts the governing law set forth in [the Supreme Court's] cases.” Id. at 405. This includes use of the wrong legal rule or analytical framework. “The addition, deletion, or alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply controlling Supreme Court law under the ‘contrary to' clause of the AEDPA.” Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 39395 (Virginia Supreme Court's ineffective assistance of counsel analysis “contrary to” Strickland^[10] because it added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California Supreme Court's Batson^[11] analysis “contrary to” federal law because it set a higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533 F.3d at 734 35 (Arizona court's application of harmless error rule to Faretta^[12] violation was contrary to U.S. Supreme Court holding that such error is structural). A state court also acts contrary to clearly established federal law when it reaches a different result from a Supreme Court case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 41213; Ramdass v. Angelone, 530 U.S. 156, 16566 (2000) (plurality op'n).

         A state court decision “unreasonably applies” federal law “if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 52021 (2003). This does not mean, however, that the § (d)(1) exception is limited to applications of federal law that “reasonable jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit's overly restrictive interpretation of “unreasonable application” clause). State court decisions can be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when they fail to give appropriate consideration and weight to the full body of available evidence, and when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388909 (2005); Porter v. McCollum, 558 U.S. 30, 42 (2009).

         The “unreasonable application” clause permits habeas relief based on the application of a governing principle to a set of facts different from those of the case in which the principle was announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA deference does not apply to the federal court's adjudication of the claim. Id. at 948.

         Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399.

         Where the state court's adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is confined to “the state court's actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738 (emphasis in original). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Harrington, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Harrington, 562 U.S. at 101-102.

         C. “Unreasonable Determination Of The Facts”

         Relief is also available under AEDPA where the state court predicated its adjudication of a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly limits this inquiry to the evidence that was before the state court.

         Even factual determinations that are generally accorded heightened deference, such as credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief where the Texas court had based its denial of a Batson claim on a factual finding that the prosecutor's asserted race neutral reasons for striking African American jurors were true. Miller El, 545 U.S. at 240.

         An unreasonable determination of facts exists where, among other circumstances, the state court made its findings according to a flawed process - for example, under an incorrect legal standard, or where necessary findings were not made at all, or where the state court failed to consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox, 366 F.3d 992, 9991001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in a ‘unreasonable determination' of the facts” within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (state court's factual findings must be deemed unreasonable under section 2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper determination” of facts because state courts “refused Killian an evidentiary hearing on the matter”), cert. denied, 537 U.S. 1179 (2003).

         A state court factual conclusion can also be substantively unreasonable where it is not fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S. at 528 (state court's “clear factual error” regarding contents of social service records constitutes unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state court's finding that the prosecutor's strike was not racially motivated was unreasonable in light of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state court unreasonably found that evidence of police entrapment was insufficient to require an entrapment instruction), cert. denied, 540 U.S. 963 (2003).

         II. The Relationship Of § 2254(d) To Final Merits Adjudication

         To prevail in federal habeas proceedings, a petitioner must establish the applicability of one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional invalidity of his custody under pre AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). There is no single prescribed order in which these two inquiries must be conducted. Id. at 736 37. The AEDPA does not require the federal habeas court to adopt any one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

         In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap. Accordingly, “[a] holding on habeas review that a state court error meets the § 2254(d) standard will often simultaneously constitute a holding that the [substantive standard for habeas relief] is satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases, relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321 F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court's failure to conduct a constitutionally sufficient inquiry into a defendant's jury selection challenge, and granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1) unreasonableness in the state court's refusal to consider drug addiction as a mitigating factor at capital sentencing, and granting penalty phase relief).

         In other cases, a petitioner's entitlement to relief will turn on legal or factual questions beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute or the existence of constitutional error depends on facts outside the existing record, an evidentiary hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary hearing after finding § 2254(d) satisfied).

         DISCUSSION

         I. Juror Misconduct

         After the jurors rendered their verdict, petitioner moved for a new trial. ECF No. 20-2 (Clerk's Transcript Vol. 2) at 10 - 11. The motion was based on juror affidavits which indicated that misconduct had occurred during deliberations. Id. at 13. There are two separate instances of purported misconduct at issue. Prior to examining each issue, the court finds it useful to reproduce the state court of appeal's summation of the background surrounding juror misconduct and the motion for new trial:

On the day after the jury delivered its verdict, the trial court's judicial assistant received a call from Juror No. 3, who indicated he had “second thoughts about the verdict and [believed] that the jury came to the wrong conclusion.” Moore moved for a new trial, on the grounds of, inter alia, alleged juror misconduct. Moore relied on declarations from Juror Nos. 3 and 10 stating the jury had discussed Moore's failure to testify. Juror No. 3 declared: “Jurors #7, 9, and 10 discussed during deliberations that [Moore] did not testify. They stated that they would have understood the holes in the story of this case better if [Moore] had testified. These three jurors also stated that [Moore's] failure to testify supported their belief and their verdict that he was guilty of murder.”

Juror No. 10 declared: “During the course of deliberations, the jury spent at least four hours over the several days of deliberations discussing the fact that [Moore] did not take the stand. This was a recurring topic that the jury returned to many times during deliberations. Included in these conversations were statements that the case involved many unexplained questions that could have been answered had [Moore] taken the stand and testified. Additionally, it was discussed that [Moore] should have tried to protect his innocence by taking the stand and that he should have testified because he was on trial for murder. It was also discussed that had [Moore] taken the stand and testified regarding what occurred, it would have likely helped to lessen his degree of culpability. The jury also discussed the fact that [Moore] must not have taken the proceedings seriously as he did not take the stand in his defense. Finally, it was discussed that [Moore] seemed genuinely sympathetic on the 911 call and that, had he taken the stand in his own defense, the jury would have better understood what was on his mind and the outcome of the trial would likely have been different.”

The People opposed Moore's motion, supporting their opposition with declarations from Jurors Nos. 2, 3, 5, 8, 9, and 10. Juror No. 2 declared: “During deliberations the subject of [Moore's] failure to testify came up twice. [¶] When the subject arose, at least three people reminded the jury [Moore's] failure to testify cannot be taken into account. [¶] . . . [J]urors explained the court instructed them not to allow [Moore's] failure to testify to sway their judgment because it is the burden of the prosecutor to prove the defendant committed the crime. [¶] I would not characterize the subject as being ‘discussed' during deliberations. I would call it one of those ‘quick things.' [¶] There was no agreement between the Jury to disregard the Judges [sic] instructions regarding [Moore's] failure to testify. [¶] I personally reminded the jury of the [trial court's] instruction . . . .”

Declarations of Juror Nos. 5 and 8 were similar. Juror No. 5 stated: “During the course of the Jury's deliberations I heard brief comments from jurors about [Moore's] failure to testify. [¶] These comments did not last very long and I certainly do not remember anyone talking about the topic for hours at a time. [¶] At no time during the deliberations did I mention [Moore's] failure to testify had an effect on my decision. [¶] I did not observe any of the jurors mention [Moore's] failure to testify was affecting their decision making process during the course of the deliberations. [¶] There was no explicit or implicit agreement . . . to disregard the Court's instruction regarding [Moore's] failure to testify.” Juror No. 8 stated: “During the deliberations three of the jurors discussed [Moore's] failure to testify for a few minutes if that. [¶] There was no explicit or implicit agreement among the Jury to disregard the Court's instruction regarding [Moore's] failure to testify. [¶] Some of the jurors spoke out and reminded the Jury [Moore] has the right not to take the stand and it was up to the District Attorney to prove his case.”

Juror No. 9 declared: “One of the juror[s] indicated they wished [Moore] would have testified. [¶] The other jurors immediately responded the Judge instructed us that you cannot hold that against the defendant. [¶] I never stated [Moore's] failure to testify supported my belief of what happened and that [Moore] was guilty of murder. [¶] The other jurors also responded the jury needs to piece together the facts based upon the evidence that had been received during the trial. [¶] The discussion about [Moore's] failure to testify lasted seconds. The discussion lasted at most ten seconds. [¶] There was no agreement by the jury to disregard the courts instructions on any point of law.” Juror No. 3 also submitted a declaration in support of the People's opposition, in which he stated: “During deliberations the Jury briefly discussed [Moore's] failure to testify for less than five minutes. Prior to Juror #10's remark that we had to ‘fill in holes' there was additional discussion to the effect that if [Moore] had testify [sic] a lot of questions could have been answered. [We] discussed this topic for some time. [¶] There was no agreement . . . to disregard the Judges [sic] instructions regarding [Moore's] failure to testify.”

Juror No. 10's declaration in support of the opposition provides: “[Moore's] failure to testify came up within the context of trying to determine what transpired. [¶] . . . [¶] I reminded my fellow jurors this is not a moral court and we must decide the case based on the facts and the law as it is written. [¶] I never stated that [Moore's] failure to testify supported my belief on the case and my verdict that [Moore] was guilty of murder. [¶] . . . [¶] There was no ...