People v. Ault, No. S119948.

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER, J.
• Citation: 33 Cal.4th 1250,95 P.3d 523,17 Cal.Rptr.3d 302
• Parties: The PEOPLE, Plaintiff and Appellant, v. Brenner Carl AULT, Defendant and Respondent.
• Decision Date: 16 August 2004
• Docket Number: No. S119948.

17 Cal.Rptr.3d 302
95 P.3d 523
33 Cal.4th 1250

The PEOPLE, Plaintiff and Appellant,
v.
Brenner Carl AULT, Defendant and Respondent

No. S119948.

Supreme Court of California.

August 16, 2004.

17 Cal.Rptr.3d 303

Paul J. Pfingst and Bonnie M. Dumanis, District Attorneys, Kim-Thoa Hoang, Anthony Lovett, D. Michael Ebert, Christopher F. Lindberg and Craig E. Fisher, Deputy District Attorneys, for Plaintiff and Appellant

Cleary & Sevilla and Charles M. Sevilla, San Diego, for Plaintiff and Respondent.

BAXTER, J.

In People v. Nesler (1997) 16 Cal.4th 561, 66 Cal.Rptr.2d 454, 941 P.2d 87 (Nesler), a plurality of this court concluded that when a criminal defendant appeals the denial of his or her motion for a new trial on grounds of juror misconduct, the appellate court must independently review, as a mixed question of law and fact, the trial court's conclusion that no prejudice arose from the misconduct. (Id. at p. 582, fn. 5, 66 Cal.Rptr.2d 454, 941 P.2d 87 (lead opn. of George, C. J.).) We granted review in this case to determine the proper standard of review when the trial court granted a criminal defendant's motion for a new trial on grounds of prejudicial juror misconduct, and the People appeal, disputing only the trial court's determination that the misconduct was prejudicial.

The Court of Appeal majority determined that, in such circumstances, the trial court's order is reviewed for abuse of discretion, with deference to its assessment of prejudice. Applying that standard, the Court of Appeal affirmed the order granting a new trial. The standard of review

17 Cal.Rptr.3d 304

adopted by the Court of Appeal comports with the longstanding principle that an order granting, as opposed to denying, a new trial is reviewed liberally, particularly with regard to the trial court's finding that an error or irregularity in the original trial was prejudicial. We find no compelling reason to depart from this principle where the error or irregularity is conceded, and prejudice is the only disputed issue, even if the assessment of prejudice involves a mixed question of law and fact

We therefore confirm that when a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it constituted an abuse of discretion.

Here, as below, the People do not dispute that misconduct occurred when a juror in a child molestation case, contrary to her instructions, received information from an outside source, then shared this information with other jurors during deliberations in an effort to bolster the credibility of the prosecuting witness. The People have also conceded that because the prejudice issue is "close," the trial court's determination of that issue cannot be reversed for abuse of discretion. Thus, as we signaled in our order limiting the issues on review, we do not undertake to second-guess the Court of Appeal majority's conclusion that there was no such abuse. We will therefore affirm the Court of Appeal's judgment.

FACTS AND PROCEDURAL BACKGROUND

An information charged defendant with 13 counts of sexual misconduct involving three girls. Counts 1 through 10 alleged defendant had committed lewd and lascivious acts against Stephanie C. (Stephanie), a child under 14, between January 1998 and October 2000. (Pen.Code, § 288, subd. (a).)¹ Counts 1 through 5 involved alleged incidents at defendant's apartment. Count 1 asserted that defendant kissed Stephanie on the lips before taking her to a baseball game. Count 2 charged that he touched her near her vagina on the same occasion. Count 3 alleged a vaginal touching on another day before they went out for ice cream. Counts 4 and 5 asserted that on still another occasion, defendant touched Stephanie on or near her vagina and kissed her while she was lying on his bed after she had removed her clothing.

Count 6 charged a vaginal touching in a swimming pool. Count 7 alleged that defendant kissed Stephanie while they were in her bedroom. Counts 8 through 10 related that defendant touched Stephanie's vagina, and twice had her touch his penis, while they were at the beach.

At trial, Stephanie testified concerning each of counts 1 through 10. As to counts 4 and 5—the only ones that resulted in convictions—her testimony was as follows: On September 14, 2000, her brother's birthday, while her parents were in Europe, defendant picked her up after school, took her to his apartment, and showed her paint balls. Then he brought her into the bedroom, lay on her, kissed her, and asked her to undress. He left the room while she removed her clothing and slipped under the covers. He returned, again lay on her and kissed her, and told her she could put a pillow over her face if she was embarrassed. She did so. Defendant told her he had put his finger in her vagina and said he liked it when she got wet. He asked her not to tell or he would go to jail. He also had her touch his penis. After she

17 Cal.Rptr.3d 305

dressed, she sat on his lap while he showed her pornographic pictures on his computer, touching her vagina again as he did so. They then went to her brother's birthday party

Stephanie explained that she thought of defendant, a 35-year-old man, as her boyfriend, but felt guilty and embarrassed about the molestations. They came to light after she had a fight with her "grammy," who was caring for her while her parents were in Europe. These problems led to Stephanie staying with a teacher and family friend, Kym T. (Kym). Kym asked Stephanie if defendant kissed her. Stephanie first said no, but after Kym related her own molestation experience, Stephanie admitted some of the conduct with which defendant was later charged. Kym testified that she confronted defendant, who neither denied the molestations nor called Stephanie a liar. Stephanie admitted at trial that the day before she talked to Kym, she was angry with defendant because he failed to give her a ride home from school.

Stephanie's preliminary hearing testimony omitted reference to several significant incidents and details, which she remembered only a few days before trial. There was evidence that her embarrassment, and her developmental disabilities, including an expressive language disorder, may have hindered her in disclosing the molestations sooner.

At the close of the prosecution's case, the court granted defendant's motion for acquittal (§ 1118.1) as to counts 6 and 7. At the same time, the court acquitted defendant of one of the counts involving the other alleged victims.

Defendant testified in his defense, denying each incident of molestation. He insisted he firmly denied to Kym that he had molested Stephanie. There was evidence that the alleged molestations prior to the baseball game could not have occurred at the time of year when Stephanie said they did. Several witnesses testified that at her brother's September 14, 2000, birthday party, which allegedly took place just after the incidents charged in counts 4 and 5, Stephanie's behavior and demeanor were entirely normal. Though defendant admitted he had pornographic images on his computer, an expert testified he found no evidence these images were accessed between 1:00 p.m. and 7:00 p.m. on September 14, 2000.

The jury convicted defendant on counts 4 and 5,² but acquitted him of all the remaining counts, including those involving the other alleged victims. After the verdict, defendant moved for a new trial on four grounds, including juror misconduct. The trial court rejected three of the four grounds, but granted a new trial based on prejudicial juror misconduct.

The evidence of juror misconduct was as follows: Sometime during trial, Juror No. 2 told her manicurist she was serving on a jury. When the manicurist asked what kind of trial it was, Juror No. 2 disclosed it was a child molestation case. The manicurist then related to Juror No. 2 that someone she knew had been molested by her father, who nonetheless later escorted her down the aisle at her wedding. During deliberations, one of the jurors was replaced by an alternate. The new juror told the other panelists he did not believe Stephanie's testimony. Juror No. 2 stated that the jury had already moved on to other issues. The alternate indicated his

17 Cal.Rptr.3d 306

skepticism was based in part upon Stephanie's demeanor. At this point, in an effort to get the alternate "up to speed" so they could discuss other matters, Juror No. 2 told the manicurist's story. Two other jurors recalled hearing a story about a friend who was molested but behaved normally. One said Juror No. 2 told the story as though it was Juror No. 2's own friend who was the victim.

In ruling on defendant's juror misconduct claim, the trial court first found that misconduct had occurred, as follows: "Juror [No. 2] spoke to an outside source (her manicurist) about the trial while [it] was still pending[,][and] she received outside information from that source about how a molested child may act normally after the molest. Then she used this information to influence the other jurors during deliberations when they were discussing the victim's credibility." These actions violated the oft-repeated admonitions not to discuss the case with nonjurors, or to consult outside sources of information, and not to share information gained from such sources with other jurors during deliberations. "The totality of these events amounts to juror misconduct."

The trial court then analyzed the issue of prejudice. The court invoked the test recited in Nesler, supra, 16 Cal.4th 561, 578-579, 66 Cal.Rptr.2d 454, 941 P.2d 87, to the effect that when a juror commits misconduct by receiving extraneous material, prejudice—i.e., a substantial likelihood of actual bias—will be found if either (1) the extraneous material is itself "inherently" prejudicial, or (2) the nature of...