People v. Cumpian, G010129

• Decision Date: 25 November 1991
• Docket Number: No. G010129,G010129
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George Barney CUMPIAN, Defendant and Appellant.

Page 861

1 Cal.Rptr.2d 861

1 Cal.App.4th 307

The PEOPLE, Plaintiff and Respondent, v. George Barney CUMPIAN, Defendant and Appellant.

No. G010129.

Court of Appeal, Fourth District, Division 3, California.

Nov. 25, 1991.

Certified For Partial Publication. ^*

Review Denied Feb. 20, 1992.

[1 Cal.App.4th 309] Russell Iungerich, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and M. Howard Wayne, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

MOORE, Associate Justice.

A jury convicted George Barney Cumpian (defendant) of second degree robbery, and, in a bifurcated court trial after a jury waiver, the court found that he had suffered a prior term of imprisonment pursuant to Penal Code section 667.5, subdivision (b). ¹ He was sentenced to prison for the mid-term of three years for the robbery, with a consecutive term of one year for the prior term of imprisonment, for an aggregate sentence of four years.

On appeal, defendant contends the jury committed misconduct by performing an experiment which violated both California law and the United States Constitution. He also alleges there was insufficient evidence to convict him of robbery.

FACTS

On April 5, 1990, K-Mart Security Guard Nelson Laurie watched as defendant removed a duffel bag from a display rack and placed two police-type flashlights into it. Laurie followed as defendant left the store without paying. Once outside, as defendant was about to enter his car, Laurie patted him on the shoulder, showed him his badge, and stated "K-Mart security. I want you to go back with me into the store." The duffel bag was at defendant's side and the strap around his neck. When Laurie and defendant were approximately 50 feet from the front of the store, defendant swung a large safety-pin at Laurie three times. Laurie backed off and the safety-pin narrowly missed him. Defendant then ran away.

Santa Ana Police Officer Wopershall was in the K-Mart store on another matter and heard Laurie yell that defendant had stolen property and was running away. Laurie pointed defendant out, and Wopershall followed him in his patrol car. After losing sight of defendant, Wopershall looked into the yard of a house and saw him hiding behind a brick wall. Wopershall and Laurie, who had also given chase, took defendant into custody. The duffel bag containing the flashlights was still hanging over his neck and the safety-pin, with three keys attached to it, was on the ground next to him.

Defendant testified he had just unhooked his key holder from his belt when someone grabbed his right arm. He swung his arm to free himself, not knowing who it was that had grabbed him; he claimed Laurie never identified himself as a security guard nor displayed a badge. He took off running out of embarrassment, since he was a Christian and was involved in a jail ministry. He had not intended to injure Laurie and had unsuccessfully tried to drop the duffel bag, which was tightly strapped to his body. He claimed his only intent was to commit a "simple petty theft," not a robbery.

DISCUSSION

I. Jury Misconduct

Defendant first argues the jury performed an illegal experiment during deliberations which constituted misconduct thereby compelling reversal under California law and the United States Constitution. After his conviction, defendant filed a motion for new trial alleging the jury performed an unlawful experiment during deliberations. Two jurors submitted signed declarations under penalty of perjury alleging the same facts: "During jury deliberations in the jury room I and other jurors were permitted to examine certain items of evidence including a duffel bag and flashlight. [p] While examining the duffle [sic ] bag several jurors placed the duffel bag over their torso, with the strap of the duffel bag across their torso, in a fashion similar to that described by the witnesses during the trial. These jurors then attempted removing the duffel bag to determine how easily and how long it would actually take to remove the duffle [sic ] bag from one's body. The intent of the jurors was to determine whether the accused, faced with apprehension by the security guard, could easily have removed the duffle [sic ] bag to avoid arrest. If the bag was easily and quickly removable this would support a conclusion that the accused intended to escape with the bag."

Defendant contends this was an unlawful experiment directed at the issue of intent, the primary issue in the case, and was prejudicial misconduct. He claims that since he testified he attempted to abandon the bag, and since his use of force had to be concurrent with an intent to steal, if believed, he would be guilty only of petty theft.

Defendant made essentially the same argument in his motion for new trial, which was denied. The trial court stated: "I'm finding that the conduct of the jury, of some jurors in the jury room, was not of such a character as would be likely to influence a verdict improperly. So your motion for new trial is denied."

"A motion for new trial may be made on the grounds of juror misconduct or unauthorized receipt of evidence by the jury. [Citation.] 'It is the trial court's function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct.... However, in reviewing an order denying a motion for new trial based on jury misconduct, as distinguished from an order granting a new trial on that ground, a reviewing court has a constitutional obligation ... to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.]' " (People v. Wisely (1990) 224 Cal.App.3d 939, 947, 274 Cal.Rptr. 291, quoting Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 954-955, 182 Cal.Rptr. 176; see also Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 321, 276 Cal.Rptr. 430; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10, 185 Cal.Rptr. 654, 650 P.2d 1171.) This court must undertake a de novo review to determine whether there was misconduct, and, if so, whether that misconduct prejudiced defendant and requires his conviction be reversed.

Jury misconduct has the same effect on both civil and criminal litigants. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, fn. 10, 185 Cal.Rptr. 654, 650 P.2d 1171.) Jury misconduct raises a presumption of prejudice, and " 'unless the prosecution rebuts that presumption ..., the defendant is entitled to a new trial.' " (In re Stankewitz (1985) 40 Cal.3d 391, 402, 220 Cal.Rptr. 382, 708 P.2d 1260, quoting People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.) "The presumption of prejudice 'may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party....' " (People v. Miranda (1987) 44 Cal.3d 57, 117, 241 Cal.Rptr. 594, 744 P.2d 1127, quoting Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.) "Whether a defendant has been prejudiced ... depends upon 'whether the jury's impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened and whether any asserted defense has been contradicted.' " (People v. Miranda, supra, 44 Cal.3d at p. 117, 241 Cal.Rptr. 594, 744 P.2d 1127, quoting People v. Martinez (1978) 82 Cal.App.3d 1, 22, 147 Cal.Rptr. 208.)

Here, the prosecution proffered no evidence whatsoever that would rebut prejudice. Accordingly, if the jury's actions here constituted misconduct, it would be prejudicial, since the alleged experiment involved an asserted defense. (See People v. Miranda, supra, 44 Cal.3d at p. 117, 241 Cal.Rptr. 594, 744 P.2d 1127; see also People v. Martinez, supra, 82 Cal.App.3d at p. 22, 147 Cal.Rptr. 208.) We must thus decide whether the actions of the jurors in strapping the bag around their necks in the fashion indicated at trial constituted jury misconduct.

The jury was instructed at the beginning of the trial pursuant to CALJIC No. 1.03 (5th ed. 1988 bound vol.) that, "You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. [p] You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information...." Relying on People v. Pierce, supra, 24 Cal.3d 199, 155 Cal.Rptr. 657, 595 P.2d 91, defendant contends the jury's actions violated this directive and thus constituted misconduct giving rise to a presumption of prejudice. In Pierce, the Supreme Court held that a juror's discussion of a subject connected with the trial was misconduct giving rise to a presumption of prejudice. (Id. at p. 207, 155 Cal.Rptr. 657, 595 P.2d 91; see also People v. Honeycutt (1977) 20 Cal.3d 150, 156-157, 141 Cal.Rptr. 698, 570 P.2d 1050.)

In construing the critical sentence "... you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information ...," the phrase "on your own" clearly modifies the phrase "conduct experiments." This can logically be interpreted in two ways: first, as informing the jurors that experiments outside the jury room with less than the entire jury present are prohibited, and second, as informing them that they must not deviate from the evidence which was adduced at trial and delve into other, new areas on their own.

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