People v. Von Villas, B080766

• Decision Date: 20 July 1995
• Docket Number: No. B080766,B080766
• Citation: 36 Cal.App.4th 1425,43 Cal.Rptr.2d 233
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5775, 95 Daily Journal D.A.R. 9783 The PEOPLE, Plaintiff and Respondent, v. Robert Anthony VON VILLAS, Defendant and Appellant.

Page 233

43 Cal.Rptr.2d 233

36 Cal.App.4th 1425, 95 Cal. Daily Op. Serv. 5775,

95 Daily Journal D.A.R. 9783

The PEOPLE, Plaintiff and Respondent, v. Robert Anthony VON VILLAS, Defendant and Appellant.

No. B080766.

Court of Appeal, Second District, Division 7, California.

July 20, 1995.

Rehearing Denied Aug. 9, 1995.

Review Denied Nov. 2, 1995.

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., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., and Marc E. Turchin and Paul C. Ament, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

In 1988, Robert Anthony Von Villas and codefendant Richard Ford were convicted, following a joint trial before separate juries, of conspiracy to commit murder (Pen.Code, §§ 182, 187) and the first degree murder of Thomas Weed. (Pen.Code, §§ 187.) Each jury found the special circumstance allegation that the murder was committed for financial gain to be true. (Pen.Code, §§ 190.2, subd. (a)(1).) Von Villas was sentenced to life in prison without possibility of parole on the murder with special circumstances count, and 25 years to life on the conspiracy count. The sentence on the conspiracy count was stayed pursuant to Penal Code section 654. ¹

Von Villas and Ford appealed from their judgments; this court affirmed the judgment as to Ford and vacated the judgment as to Von Villas, remanding the cause to the trial court for a full and fair hearing on Von Villas's allegations of juror misconduct. ² Following said hearing, and on June 17, 1993, the trial court determined there was no juror misconduct and denied Von Villas's motion for a new trial.

On July 26, 1993, Von Villas filed his notice of appeal from the "judgment/order of June 17, 1993" denying his motion for a new trial on the grounds of jury misconduct.

On July 28, 1993, the trial court issued a nunc pro tunc order that the minute order of June 17, 1993, be corrected as of June 17, 1993, reimposing the original sentence. ³

EVIDENCE AT HEARING REGARDING ALLEGED JUROR MISCONDUCT

At the hearing following remand by this court, Betty Cornick testified that in 1989 she was a juror on this case; she recalled there were two juries hearing the case; during the defense part of the case against Von Villas, her jury was excused; sometime thereafter, she learned that the other jury had "ended their trial" and that codefendant Ford had been convicted; she probably learned this information the next day; there was a picture in the newspaper and writing under the picture to the effect, "Ford Convicted" or "something like that"; she did not read the article and did not discuss the fact that Ford had been convicted with any of the other jurors; she did not recall any discussions going on in the jury room about the fact that Ford had been convicted; she recalled that the judge had instructed her not to read any newspapers, but she glanced at this one anyway.

Some weeks after she concluded jury service, she had a phone call from someone but did not get the person's name; she discussed with that person that she had received information from a newspaper article; she told the caller that she would not sign an affidavit and she did not want to be involved anymore. When she spoke to the person on the telephone she did not say, "One or more of the jurors had read about that crime and learned about the conviction from an article in the Cornick testified she did not read the article associated with the picture and headline because she "would have got killed." The newspaper was delivered to her house; she brought the paper in, sat down on the couch with her coffee and opened the paper "and it was there." She then closed the paper, drank her coffee and got ready to go to court. ⁴

                'Los Angeles Times' ";  she told the caller that, "One of the jurors, Ron Rudy, advised them that they were not supposed to read about the case in the newspaper."   She did not say she heard on the radio and saw on television that codefendant Ford was convicted of murder by his jury;  she did not tell the caller, "The next day all of the jurors knew about it";  she did not tell him that Ford's conviction was discussed in the jury room
                

David Boykoff testified he is a private investigator and was working for Von Villas. He interviewed juror Cornick by telephone and she said she had known about Ford's conviction during the guilt phase of the Von Villas trial, that she read it in the newspaper and heard it on television. Boykoff's memory was unclear about whether any of the other jurors knew about Ford's conviction. He participated with Donald Feinberg, one of Von Villas's attorneys, in drawing up an affidavit for Cornick's signature and told Feinberg exactly what Cornick told him. The affidavit refreshed Boykoff's recollection, and he testified that Cornick told him that other jurors had discussed Ford's conviction in the jury room.

The court took judicial notice of that portion of the trial transcript reflecting the court's admonition to the jury the day of Ford's verdict. The court warned: "I want to caution you as I have told you repeatedly to avoid any publicity or anything on this case. [p] As I'm sure you are aware, there's some cameras. They are not turned on at this point, but I anticipate there will be some publicity on this case. [p] And I'm going to caution you very strongly. I would ask that you not watch any newscasts on the television tonight. And if you must read a newspaper, if you have a [housemate] or someone that could sensor [sic ] the paper for you and not read any publicity at all on this case. [p] And you might be cautious also what you happen to listen to on your car radio going home and coming to court tomorrow. [p] So this is very important and please obey that admonition. These are two different trials and they are totally separate things so please be very cautious as to what you see or hear."

The court also took judicial notice of the query to the jury the next day wherein the court stated: "Ladies and gentlemen of the jury, after my admonition yesterday, I'd like to make a general inquiry of you if any of you inadvertently or otherwise did see or hear any publicity about this case, specifically, on Mr. Ford. [p] If you did, would you give me a showing of hands. [p] I see no showing of hands. [p] All right. I will ask you to continue to follow my admonition."

At the conclusion of the hearing testimony, defense counsel argued that Cornick openly admitted that she brought the newspaper into her house, opened it up and there was the picture of Ford right on the front page with the statement he was convicted. She violated the court order by looking at the newspaper and she compounded the problem by coming into the court the same day and failing to notify the court what she had seen in response to the court's specific inquiry whether any of the jurors had inadvertently or otherwise seen or heard any publicity about this case, specifically, as to Mr. Ford. Counsel argued that it only took one juror to receive improper information to have an unfair trial.

In ruling on the motion, the court stated in pertinent part: "[Cornick] did testify that she had opened the paper after being admonished by the court the previous evening to avoid newspapers, radio and TV. And she saw the caption 'Ford convicted.' [p] And she was asked if she read the article. And her response was, 'No, because I would have been killed.' ... The point of that is it certainly stresses that she recognized the seriousness of my admonition and that it was

total inadvertence and she did not expect to see Ford's picture or this article on the front page. [p] Certainly would not surprise the rest of us or anyone connected in this kind of work, but to a person like Betty Cornick, I think it was an innocent act. And she immediately recognized what she did and put it to rest. [p] Her affidavit that was unsigned that the District Court of Appeal seemed to place great weight on that, she indicated in that that all the jurors were discussing it in the jury deliberation room. [p] I heard absolutely no testimony to that here, and I do not find that was a fact. [p] And she denies most of what was in that affidavit. Certainly, if everything that had occurred in the affidavit had been proven here there might be a different light, but that was not her testimony. [p] The court indicated I should judge the credibility of the jurors. And I judged her credibility and I believe what she said here, that to the best of her remembrance that that was what occurred.... [p] So as to Betty Cornick, I do not find that she committed juror misconduct."

DISCUSSION

Appellant's contention that prejudicial juror misconduct occurred requiring reversal and a new trial is without merit. While it is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he or she is sitting, and that receiving impressions from sources other than evidence received at trial raises a presumption of prejudice, this presumption of prejudice may be rebutted. (People v. Holloway (1990) 50 Cal.3d 1098, 1108, 269 Cal.Rptr. 530, 790 P.2d 1327.) "This 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 [resulting from the misconduct]...." ' [Citations.]" (In re Hitchings (1993) 6 Cal.4th 97, 119, 24 Cal.Rptr.2d 74, 860 P.2d 466.) Our Supreme Court in In re Carpenter (1995) 9 Cal.4th 634, 653, 38 Cal.Rptr.2d 665, 889 P.2d 985, recently summarized that "when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict...