People v. Mason CA4/1

Filed 1/23/15 P. v. Mason CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064039

Plaintiff and Respondent,

v. (Super. Ct. No. SCD233960)

MICHAEL BARAKA MASON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal,

for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted defendant and appellant Michael Baraka Mason of five counts of

conspiracy to send drugs into jail, where he was an inmate. (Pen. Code, § 182,

subd. (a)(1), counts 1, 4, 7, 10, 13; all further references are to this code unless noted.)

He was also convicted of two counts of smuggling controlled substances into jail.
(§ 4573; counts 3, 15.) The jury did not find true any of the accompanying gang

enhancement allegations. (§ 186.22, subd. (b)(l).) Three of four prior conviction

allegations were found true.

After a new trial motion was denied, Michael Mason was sentenced to an

aggregate term of 13 years four months in prison, to be served consecutively with a

sentence imposed in a different case.1 The court denied probation and ordered that for

each of the five conspiracy counts, he would serve two years eight months (1/3 of the

midterm of four years, doubled). On counts 3 and 15 (substantive smuggling offenses),

the sentences imposed were stayed under section 654. Other counts on which verdicts

were not reached were dismissed (counts 6, 9, 12).

While this separate appeal was pending, this Court resolved an appeal by

Michael's codefendant and wife Cristina Mason. (People v. Mason (Aug. 13, 2014,

D064346) [nonpub. opn.] (the previous appeal); we shall refer to these two married

persons by first names for convenience.) Based on the same sets of facts presented at

their joint trial, Cristina was convicted of the same five counts of conspiracy to furnish

drugs to a person in custody (counts 1, 13; but counts 4, 7, 10 were for conspiracy for

attempted furnishing). (§ 182, subd. (a)(1).) The jury also convicted Cristina of two

1 In case No. SCD 214650, Michael Baraka Mason received a 30-year determinate
term, plus nine consecutive LWOP terms, with other lengthy consecutive terms imposed
as well. He appealed and on December 15, 2014, this court reversed in part and affirmed
as modified. (Case No. D063793.)
2
counts of attempting to furnish drugs (counts 2, 14). (§§ 664/4573.9, subd. (a); other

counts as to Cristina dismissed.)2 We affirmed the judgment.

In the current appeal, Michael contends that on all the conspiracy counts, the jury

was not properly instructed, sua sponte, on whether a single or multiple conspiracies were

formed. Further, he argues the trial court abused its discretion by admitting prejudicial

evidence over his hearsay objections. (Evid. Code, § 352, 1223 [coconspirator

exception].) Michael then claims the evidence is not sufficient to support any conclusion

that more than one such conspiracy agreement existed. (See, e.g., People v. Jasso (2006)

142 Cal.App.4th 1213, 1220 (Jasso).) Finally, Michael contends the trial court erred or

abused its discretion by failing to investigate adequately an allegation of juror

misconduct.

We find no instructional or evidentiary error, nor any abuse of discretion regarding

the extent of the investigation into the alleged jury misconduct. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. Shipments and Investigation

As summarized in the previous appeal, the facts of the conspiracy allegations to

accomplish the target smuggling offenses can be outlined somewhat briefly, to provide

context for the discussion which follows. Beginning in 2008, Michael was held in jail

pending trial on other charges. (See fn. 1, ante.) Michael had Lincoln Park Blood gang

ties and had participated in running the gang's prostitution business. He also ran a music

2 In brief, section 4573.9 makes it a felony for an unauthorized person who is not in
custody (Cristina) to furnish a controlled substance to a person who is in custody
(Michael).
3
business with Cristina, his girlfriend and wife, and it was unclear if she had worked for

him as a prostitute. Michael and Cristina often talked on the telephone five or six times a

day on business and other matters, and she put money into his bank account and into the

accounts of 14 inmates at the jail. She also posted bail or arranged other assistance for

gang members when Michael told her to do so.

At the George Bailey and Vista detention facilities, authorities were monitoring

telephone calls by Michael and others to Cristina, over periods including the eight months

when the packages giving rise to these conspiracy counts were being intercepted.

Conspiracy count 1 (and his smuggling count 3) arose out of a package delivered in

August 2010 to a prisoner lodged in his module, Patrick Gladney, that was addressed in

handwriting similar to other mail items Michael had received. The package was stamped

"legal mail," was intercepted and heroin discovered inside. It had a false return address

from an attorney, and Cristina's fingerprint was later found on the package. Another

similar package sent to Gladney's cell mate earlier had the same return address zip code,

and it had contraband tobacco concealed in it.

Conspiracy count 4 was based on a package received in November 2010 by

another inmate in Michael's module, Ronnell Davis. The stamps on it were not canceled,

possibly because it did not travel through the postal system, and it looked like a photo

mailer and had bulges on the side that were found to contain heroin. Sheriff's

Department Detective Derek Williamson, a jail official, came to believe that Michael, a

Lincoln Park gang member, was involved in heroin smuggling, and that there might be a

compromised jail employee involved. Williamson had Michael transferred to the Vista

4
detention facility, where he would not have a good peer support system and would be

more carefully watched.

The day Michael was transferred, he called Cristina and talked about finding a 24-

hour postal place, which Cristina said she would investigate. They talked about how he

did not want to have to ask fellow inmates there for anything. Conspiracy count 7 was

based on a "duck" printed photo mailer package received in December 2010 by Michael

at the Vista facility. It was intercepted and found to contain heroin. Count 10 was based

on another intercepted photo mailer package sent to Michael in December 2010,

containing heroin.

Michael was transferred back to the George Bailey detention facility, where count

13 (and his smuggling count 15) arose. Michael's personal identification number (PIN)

was used to make several telephone calls to Cristina in early April 2011. In another

phone call around the same time, an inmate told Cristina that he was calling on Michael's

behalf to see whether she had any messages for him, and Cristina told him that she talked

to Judy and Ray. Later in a phone call, Cristina told Michael he should soon be receiving

pictures of her "in the candy aisle."

Shortly thereafter in early April 2011, jail deputies intercepted two packages

containing different books, addressed to Michael. The first book had a bulge in its spine,

which turned out to be heroin. A postal inspector and a detective testified that postal

surveillance video showed Cristina mailing that package. A second book that was sent

had a bulge in its spine, which turned out to be contraband cut-up photos of a naked

woman, Cristina.

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 In March 2010, a search warrant was executed to search Cristina's home.

Detectives found 19 unused envelopes with the return address of a local attorney,

addressed to inmates, as well as a stamp that said "Legal Mail." The attorney had not

authorized such a use of his address. Detectives also found a book with an altered spine,

containing methamphetamine, as well as other mailing envelopes that looked like the

intercepted envelopes.

Detectives seized telephones and computers from Cristina's house. The forensic

examiner recovered e-mail receipts from Amazon.com for books sent to Michael at both

detention facilities but confiscated, listing either Cristina or "Meshell Gosse" as the

shipper. The receipts were altered and repeatedly used the same bar codes and order

identification numbers. The examiner recovered a number of e-mail addresses used on

the computer that had gang references ("lovetheblood") and references to names used by

Michael (Don Diego), or his music business ("mafiamubaby" or "damafiamu") and by

Cristina (e.g., Donna Cherry, for her escort business).

B. Trial Proceedings

In the second amended information, the conspiracy charges jointly named Michael

and Cristina as participants, as well as other unknown individuals who had participated in

the overt acts towards committing the crimes of giving a controlled substance to a person

in custody.

Michael presented his own testimony and that of numerous witnesses, including

his gang expert, private investigator Graham McGruer. McGruer told the jury that the

Mexican Mafia (or EME) is a prison gang operating to control prisoners in correctional

6
facilities. They exact a tax from nonmembers who are planning on conducting criminal

activity in the facility, and enforce it with death or injury. The Mexican Mafia also forces

people to bring drugs into prison.

A search warrant executed at Cristina's house found a money order that was made

out to a Hispanic individual, the brother of a known high ranking inmate in the Mexican

Mafia, who was housed at the George Bailey detention facility. Detective Williamson,

testifying as a gang expert for the prosecution, explained that such inmates are shot-

callers who collect taxes from other inmates to allow them to operate illicit businesses

behind bars.

Michael testified about how he was falsely accused by the Mexican Mafia of

killing one of their family members, and was required to pay them protection on a

monthly basis, using Cristina as a go between. Because of his own wealth, Michael said

he did not need to sell drugs in jail for his own profit. He admitted to smuggling drugs

with the assistance of Cristina. He did so because the Mexican Mafia directed him to

import drugs into the jail, and its members delivered the drugs to Cristina and instructed

her how to send them on to Michael, so he could turn them over to the Mafia members.

To protect her, he told her she was sending him chewing tobacco. If the drugs were

intercepted, Michael had to pay them more protection money, which he was able to do.

At trial, Detective Williamson played for the jury 15 recordings of jail calls

between Cristina and Michael, and between Cristina and other inmates and/or Michael.

Out of eight months of recorded jail phone calls, he had listened to calls from the time

periods around when the smuggling incidents occurred, because there were so many

7
phone calls between Michael and Cristina that he had to be selective to get his work

done.

Michael and fellow inmates often talked to Cristina on the telephone about "Judy,"

"Ray," or "Rudy Huxtable," and making arrangements to call them, get in touch with

them or meet them. Some inmate voices said they were acting as messengers for Michael

when he was in the hole and unavailable, and Cristina arranged three-way calls for them

and for Michael. Some of the other voices speaking on calls between Cristina and

Michael had Mexican accents. Topics discussed included getting money orders from a

wiring service, buying or selling a camera or car, and getting flyers or CDs distributed for

their music business. They talked about getting some "duck things" (mailers?) and fixing

whatever didn't work out.

Based on his work experience as a jail investigator, Williamson testified that he

interpreted some of the expressions used repeatedly in Cristina's and Michael's calls as

code words that were arrangements for drug smuggling. For example, there were

comments in some of the phone calls possibly referring to an inside jail employee who

might be involved (using a "24 hour postal place"). When Michael and Cristina

discussed wrapping and delivering album covers, calling or getting in touch with "Judy,"

"Ray," or "Rudy Huxtable," or getting some duck things, Williamson believed they were

talking about drug deliveries.

Other witnesses testifying in Michael's defense described several alternative

explanations for apparent gang-related expressions they and their associates used in

8
telephone calls and in their music and video businesses. Their businesses had the impacts

of unifying gang members in different neighborhoods.

The court and counsel held numerous discussions about evidentiary disputes, such

as the admissibility of gang evidence about the Mexican Mafia. The court instructed the

jury, inter alia, on the elements of conspiracy and the requirements of overt acts for each

count. Michael's requested jury instruction was given in support of his defense of duress,

based on his claim he had participated in smuggling drugs only in response to threats to

his life, and "perhaps" to his wife, made by Mexican Mafia members.

The jury convicted Michael of two counts of smuggling drugs into jail, and five

counts of conspiracy to do the same, but did not find the gang allegations true. He was

sentenced, as above, and brought this appeal.

DISCUSSION

For topics that are common to Cristina's previous appeal, we set forth as adapted

the legal analysis set forth of Cristina's claims, where Michael has presented essentially

identical arguments on an identical record. Regarding the requests for sua sponte

instructions about the number of conspiracies proven (pt. I, post), as well as the

sufficiency of the evidence (pt. III, post), we reach the same results, that there was no

such trial court instructional duty on this record and no insufficiency of the evidence.

Similarly, in part IV, we explain that the trial court fulfilled the applicable duties to

investigate allegations of jury misconduct.

9
 Michael's arguments of evidentiary error concerning the jail calls' admissibility

and that of Detective Williamson's expert testimony for interpretation of them will be

separately addressed in part II, post.

I

CONSPIRACY ISSUES: SUA SPONTE INSTRUCTIONS

On appeal, Michael does not dispute that the evidence was sufficient to establish

that Cristina sent contraband to him and his associates, and he does not argue for reversal

of his two smuggling convictions. However, he contends the trial court erred by failing

to instruct the jury, sua sponte, that it had to decide whether he and Cristina engaged in

either a single ongoing conspiracy, or multiple ones.

A. Instructional Duties: Review

In criminal cases, " ' "even in the absence of a request, the trial court must instruct

on the general principles of law relevant to the issues raised by the evidence. [Citations.]

The general principles of law governing the case are those principles closely and openly

connected with the facts before the court, and which are necessary for the jury's

understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154

(Breverman).)

In deciding which issues were adequately raised by substantial evidence at trial to

create an entitlement to sua sponte instruction on them, the courts will not evaluate the

credibility of witnesses, as that is the jury's prerogative. (Breverman, supra, 19 Cal.4th at

p. 162.) On review in this context, we construe the evidence in the light most favorable

to the appellant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.) We

10
examine whether substantial evidence was presented to require the trial court to instruct

on general principles of law relevant to those issues, here, the existence of one or instead,

multiple conspiracies. (See Breverman, supra, at pp. 154, 162.)

B. Legal Principles: Conspiracy

The crime of conspiracy has the purpose of punishing an agreement to act unlawfully.

" 'A conviction of conspiracy requires proof that the defendant and another person had the

specific intent to agree or conspire to commit an offense, as well as the specific intent to

commit the elements of that offense, together with proof of the commission of an overt act,

"by one or more of the parties to such agreement" in furtherance of the conspiracy.' "

(People v. Johnson (2013) 57 Cal.4th 250, 257, quoting People v. Morante (1999) 20 Cal.4th

403, 416.) A criminal conspiracy may be shown by direct or circumstantial evidence that the

parties came to a mutual understanding to accomplish an act with an unlawful design.

(Johnson, supra, at p. 264.)

" 'Where two or more persons agree to commit a number of criminal acts, the test of

whether a single conspiracy has been formed is whether the acts "were tied together as stages

in the formation of a larger all-inclusive combination, all directed to achieving a single

unlawful end or result." ' [Citation.] 'Relevant factors to consider in determining this issue

include whether the crimes involved the same motives, were to occur in the same time and

place and by the same means,' and targeted a single or multiple victims." (People v. Meneses

(2008) 165 Cal.App.4th 1648, 1672 (Meneses), citing People v. McLead (1990) 225

Cal.App.3d 906, 920.)

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 " ' "A conspiracy is not necessarily a single event which unalterably takes place at a

particular point in time when the participants reach a formal agreement; it may be flexible,

occurring over a period of time and changing in response to changed circumstances."

[Citation.]' " (People v. Gann (2011) 193 Cal.App.4th 994, 1005-1006 (Gann), citing People

v. Vargas (2001) 91 Cal.App.4th 506, 553.)

"It is well settled that the essence of the crime of conspiracy is the agreement, and

thus it is the number of the agreements (not the number of the victims or number of statutes

violated) that determine the number of the conspiracies. . . . 'The gist of the crime of

conspiracy . . . is the agreement or confederation of the conspirators to commit one or more

unlawful acts. . . .' [Citation.] ' "The conspiracy is the crime and that is one, however

diverse its objects." ' " (Meneses, supra, 165 Cal.App.4th at pp. 1669-1670, citing

Braverman v. U.S. (1942) 317 U.S. at p. 54 (Braverman).)

As explained in Meneses, supra, 165 Cal.App.4th 1648, 1668, there is a split of

authority among California intermediate appellate courts on whether a sua sponte duty

applies, for instruction of a jury on the existence of single or multiple conspiracies, where the

evidence would support alternative findings on the number of agreements involved. (Jasso,

supra, 142 Cal.App.4th at p. 1220.) There is also disagreement about whether it should be a

question of fact for the jury to decide if the evidence shows a single conspiracy or multiple

conspiracies. (Meneses, supra, at p. 1668; People v. Morocco (1987) 191 Cal.App.3d 1449,

1453; but see People v. Davis (1989) 211 Cal.App.3d 317, 322-323; People v. Liu (1996)

46 Cal.App.4th 1119, 1133.)

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 C. Contentions and Analysis

Michael argues the evidence would have supported alternate findings on whether a

single conspiracy or multiple conspiracies existed for making these shipments of drugs, and

therefore such a sua sponte instructional duty arose. He claims there was no direct evidence

of any agreement or agreements between himself, his wife, or any third party to smuggle

drugs. (Jasso, supra, 142 Cal.App.4th at pp. 1220-1221; Vargas, supra, 91 Cal.App.4th at

pp. 554.) Hence, different inferences about the number of agreements reached could have

been drawn by the jury, which was required to resolve all issues presented by the

circumstantial evidence.

Michael assumes that the jail phone calls demonstrated that a prearranged set of code

words was used to accomplish the delivery of drugs into prison. He argues this evidence

demonstrates there was one prearranged, ongoing conspiracy agreement, with a single

objective, and it was carried out through multiple attempts. Michael argues that even though

numerous voices were heard on the jail phone calls, and numerous methods of smuggling

were used, all those activities must have been directed toward a single pre-existing objective,

smuggling drugs into jail.

Although the Attorney General claims that Michael has forfeited this agreement by

failing at trial to request an instruction on the number of conspiracies proven, we deem it

appropriate to examine the record for any substantial support for such an instruction. Even

accepting that the number of statutes violated is not determinative, and that the number of

agreements is what counts (Braverman, supra, 317 U.S. at p. 53), this record shows more

than one agreement with different terms was reached, and at least five conspiracies were

13
demonstrated. From the circumstantial evidence of the relationship between Michael and

Cristina, combined with the nature of the different shipments that used different packaging

over a period of eight months, a reasonable conclusion can be drawn that there were separate

agreements reached, based on a distinct set of circumstances for each shipment.

Taken as a whole, the evidence showed these agreements were "distinct and

disconnected, not part of a larger all-inclusive combination directed to a single unlawful

end." (Meneses, supra, 165 Cal.App.4th at p. 1672.) Because there were different

combinations of participants, addressees, messengers, packaging materials, methods of

concealment, and shipments from different locations, over different time periods, reasonable

inferences arise that more than one type of agreement was necessary to adapt to the changing

circumstances of confinement. (Gann, supra, 193 Cal.App.4th at pp. 1005-1006.) Although

there was consistency among the coded language used in the phone calls for arranging

transactions ("Judy" and "Ray," "Rudy Huxtable," album covers), there were different

participants who gave Cristina instructions, with different results. At times she expressed

confusion or asked for clarification, and then followed through, but in different ways

depending on how the last shipments had gone.

This was not clearly a case in which one overall agreement among various parties

existed, "to perform various functions in order to carry out the objectives of the conspiracy."

(Jasso, supra, 142 Cal.App.4th at p. 1220.) The nature of these agreements for particular

kinds of packaging necessarily evolved over time, in response to changing circumstances

such as the interception of certain types of packages and the transfer of Michael between jail

facilities. (Meneses, supra, 165 Cal.App.4th at pp. 1669-1671; Gann, supra, 193

14
Cal.App.4th at pp. 1005-1006.) The five shipments had many similarities but also many

differences, and the jury could reasonably have concluded that independent agreements were

formed each time a shipment was designed and executed. (Meneses, supra, at p. 1669.)

There was no substantial evidence in support of a finding there was but a single agreement

for a continuing operation. Accordingly, the court was not required to so instruct.

In any event, jury instructions are not considered in isolation, and their adequacy is

determined by consideration of the entire charge to the jury. (People v. Holt (1997) 15

Cal.4th 619, 677.) The jury instructions as given covered the nature of the required

agreement between the codefendants, or other unknown individuals, to commit the crime of

giving a controlled substance to a person in custody. The jury was told to decide each charge

separately, and it filled out five separate verdict forms on the conspiracy charges. The

instructions adequately presented the issue of how many conspiracies were represented in the

evidence, without any need for an additional sua sponte instruction.

Because of these conclusions, we need not enter into the debate on the necessity of

sua sponte instructions about the number of conspiracies demonstrated, either in the abstract

or on this record. (E.g., Meneses, supra, 165 Cal.App.4th at p. 1668.) It is unnecessary to

reach Michael's arguments about the application of harmless error theory or federal

constitutional standards for evaluating error, since no instructional error occurred. (People v.

Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)

15
 II

ISSUES ON HEARSAY AND EXPERT TESTIMONY

Michael contends the trial court misapplied the hearsay exception of Evidence

Code section 1223, for statements by coconspirators. He argues the trial court erred

when allowing Detective Williamson to testify as an expert about the language used in 15

monitored telephone calls to Cristina by Michael and others, to present his interpretation

of certain words as codes used to refer to drug smuggling operations, or of pauses in

conversations as indicating expressions for hidden meanings were being used. (Evid.

Code, § 801, subd. (a).)

Michael claims additional errors or denials of due process occurred in the rulings

that allowed the jury to hear the entirety of the recordings, which also contained

extraneous, irrelevant or inadmissible material that was unduly prejudicial to him and to

his credibility. (Evid. Code, § 352; People v. Partida (2005) 37 Cal.4th 428, 439.)

A. Applicable Standards: Hearsay Exception

Although hearsay evidence is generally inadmissible under Evidence Code section

1200, a hearsay statement is admissible against a party under Evidence Code section

1223 if: "(a) [t]he statement was made by the declarant while participating in a

conspiracy to commit a crime or civil wrong and in furtherance of the objective of that

conspiracy; [¶] (b) [t]he statement was made prior to or during the time that the party was

participating in that conspiracy; and [¶] (c) [t]he evidence is offered either after

admission of evidence sufficient to sustain a finding of the facts specified in subdivisions

(a) and (b) or, in the court's discretion as to the order of proof, subject to the admission

16
of such evidence." (Gann, supra, 193 Cal.App.4th at pp. 1005-1006; italics added;

People v. Hardy (1992) 2 Cal.4th 86, 139 (Hardy).) The acts and declarations

constituting a conspiratorial agreement "are admissible as 'part of a transaction' that is in

issue and therefore outside the hearsay rule." (1 Witkin, Cal. Evidence (5th ed. 2012)

Hearsay, § 135, p. 990.)

The relevant standards for admissibility are set forth in People v. Herrera (2000)

83 Cal.App.4th 46, 63: "In order for a declaration to be admissible under the

coconspirator exception to the hearsay rule, the proponent must proffer sufficient

evidence to allow the trier of fact to determine that the conspiracy exists by a

preponderance of the evidence. A prima facie showing of a conspiracy for the purposes

of admissibility of a coconspirator's statement under Evidence Code section 1223 simply

means that a reasonable jury could find it more likely than not that the conspiracy existed

at the time the statement was made." (See 1 Witkin, Cal. Evidence, supra, Hearsay,

§ 134, p. 989.)

Assuming such prima facie evidence of a conspiracy is presented, the trial court

may admit evidence under Evidence Code section 1223 to show, circumstantially, that

such an agreement "may be inferred from the conduct of the defendants mutually

carrying out a common purpose in violation of a penal statute." (Gann, supra, 193

Cal.App.4th at pp. 1005-1006.) For these purposes, " '[W]hether statements made are in

furtherance of a conspiracy depends on an analysis of the totality of the facts and

circumstances in the case.' " (Ibid., citing Hardy, supra, 2 Cal.4th at p. 146.)

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 B. Procedural Background on Expert's Qualifications; Analysis

In this case, the jail calls included a number of specialized terms and references

that were arguably so beyond the common experience that the opinion of an expert was

needed to assist the jurors, as triers of fact. (People v. Xue Vang (2011) 52 Cal.4th 1038,

1044; Evid. Code, § 801, subd. (a).) The prosecution presented Detective Williamson as

an expert who was familiar with jail security issues and gang communications, and who

could interpret the terminology appearing in the calls. Michael contends the trial court

abused its discretion in allowing such testimony. Determining expert qualifications is

discretionary with the trial court, and the court's rulings on the matter are reversible where

a showing of a clear abuse of discretion can be made. (People v. Jones (2012) 54 Cal.4th

1, 57; People v. Kelly (1976) 17 Ca1.3d 24, 38.)

When the prosecutor sought to play about two hours of such recordings for the

jury, as communications made in furtherance of a conspiracy to furnish drugs, defense

counsel twice asked for a hearing under Evidence Code section 402 on Detective

Williamson's qualifications and the bases for his opinions about gangs in jail. The court

indicated the prosecutor would need to lay a proper foundation to qualify Detective

Williamson as an expert. (Evid. Code, § 801, subd. (a).)

A defense motion in limine to exclude the jail calls and phone identifications as

unreliable was denied without prejudice. The court anticipated that Michael's attorney

could attack the reliability of the expert's opinion as to its weight as evidence. In

response to defense counsel's objection that the jail calls were hearsay and not reliable,

the trial court explained that since they were being alleged to be "statements in

18
furtherance of a conspiracy," they would come in under a clearly recognized hearsay

exception (i.e., Evid. Code, § 1223). Also, since different PIN numbers were used in the

calls, the court stated that evidence was relevant as showing there were various co-

conspirators who made further attempts to deceive or mislead.

Once the testimony began, Cristina's attorney made a standing objection, joined by

Michael, for improper opinion and lack of foundation. It was overruled. Defense

counsel made another objection that Detective Williamson's opinions on why there were

some pauses in the recordings were unduly speculative, but it was also overruled.

In explaining his qualifications, Detective Williamson testified he began working

in county jails immediately after his 2004 graduation from the police academy, and he

initially received 24 hours of training each year, on gang and narcotics issues. His on-

the-job training included monitoring incarcerated gang members in cooperation with the

Oceanside Police Department, and working as a "handler" for an informant. In 2009, he

started work as an area investigator to follow up on crimes committed in jail. In 2010, he

was assigned to the Detentions Gang Unit, and obtained "over 300 hours of gang- and

narcotics-related training." This was the first time he had testified on these subjects as an

expert.

Detective Williamson's current assignment at the jail required him to monitor and

document gang members who were in custody, by conducting investigations, executing

search warrants, and searching inmates suspected of drug smuggling. He worked with gang

members on a daily basis. He found in his work that inmates tend to communicate in code

when they are talking about something illegal. By listening to jail phone calls and other

19
communications, he could now recognize patterns "for what to expect, what we're going to

be getting and how to catch it." He stated, "the more odd the conversation sounds, the less it

makes any sense to anyone, it seems the more likelihood that something illegal's going on."

Williamson explained he had listened to several CD recordings of Michael's and

Cristina's voices, and could identify them in many of the calls using different PIN numbers

over several months. He also heard many unidentified male voices on the recordings who

were communicating with Michael and Cristina on topics that seemed to include the use of

such expressions for arranging transactions. When there were pauses in the conversations,

they likely indicated that a participant was taking time to recall an arranged code word for

something illegal. In many such phone calls, the voices switched back and forth between

ordinary conversational rhythms and more interrupted types of expression. This indicated

that callers seemed to be using a prearranged set of code words about drugs and methods for

smuggling them.

The defense continued to claim that the factual questions about the meaning of the

calls should be left to the jury, but the court explained that Williamson's expertise was of

the type gained on the job, and the jury would be allowed to give his expert testimony the

weight it deserved pursuant to the CALCRIM instructions to be given on that topic (e.g.,

Nos. 332, 360). To improve the jury's understanding, the written transcripts of 15 jail

calls were made available to the jury as court's exhibits, but were not admitted into

evidence.

Based on Detective Williamson's experience in dealing with coded language over

his eight years on the job, the court ruled that he was qualified to testify about gang

20
interactions in custody, including drug smuggling, even if he were assumed to be filtering

the information "through his biases, if you will, as an investigating officer." The court

noted defense counsel could cross-examine the witness about his experience level, and

could argue "other reasonable interpretations" to the jury. The trial court could

reasonably determine that the jury would benefit from hearing this expert testimony on

the meaning of some of the words and arrangements discussed in the jail calls. The court

had an adequate basis to decide that Williamson had developed the necessary expertise to

present the opinions he had formed on the meaning of some of the terms used in them,

and there was no abuse of discretion in this respect.

C. Substantive Arguments on Expert Testimony

Even assuming arguendo that coded communications by jail inmates are proper

subjects of expert testimony, Michael claims the conclusions drawn by Detective Williamson

lacked evidentiary support in several ways. First, Williamson had chosen only some of the

Michael-Cristina telephone calls to listen to, dated from around the times that packages were

intercepted, because there were so many calls (four to five times a day, 45 minutes per call).

Michael argues this selectivity unfairly targeted statements that could be "interpreted" as

"coded language" references to drugs.

On the record provided, it was not an unreasonable investigative tactic for

Detective Williamson to decide that he would only listen to some of the Michael-Cristina

telephone calls that occurred around the same times that packages were intercepted, over

eight months, since he would not have time to do anything else if he listened to all of

21
them. Michael has not shown that this was an unreasonable sampling method, and the

jury could weigh the evidence in that context.

The recorded jail calls fell into three groups, first from August 2010, then

November 2010, then numerous calls from April 2011. Michael claims the

interpretations placed on certain language used in the recorded phone calls were

incorrect, and alternative interpretations are possible or likely. For example, in the

August 2010 call, Michael told Cristina to send all the album covers or music to "Lil'

Bro" and make sure they were wrapped right. She said she had received an e-mail

confirmation the shipment was made. Although Williams thought that they were talking

about a drug shipment, not music, Michael and Cristina did have a music business and

Michael did have a brother. Not all references to music or CDs in the recordings were

interpreted by Williamson as having to do with drugs.

Two days after the August 2010 call, a "legal mail" package addressed to another

inmate and containing heroin was intercepted, and it had Cristina's fingerprint on it. That

handwriting was similar to a letter she sent to Michael around the same time.

In the November 2010 calls, Michael had recently been moved to the Vista facility.

On one of the calls, a man told Cristina that he got "them pictures and shit," apparently from

a previous mailing. When Michael told Cristina at that time that he did not want to ask other

inmates for anything, he could have been talking about necessary food and supplies, as

opposed to using the telephone PIN numbers or names of other inmates to arrange drug

package deliveries.

22
 Likewise, when Michael asked that Cristina look for a 24-hour postal place, and she

said she hadn't heard of them, Michael explained "I know in the state they be hav[ing] them."

He and Cristina talked about "having Ray get at me," or using the 24-hour postal place for

Ray. Although Williams interpreted that reference to a postal place as meaning there might

be a compromised jail staff member who was receiving drug packages (since an item sent in

November 2010 did not have canceled postage on it), Michael argues there could have been

another explanation.

By the time of the nine April 2011 calls, Michael was back at the George Bailey

facility. Some of the calls were from unidentified voices and used PINS from other inmates,

and Cristina set up several of the calls as three-way calls. Williamson gave the opinion that

gang members on the outside were using three-way calls to avoid violating their parole

conditions that prohibited contact with fellow gang members. Many topics were discussed

involving money, Judy and Ray, and taking care of people on the outside. Due to Michael's

wealth, he was able to help other gang members and Cristina assisted him in doing so.

Williamson gave the opinion that Michael was acting like a Robin Hood who was creating

loyalty to his cause.

Michael and Cristina also talked about "duck things," apparently the photo mailers

that were sometimes used to send drugs. Since several books had been recently intercepted,

Williamson believed that the smuggling plans were being changed again.

Michael admitted on cross-examination that all his calls to Cristina were in code, to

protect them from police interference in concerts or rap events. When he and Cristina and

their messengers used the terms Judy and Ray, they were referring to contact persons from

23
the Mexican Mafia that Cristina was required to contact, to provide drugs to protect Michael.

Thus, Michael argues that Judy and Ray were real people participating in the duress being

exerted on him, and not necessarily voluntary smuggling references. At one point, Cristina

said she "spoke" to Rudy at 2:00, so Michael argues Rudy must have been a person and not a

means of messaging about sending drugs at a certain time.

When an unidentified male called Cristina on April 5, 2011, because Michael was in

the hole and needed a messenger, the man told her, "he like Judy and Ray, and then that he'll

call you ASAP, maybe like two, three in the morning." Williamson explained the message

as saying, "whatever didn't work out, get it fixed and get it done." In another call, the male

told Cristina that Michael wanted to know what was up with Judy and Ray, and Cristina said

she talked to them.

In a long call, Michael told Cristina that Judy "didn't make it through there." Michael

then told Cristina to "tell him not to hit" him again. On cross-examination, he explained that

police agents or enemy inmates had been setting him up for exposure, so the drug plans were

not feasible. Williamson said that recording could be interpreted as meaning the shipping

scheme was being discontinued.

Michael offers another interpretation of the questioned "smuggling" terms, with

respect to a taped argument Michael and Cristina had about her use of the name "Tish" in an

e-mail. Michael said to Cristina she should have used the "joke name," and asked, "now why

would you write that girl, uh, Judy — uh, uh, Rudy's name, uh, uh, Tish. [unin] [¶] That's too

much information." Williamson testified that this communication supported his conclusion

that Judy, Rudy and Ray were made up code names for drugs. Michael says the evidence

24
does not support those conclusions, because the woman Tish could have been also referred to

as Judy or Rudy, so that Williamson was wrong when he concluded that Judy was a

reference to drugs, not a person.

All of this testimony presented different suggested meanings of the terms Judy and

Ray or Rudy Huxtable, and it was up to the jury to evaluate the expert testimony

interpreting the jail phone calls for the purpose of giving it the weight it deserved. The

court provided as court exhibits the written transcripts of the jail calls, for accuracy of

listening. The meaning of the terminology and names used in the calls was not

immediately obvious, and the ongoing discussions about sending music and photos,

finding postal places and taking care of errands and people formed a pattern that could be

interpreted through the use of expert testimony, because it was outside the realm of

everyday experience for people unfamiliar with incarcerated gang members. Detective

Williamson was properly allowed to offer interpretations for the jury to consider. The

jury was told that it need not accept expert opinion as true and correct, and that it "may

disregard any opinion that you find unbelievable, unreasonable, or unsupported by the

evidence."

Even though Michael offers alternative explanations for the expressions used in

the recorded calls, both in his testimony and in the briefs on appeal, he cannot show that

there was no foundation in the recordings for the conclusions that Williamson drew. The

trial court did not err in allowing this expert testimony to be presented to enable the jury

to have the tools for determining whether the statements made were in furtherance of the

charged conspiracies, based on an " 'analysis of the totality of the facts and circumstances

25
in the case.' " (Gann, supra, 193 Cal.App.4th at pp. 1005-1006.) The trial court acted in

compliance with the Evidence Code and within its discretion in ruling on the evidence

offered.

D. Arguments on Prejudicial v. Probative Value

Based upon his views of the evidence, Michael argues that the trial court was

unjustified in allowing the full two hours of recordings to be played for the jury. Many

topics were discussed, including Michael's health, legitimate music business matters, and

Cristina's problems. Michael claims that even if some of the statements in them were

admissible as statements of coconspirators in furtherance of a conspiracy, other statements

were inadmissible or unduly prejudicial. Specifically, the extraneous material in the

recordings included profanity, racial and gender slurs, and gang references, and

cumulatively, Michael argues the prejudicial value of the tapes and transcripts outweighed

their probative value. (Evid. Code, § 352.) Since he had admitted to smuggling drugs, but

only under duress by members of the Mexican Mafia, he argues he was entitled to have the

jury evaluate his credibility without so much prejudicial taped jail call evidence.

When the prosecutor indicated the entirety of the jail calls would be played (except

for one 45-minute one), defense counsel raised numerous grounds of objection, which the

trial court deemed to be continuing objections on admissibility of the calls and the gang

expert's analysis of them. When Michael agreed that one very long call need not be

played in its entirety, that did not operate to waive the previous objections. We find no

indication that Michael has somehow forfeited objections to admission of all or portions

of the recorded calls.

26
 On the merits, even where portions of a witness's taped statements are properly

admitted, the entirety of the recording is not necessarily admissible as well. (People v.

Riccardi (2012) 54 Cal.4th 758, 803-804.) The inquiry should be whether the playing of

an entire recording would properly correct any misimpression created by playing only

portions of it. (Ibid.)

Normally, error in admitting evidence is subject to the reasonable probability test,

asking whether the verdict would have been more favorable to the defendant absent the

error. (People v. Earp (1999) 20 Cal.4th 826, 878.) If a trial court has erred by admitting

excessive or extraneous recorded materials, such error may be deemed harmless, if it is

not reasonably probable on the record that a different result would have been reached

absent the error. The reviewing court examines the question in light of the effect of other

admissible evidence or reasonable inferences therefrom. (People v. Partida, supra,

37 Cal.4th at p. 439.)

However, where the admission of evidence was erroneous under state law and

further operated to make a trial fundamentally unfair, due process violations may have

occurred, and Michael argues that this trial was unfair. (People v. Partida, supra, 37

Cal.4th at p. 439.)

The trial court allowed the playing of most calls in their entirety, to give context to the

portions being focused on by the prosecution. This was in compliance with Evidence Code

section 356, to permit the jury to evaluate a code word or expression being identified, within

the context of the entire recording, as "necessary to make it understood." (Evid. Code, § 356.)

It was appropriate to use the various calls to give context and meaning to the individual

27
terms used in them, but there were still uncertainties about the exact subjects of the

discussions. There were pauses around the use of some of the terms, which led Detective

Williamson to believe that those pieces of conversation were discussing illicit activities and

using coded language. Other conversations that flowed more normally sounded more like

ordinary speech.

Together with the physical evidence of the shipments, as prima facie evidence of a

conspiracy, the jail calls qualified as admissible circumstantial evidence that Michael and his

associates were engaged in conduct that was "mutually carrying out a common purpose in

violation of a penal statute." (Evid. Code, § 1223; Gann, supra, 193 Cal.App.4th at

pp. 1005-1006.) The probative effect of the recordings was properly found to outweigh their

prejudicial effect. When Michael testified, he had several outbursts of temper during cross

examination that caused the court to strike his direct testimony, although the court reversed

that order when Michael submitted to cross examination the next day. The jury had a fair

opportunity to evaluate Michael's voice and demeanor in the recordings and also in his

testimony. The trial court did not abuse its discretion in allowing the recordings to be played

as a whole.

Due to the lack of evidentiary error, we need not reach Michael's arguments about the

application of harmless error theory or federal constitutional standards for evaluating alleged

error. (Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24.)

28
 III

CONSPIRACY ISSUES: SUFFICIENCY OF THE EVIDENCE

Michael next contends the evidence only supported a conclusion that he and Cristina

reached only a single agreement to make continuing shipments of drugs into jail, so that as a

matter of law, four of his conspiracy convictions must be reversed for insufficient evidence.

(See, e.g., Meneses, supra, 165 Cal.App.4th at pp. 1669-1671.)

A. Applicable Standards

Basic definitions of the offense of conspiracy, under section 182, subdivision (a)

require " 'proof that the defendant and another person had the specific intent to agree or

conspire to commit an offense, as well as the specific intent to commit the elements of

that offense, together with proof of the commission of an overt act . . . .' [Citations.]

Conspirators must agree to the commission of a criminal act. They also have to possess

certain kinds of knowledge and criminal intent. In other words, they agree to the act

while possessing a given mens rea. It would be imprecise to say that they 'agree' to have

a certain knowledge or mental state. Instead, to satisfy the elements of traditional

conspiracy, they agree to an act, and they do so while possessing the required mental

state." (Johnson, supra, 57 Cal.4th at pp. 263-264; original italics.)

In evaluating this claim of insufficiency of the evidence to support each of the

conspiracy convictions, this court views the evidence in the light most favorable to the

prosecution, and we presume, in support of the judgment, the existence of each fact that the

jury could reasonably have deduced from the evidence. (People v. Stanley (1995) 10 Cal.4th

764, 792-793.)

29
 B. Testimony and Analysis

Michael cites and applies the factors laid out in People v. McLead, supra, 225

Cal.App.3d at p. 920, for considering how many conspiracies were proven. He would

conclude from the evidence that he and Cristina had a singular objective of smuggling drugs

into jail, because each of the five packages was shipped pursuant to an existing agreement

already in place, and that the coded phone calls operated to carry it out. He contends the

same motives and the same customers (inmates in the jail population) were always involved.

(Meneses, supra, 165 Cal.App.4th at p. 1672.)

Michael fails to recognize that the jury could reasonably have deduced from the

evidence that his many recorded conversations with Cristina and representatives of

Michael demonstrated that Michael was creating and adapting separate agreements to

accomplish the targeted offenses, according to the changing circumstances. While

Michael was confined at the George Bailey facility, he had local confederates who

cooperated with him, and different forms of packaging were used, including legal mail.

As those packages were intercepted, other methods were developed, such as use of duck

photo mailers and shipments of books, some with pages glued together with heroin.

When Michael was located in Vista, there were not as many phone calls involving

other cooperating participants or addressees. During the overall eight or nine month

period that the shipments were going on, different means were used, including different

messengers, instructions and methods of packaging. Some, but not all, of the phone calls

suggested there was a jail employee who might be involved ("24 hour postal place").

30
 The record contains sufficient evidence to support jury conclusions that Michael

and Cristina reached mutual understandings to accomplish these separate acts, and they

evidently were creating more than one unlawful design, using a network of participants,

to accomplish the target offenses. (Johnson, supra, 57 Cal.4th at pp. 263-264, 266.)

There was evidence of different and individualized overt acts committed with and by

unidentified third parties, such as other friendly inmates, or the Mexican Mafia

representatives who provided the drugs, took money from Cristina for them, and showed

her how to package them in several ways. Michael and Cristina anticipated in each

instance that the drugs being shipped would be passed on to other participants to provide

in jail, as sellers or purchasers. More than a single design was arranged for seeking an

unlawful result, in different ways. (Braverman, supra, 317 U.S. at p. 53.) Sufficient

evidence supports all five of Michael's conspiracy convictions.

IV

SUPPLEMENTAL BRIEF: INVESTIGATION INTO POTENTIAL JUROR MISCONDUCT

A. Background

Similar to what Cristina's appeal previously argued, Michael's contention is that the

trial court failed to carry out an adequate investigation of potential juror misconduct. During

the cross-examination of a prosecution witness, Detective Cahill, an incident occurred in

which he apparently smiled and/or winked at several jury members, and some laughter

followed. Shortly thereafter, while out of the presence of the jury, counsel for Michael told

the court, "Apparently while we came out for sidebar last time, Mr. Cahill winked at Juror

Nos. 1, 2, and 13 and they started laughing together. That just needs to go on the record. I

31
didn't see it but according to both defendants—I haven't talked to court staff yet but

apparently he's making inappropriate faces to the jury while we're out of their presence."

The court responded, "He certainly shouldn't do that." The prosecutor spoke up, "I

question the source of that information, your Honor." The court replied, "Yeah. All right.

Well, he certainly should be cautioned not to do that."

Cristina's attorney expressed concerns about such possible communication between

Detective Cahill and the jury, and requested that the court admonish the witness or the jury.

After further inquiry by Michael's attorney on what had actually happened, the court asked

what form any such admonishment should take. Cristina's attorney requested "that there

should be no communication between this witness and the jury outside the presence of the

Court and counsel. If it occurred." Detective Cahill spoke up, "It never occurred." The

court replied to counsel, "I think he understands as a professional law enforcement officer

that this is totally impermissible. So consider him admonished."

Michael's attorney requested that the judge poll the three involved jurors, on the

basis that in the courtroom, Michael and Cristina each saw Cahill laughing with several

jurors and winking at one, at a time when counsel was going out for a conference in the

back hall. After further proceedings, both defense attorneys moved for a mistrial on that

ground. The court denied the motions, stating, "I don't think there's any credible

evidence to, ah, support that motion so that motion is denied."

B. Applicable Standards

" ' "When a trial court is aware of possible juror misconduct, the court 'must "make

whatever inquiry is reasonably necessary" ' to resolve the matter." [Citation.] Although

32
courts should promptly investigate allegations of juror misconduct "to nip the problem in

the bud" [citation], they have considerable discretion in determining how to conduct the

investigation.' [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.' "

(People v. Virgil (2011) 51 Cal.4th 1210, 1284 (Virgil); People v. Ray (1996) 13 Cal.4th

313, 343 (Ray).) The courts will not reach issues of prejudice unless jury misconduct is

found. (People v. Collins (2010) 49 Cal.4th 175, 242.)

On appeal, we examine the trial court's rulings on the issue for any abuse of

discretion. (Virgil, supra, 51 Cal.4th at p. 1284.) In this context, the courts assess likely

prejudice under this standard by determining whether, objectively viewed, the matter was

"inherently likely to have influenced the juror." (People v. Marshall (1990) 50 Cal.3d

907, 951.) We ask whether the record shows a substantial likelihood that at least one

juror was influenced by exposure to extrinsic matter that directly related to the issues at

trial. (Ibid.) "[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." (Ray, supra, 13 Cal.4th at p. 343.)

If a jury is inadvertently given and considers extraneous evidence, the incident is

not considered to be jury misconduct. (See, e.g., People v. Cooper (1991) 53 Cal.3d 771,

836 [a transcript not in evidence was mistakenly sent to the jury room].) In such a case

no presumption of prejudice arises. "Such error is reversible only if it is reasonably

probable that a result more favorable to the defendant would have been reached in the

absence of the error." (Ibid.)

33
 In People v. Ryner (1985) 164 Cal.App.3d 1075 (Ryner), the appellate court found

the trial court erred in concluding no misconduct had occurred, when a testifying officer

had engaged in conversation with several jurors during a break outside the courtroom.

(Id. at p. 1080.) Even though no discussion of the merits of the case took place, the

conversation was deemed to be impermissible, because it might well have caused the jury

to accord the officer's testimony more credibility than otherwise appropriate. (Id. at

p. 1082.) "By engaging Officer Boyd in an amiable discussion of police work and other

topics of mutual interest, we conclude that the jury members did a disservice to

appellant's right to a fair and impartial tribunal." (Ibid.) However, neither the

misconduct nor the trial court's mistake required reversal, because the incident was

relatively trivial and the officer was not a key witness. (Id. at p. 1083.)

Although Michael seeks to have us apply a de novo standard of review for mixed

questions of law and fact, regarding the adequacy of this investigation, it would not be

appropriate to do so. (See People v. Cromer (2001) 24 Cal.4th 889, 900 [the first inquiry is a

matter of determining the historical facts, and deferring to the trial court's factual findings;

the second "requires application of an objective, constitutionally based legal test to the

historical facts"].) He has not given any reasoned argument for why the usual abuse of

discretion test should not apply here. (Virgil, supra, 51 Cal.4th 1210, 1284.)

C. Jury Instructions; Investigation

The court explained to the jury panel during voir dire that the only evidence to be

considered would be "the testimony of witnesses under oath and some exhibits which

may be received." When testimony began and when the case was submitted to them, the

34
jurors received more instructions about their duty to decide the case based on the

evidence presented, and not on matters of "empathy, sympathy, bias, prejudice, public

opinion, public feeling." (CALCRIM Nos. 200, 222, 223, 302.)

Numerous sidebar conferences had been called throughout trial to discuss

evidentiary objections. After the initial discussion about Detective Cahill's behavior in

front of the jury, the prosecutor updated the court as follows: "Your Honor, if I may. I've

got a lot going on. I neglected to inform the Court, um, that during this whole alleged

incident, um, defendant [Michael] was mouthing to Cahill something to the effect,

'Motherfucker, got you.' Like got you in a lie or something like that. Ah, Investigator

Cahill looked away and looked at this, ah, investigating officer, Williamson. Um, and

they were, ah—had some communication with each other. This was all witnessed by

Deputy District Attorney Lisa Moffatt, who was present in the courtroom. Ah, that

was—I was informed of that over the lunch hour by Miss Moffatt." At that point, the

court did not deem it necessary to investigate further.

When Michael's attorney renewed the mistrial motion, the court ruled that "it's

been decided," and "[t]here's no credible evidence that that occurred." Also, the court

denied a second request to poll the jurors on the issue. Later, Michael testified about how

he hated the police and he was offended when one of them laughed and winked at some

jurors during his trial.

D. Contentions and Analysis

Michael contends the trial court did not conduct an adequate investigation into the

possible effects upon the jurors of Detective Cahill's conduct, and that reversal is

35
required. He claims that the trial court had been alerted to affirmative evidence that

might show there was good cause to remove a juror. (People v. McNeal (1979) 90

Cal.App.3d 830, 840.)

Initially, the court heard argument from both defense counsel about their clients'

observations about the interaction, while Detective Cahill was present, and then it

effectively admonished him by reminding him of proper courtroom conduct. The court

also heard another explanation for what happened, when the prosecutor reported that his

colleague had seen Michael initiating communication with Detective Cahill, possibly

causing a visible response or reaction.

After hearing from all parties about the interchanges during Detective Cahill's

testimony, the court determined there was no "credible evidence" that misconduct

occurred, and denied the motion for a mistrial. The court reconsidered the matter at

Michael's attorney's request, and found that under all the circumstances, it was

unnecessary to poll the jury.

"Not every incident of potential misconduct requires further investigation."

(Virgil, supra, 51 Ca1.4th at p. 1284.) The trial court had a reasonable basis to conclude

that these interactions were fleeting, and the concerns raised by defense counsel were

speculative in nature. On this record, the court acted appropriately in concluding that an

informal method of resolving the matter was sufficient, by asking for explanations,

informally admonishing the witness, and making a discretionary decision to move on

with the case. (Ibid.; People v. Hayes (1999) 21 Ca1.4th 1211, 1255.)

36
 The court would also have been justified in concluding that even if the detective's

reported conduct did occur, such relatively innocuous activity would most probably not

have adversely affected the jurors' impartiality in performing their duties, in light of the

instructions given to them. (See People v. Avila (2006) 38 Cal.4th. 491, 604; Ryner,

supra, 164 Cal.App.3d at p. 1083.) The jurors received instructions not to discuss the

case and not to consider matters outside of the evidence. (See People v. Sanchez (2001)

26 Cal.4th 834, 852; People v. Holt (1997) 15 Cal.4th 619, 662 [jurors are presumed to

follow the court's instructions].)

The record shows that numerous sidebar conferences had been going on from the

outset of the case, and the court had repeatedly urged counsel to respect the jury's time

and move on with the arguments. We do not speculate why this detective apparently

winked at jury members or why laughter ensued, whether because of lengthy delays

during trial or friction with a defendant about testimony being given. The trial court's

resolution of the investigation matter was not an abuse of discretion, particularly in light

of the extensive evidence on the merits of the charges as presented by other witnesses.

Michael acknowledges that there is substantial evidence to show he conspired with

Cristina to have drugs sent into the prison, but contends that because of his own extensive

financial assets, he did so as a result of the duress exerted by other inmates. He was

given the opportunity to present this theory, but the jury did not accept it. The record

does not support a conclusion that these circumstances led to a potential pro-prosecution

bias on the part of any jurors. (See People v. Seaton (2001) 26 Cal.4th 598, 676.) Under

all the circumstances shown, the court could reasonably decide that the procedural

37
problem presented did not warrant further investigation or delay. (Virgil, supra, 51

Cal.4th at p. 1284; Ray, supra, 13 Cal.4th at p. 343.) It was not error to deny the defense

motion for mistrial.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

38