NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IVAN VASQUEZ, No. 07-55707
Petitioner - Appellant, D.C. No. CV-05-02267-DMS
v.
JAMES WALKER,
Respondent - Appellee.
ALBERTO RENTERIA, No. 07-55715
Petitioner - Appellant, D.C. No. CV-05-02266-DMS
v.
JAMES WALKER, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted November 6, 2009
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and BEA, Circuit Judges, and HART, ** District Judge.
Ivan Vasquez and Alberto Renteria, California state prisoners, appeal a
federal district court’s order denying their petitions under 28 U.S.C. § 2254 for
writs of habeas corpus. Appellants contend an opinion by the California Court of
Appeal—which affirmed the San Diego Superior Court’s denial of their motion for
a new trial based on alleged juror misconduct—violated Appellants’ due process
rights under the Fourteenth Amendment and right to a fair trial under the Sixth
Amendment.
We have jurisdiction under 28 U.S.C. §§ 1291, 2253(c). When reviewing a
district court’s denial of habeas corpus relief, we review the district court’s legal
holdings de novo and its factual findings for clear error. Buckley v. Terhune, 441
F.3d 688, 694 (9th Cir. 2006) (en banc). We affirm because there is no evidence in
the record that an extraneous influence affected the jury deliberations. Thus, on
Appellants’ moetion for new trial, the trial court did not violate Appellants’
constitutional rights by excluding from evidence the declarations of two jurors
addressing what happened in the jury room.
**
The Honorable William T. Hart, United States District Judge for the
Northern District of Illinois, sitting by designation.
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Each Appellant was convicted of two counts of assault with a deadly weapon
by means of force likely to cause great bodily injury “for the benefit of, at the
direction of, or in association with a criminal street gang with the specific intent to
promote, further or assist in criminal conduct by gang members,” in violation of
California Penal Code §§ 245(a)(1), 186.22(b)(1).
Before sentencing, Appellants moved the Superior Court for a new trial. In
support, Appellants filed with the court, inter alia, declarations from two of the
trial jurors. The jurors declared that, during deliberations, the foreman read the
jury instructions to the jurors, but then incorrectly stated the defendants aided and
abetted the attack if they were present but refused to intervene. Further, the jurors
declared the foreman refused to allow all but one of the other jurors to read the
written jury instructions. After holding four hearings, the Superior Court denied
Appellants’ motion for a new trial. The California Court of Appeal and the
California Supreme Court denied their petitions on this same basis, as did the
federal district court.
Absent evidence of some “extraneous influence” on the jury, Supreme Court
law that was well-established at the time of Appellants’ trial, “flatly prohibited the
admission of juror testimony to impeach a jury verdict.” Tanner v. United States,
483 U.S. 107, 117 (1987); see also Fed. R. Evid. 606(b); Cal. Evid. Code § 1150.
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The same rule applies when a defendant raises a Sixth Amendment challenge to a
jury verdict based on improper influence. Estrada v. Scribner, 512 F.3d 1227,
1238 (9th Cir. 2008).
Here, the only evidence presented was evidence of internal jury
deliberations. The declarations of the jurors were silent with respect to the reason
for the foreman’s misstatement of the law. Further, the foreman’s refusal to allow
all but one juror to read the instructions is likewise an internal, not external,
influence on the jury’s deliberations. The trial judge read the jury instructions to
the jury in open court, and the foreman read those instructions to the jury again
during their deliberations. Further, if any juror had a question about the jury
instructions and whether the foreman’s interpretation of them was correct, the jury
could have asked the trial court a question to clarify the meaning of those
instructions.
Counsel for Appellants interprets an extraneous influence to include a
juror’s erroneous legal interpretation of the jury instructions. This interpretation is
not correct. Federal courts have interpreted an “extraneous influence” as an
external influence on the jury. See, e.g., Mattox v. United States, 146 U.S. 140,
148–53 (1892) (holding admissible juror testimony describing how, during the
deliberations, the jury read outside information not admitted into evidence). For
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example, a juror’s discussion of his mother’s murder while deliberating in an
unrelated case was deemed “extraneous evidence,” see Estrada, 512 F.3d at 1238,
as was a jury’s discussion of a highly publicized telephone call, excluded from
evidence by the trial judge, in which the caller took credit for the crime at issue in
the case, see Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).
In contrast, federal courts have deemed evidence of a juror’s mental
processes—for example, a juror’s ability to hear or comprehend evidence—as
evidence of internal influences that a trial court cannot admit into evidence to
impeach a jury verdict. See Tanner, 483 U.S. at 118; see also United States v.
Rutherford, 371 F.3d 634, 640 (9th Cir. 2004) (holding that the jury’s
consideration, during deliberations, of the defendant’s failure to testify was
inadmissible evidence of internal influences).
Irvin v. Dowd, 366 U.S. 717 (1961), does not alter our analysis. In Irvin, the
issue was whether the trial court should have granted a defendant’s motion to
change venue where the prosecutor had so widely publicized the defendant’s
confession to the murders that all the jurors were unduly influenced before the trial
even began. Id. at 727. Evidence that the jury pool is tainted in a particular venue
due to press coverage is evidence of an external influence on the jury. By contrast,
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this case involves evidence of a juror’s own internal mental processes, evidence
that was properly excluded by the trial judge in accordance with Tanner.
Here, the decision of the California Court of Appeal was not contrary to
clearly established federal law. Although the Court of Appeal’s decision relied on
California law, the decision stated the same distinctions between admissible
evidence of external influences on jury deliberations and inadmissible evidence of
jurors’ mental processes. Because there is no evidence in the record of any
extraneous influence on the jury, Appellants fail to meet the burden to prove the
state court’s decision was either (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States”; or (2) “based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
AFFIRMED.
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