People v. Clark

Filed 12/23/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091176

Plaintiff and Respondent, (Super. Ct. No.
STKCRFECOD20170007609)
v.

ROBERT ARTHUR CLARK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, Xapuri
Villapudua, Judge. Affirmed.

Spolin Law, Aaron Spolin and Annette Gifford, Retained Counsel for Defendant
and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez,
Supervising Deputy Attorney General, Catherine Tennant Nieto, Deputy Attorney General,
for Plaintiff and Respondent.

Defendant Robert Arthur Clark appeals from his conviction for second degree
murder and true findings on the associated firearm enhancements. On appeal, he argues

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part II of the Factual and Procedural Background and
parts I and II of the Discussion.

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the trial court erred by inquiring into the identity of a holdout juror and subsequently
dismissing that juror, as well as by failing to grant his motion for a new trial based on juror
misconduct. He also argues the trial court was biased against him, thus violating his right
to due process and a fair trial. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s case are irrelevant to the contentions he raises on
appeal. Suffice it to say that defendant, his girlfriend, and his friend used
methamphetamine nearly every day. They heard a female acquaintance had been raped
and that the female acquaintance was also coming into a large inheritance. Under a
misguided attempt to share in her inheritance, defendant, along with his girlfriend and
friend, confronted the alleged rapist and defendant shot and killed him. While the victim
of the shooting declared, as he was dying, that it was defendant who shot him, and
defendant’s girlfriend and friend corroborated that declaration through their testimony at
trial, other witnesses saw only defendant’s friend’s truck at the scene of the shooting and
not the vehicle defendant occupied or defendant himself.
I
Facts Pertaining To Alleged Judicial Bias
Prior to trial, defendant moved to disqualify the judge presiding over the trial
because he had learned the judge and prosecutor were currently involved in a student
outreach program wherein they visited classrooms together with a defense attorney. They
had completed three classroom visits and would complete one more before participating in
a moot court together. Thereafter, defendant alleged the judge adopted the prosecutor’s
juror questionnaire with minor changes without considering defendant’s questionnaire.
Based on these facts, defendant argued the judge “demonstrated a bias in favor of [the
prosecutor] and against defendant and/or defense counsel.” (Capitalization and bolding
omitted.)

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 The judge answered defendant’s motion, denying the allegations of judicial bias.
The judge explained that the prosecutor “was a volunteer attorney for a program [she had]
been involved with for many years. The program is called ‘First Impressions’. It involves
a Judge and a couple of attorneys teaching a fifth-grade class about the Constitution and
criminal justice. It entails four visits to the classroom for about 45 minutes each session
culminating in a mock trial at the courthouse in [the judge’s] courtroom. The children
learn about the [F]ifth and [S]ixth Amendments and then play the parts of attorneys and
witnesses during the mock trial. [The judge had] participated in this program as an
attorney and as a Judge for over 13 years. Th[at] year [wa]s the first time [the prosecutor]
participated as a volunteer attorney. [The judge] did not ask him to participate. He had
participated in two sessions and [wa]s expected to help with the mock trial which usually
lasts two hours. Judges and attorneys [are] encouraged to do community outreach. [The
judge was] involved in this program as well as the Connie Callahan Inn of the Court and
[she] attend[s] many county bar functions with numerous attorneys including those in the
District Attorney’s office and the Public Defender’s office. As far as [the judge could]
recall, the only contact [she had] ever had with [the prosecutor] outside of his appearing
before [her wa]s the two school sessions of the program. [¶] [She] normally would not
even feel this fact would merit disclosure except that the last school session and the mock
trial were scheduled during this case so out of an abundance of caution [she] disclosed the
information.” Defendant’s motion to disqualify the judge was denied.
II
Facts Pertaining To Alleged Juror Misconduct
After the presentation of evidence, the jury deliberated for nine days. During that
time, the jury sent multiple notes to the trial court. At the beginning of the second day, it
asked to view police body camera footage admitted at trial, as well as defendant’s and his
girlfriend’s interrogations. The jury also requested clarification about which phone
numbers were associated with defendant’s girlfriend as opposed to defendant’s friend.

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 Before deliberations on the fourth day, the court and parties spoke with Juror No. 1
about a concern she had voiced to the clerk. Juror No. 1 said the experience of serving as a
juror was not what she had expected. “We are not supposed to be pressured by others,
right, they are not supposed to be changing our minds, trying to change our minds? [¶]
Because -- we can discuss the case, but they are really pressuring some individuals in there
to try to change their minds. It’s uncomfortable and I’m -- I don’t know how long it’s
going to go on like that, but I just don’t feel we should be pressured by others into
changing our minds.” The court reminded the juror that the instructions encourage jurors
not to hesitate to change their minds, but not to do so simply because of how other jurors
feel. The court assured Juror No. 1 that deliberations can, at times, be uncomfortable but
the jurors should never feel unsafe. Juror No. 1 indicated she was being asked the same
question over and over by the same juror, who at one point apologized to her for his
behavior. She felt like she could not take it anymore because it felt like that juror was
trying to change Juror No. 1’s mind. Juror No. 1 assured the court that she did not feel
unsafe, only uncomfortable, and that the repetitive nature of the deliberations was wearing
on her. Juror No. 1 agreed to continue deliberating and send a note through the bailiff in
the event she felt uncomfortable.
When excusing the jury to the jury room after speaking with Juror No. 1, the court
reread to it the portions of the jury instructions encouraging jurors to talk with one another,
keep an open mind, and treat each other courteously. It did so under the guise that several
days had passed since the jurors were together and it thought reinstructing the jurors on
this point would be helpful. Less than an hour later, the jury requested a readback of the
testimony of a witness who was standing near the victim when the victim was shot. The
jury later advised the court that it had reached a verdict on first degree murder but could
not agree further. The parties agreed to take the jury’s not guilty verdict on first degree
murder and send the jury back to further deliberate. The court encouraged the jury to think
about helpful topics to explore, whether that be through requesting readings of testimony

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or arguments of counsel. The jury later sent a note stating that it wanted to hear portions
of defendant’s friend’s and girlfriend’s testimony that identified defendant as the shooter,
as well as hearing further argument from the parties. The court complied with both of
those requests.
The next day, the court addressed a note the jury had sent before leaving the day
before. The note provided: “We have continued to discuss the case but unfortunately we
have come to an impasse. We feel the discussion has stalled and we are unable to come to
a consensus. We plan on coming in to continue deliberating but we seem stalled.”
Because the jury said it would continue deliberating and did continue deliberating upon
returning to court that morning, the trial court and parties agreed to do nothing about the
note.
On the seventh day of jury deliberations, Juror No. 7 spoke to the court and parties
about concerns he was having with the process. He expressed that there was a single juror
who did not seem to be willing to deliberate. Juror No. 7 elaborated that, “we read the
rules multiple times, and it seems like they are using -- they are not looking at the evidence
and using, ‘I don’t feel comfortable voting that way just because I’m the deciding vote
now. I know I’m the deciding vote.’ [¶] They are continuing to use what-if situations.
We respond with, ‘Okay. Show us the evidence for those what-if situations.’ Then they
remain silent. [¶] We ask them direct questions. They are silent. When we ask them to
argue their side, they are either silent or that person says that they -- ‘I said it all
yesterday,’ or, ‘I feel like I’ve said it multiple times.’ [¶] Well, the whole point is to go
over this multiple times, and this is my first time doing this, but I feel like we’ve really
broken this down. We have an engineer in there, who has tried to do a rough analyzation
[sic] of the bullet trajectory.” The trial court cut Juror No. 7 off at this point and focused
the conversation on the process of the juror’s deliberations instead of the contents of those
deliberations. Juror No. 7 stated the juror had minimally participated in the early days of
deliberations, in fact, “[t]here’s [sic] a few people who are relatively quiet. When asked

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direct questions of those people, those people responded with evidence and their thoughts
and feelings, and it feels like -- I got upset with the person one day so maybe they are even
more withdrawn and then -- that’s my fault. I’m not a perfect person because I -- we have
rules to follow and it looks like they are not following the rules. It’s going beyond
evidence of why they are voting the way they are voting.” Juror No. 7 identified Juror
No. 1 as the juror he had been referencing in his complaints.
After Juror No. 7 went back to continue deliberating, the trial court and the parties
discussed his concerns. Defendant believed Juror No. 7’s concerns were part of the
deliberative process and the jury needed more time to come to a verdict. The prosecution
expressed concerns that Juror No. 1 was not participating in the process and unwilling to
change her mind because she believed herself to be the deciding vote. The trial court
decided to take no further action because it seemed the jury was currently deliberating, it
had received no note from the foreperson, and Juror No. 1 was minimally participating in
the deliberative process.
Later that afternoon, the court brought the parties back to the courtroom because it
had discovered Juror No. 1’s name on its Monday “restraining order calendar,” as a party
requesting a restraining order. The court indicated it had reviewed Juror No. 1’s
restraining order petition and felt it needed to give both parties a copy of the petition, but
would do nothing regarding Juror No. 1 until asked.
The next day court convened, the prosecutor requested Juror No. 1 be removed. He
argued that Juror No. 1’s petition for a restraining order revealed she had a years-long
history of being stalked, harassed, and threatened with death, and that she had also been
poisoned. She claimed in the petition that she had made several police reports concerning
the conduct. When the prosecutor looked up the police reports referenced in Juror No. 1’s
petition, he saw that she had made other police reports alleging domestic violence. The
prosecutor was concerned because Juror No. 1 had said in her questionnaire that she had

6
never been the victim of a crime and had only reported suspicious activity in her
neighborhood to the police.
Juror No. 1 was brought into the courtroom and confronted solely by the court. The
court questioned Juror No. 1 about the inconsistencies between her petition for a
restraining order and her juror questionnaire, as well as the police reports discovered by
the prosecutor. Juror No. 1 said she did not realize her experiences were encompassed by
the questions asked in the questionnaire. As far as failing to disclose she was a victim of a
crime, she had never proven her allegations, she only made reports. As for failing to
disclose she had previously made various police reports, Juror No. 1 asserted she had not
been thinking about the prior police reports when filling out the questionnaire, thus just
forgot to mention them. The court expressed doubt at Juror No. 1’s answers given the
seriousness of the conduct alleged in her petition.
After Juror No. 1 left the courtroom, Juror No. 10 came into the courtroom to
confess that she had spoken about the case to a friend out of frustration toward the long
deliberation process and the toll it was taking on her professional and personal life. Juror
No. 10 told her friend about the holdout juror and revealed the holdout juror’s name to the
friend. Somehow Juror No. 10’s complaints to her friend made the rounds in the
community and Juror No. 1, whom Juror No. 10 identified as the holdout juror, heard
about them. Juror No. 10 apologized to the court and accepted full responsibility and the
consequences. Juror No. 10 told the court she had known Juror No. 1 professionally years
ago but had not seen her in years. She said they currently worked in the same school
district but not the same school. They did not socialize. On the Friday before, Juror No. 1
told Juror No. 10 she had heard about Juror No. 10’s complaints.
Defendant moved for a mistrial or alternatively to remove Juror No. 1 if the court
was inclined to remove Juror No. 10. The prosecutor agreed with the latter suggestion.
The court excused both jurors for misconduct, explaining that Juror No. 1 “seemed
illusive” and her explanations were insufficient, and that Juror No. 10 violated a rule told

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to her every day of jury service. Two alternate jurors were empaneled. Three hours later,
the jury informed the court that it had reached a verdict. The jury found defendant guilty
of second degree murder and found true that he personally used a firearm causing death
and during the commission of a felony.
Defendant later filed a motion for a new trial arguing Juror No. 1 should not have
been removed from service and that both juror and judicial misconduct had occurred.
Defendant attached a declaration from Juror No. 1, in which Juror No. 1 declared that she
remained undecided regarding defendant’s guilt throughout deliberations. On the first day
of deliberations four jurors were undecided and believed some of the witnesses were not
credible because of their drug use. In response, “[a] couple of jurors said they had used
methamphetamine and that if you are on methamphetamine’s/drugs [sic] your memory is
very good. Some of the witnesses said that they couldn’t remember certain things because
they have been on methamphetamine for so long. [¶] . . . The juror said he had used
methamphetamine/drugs and remembered things much more clearly when he was using
drugs more than a normal person can remember. . . . [¶] . . . The four (4) jurors that [sic]
continued to vote undecided said during deliberations that the jurors couldn’t trust the
memories of the people that [sic] used methamphetamine.” As deliberations continued,
things got intense with three jurors “picking” on the four undecided jurors, trying to get
them to change their votes to guilty. Juror No. 2 said she could not stand the stress
anymore and changed her vote to guilty.
Juror No. 1 also declared that “[t]here was one (1) male juror that [sic] said he was
an engineer and said that he felt [defendant] was the shooter because of his height. The
jury discussed the height of the shooter; that it had to be someone tall. The Engineer
discussed the height and angle of the shot; he was doing a lot of math up on the wall. I felt
the jury was lost with the engineer’s math. The engineer said he knew math; he was
always trying to figure things out, with his math problems.” The jurors also did math to
figure out how far away cars were parked from where the victim was shot.

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 Defendant also attached a declaration from Juror No. 2. Juror No. 2 declared she
“felt the jurors were verbally attacking [Juror No. 1] because they went through the
evidence and she continued to vote, Not Guilty.” Juror No. 2 also felt “intimidated” by
three male jurors, including the foreperson and the engineer. She believed they were
intimidating her because they wanted a unanimous verdict of guilty. Juror No. 2 did not
believe defendant “received a fair trial because I consider someone else may have
committed the crime, but the Judge said we were to consider the evidence only.” Juror No.
2 recalled “ the Engineer saying something about the height of the shooter. The Engineer
acted out the crime, and that it had to be [defendant], because the shooter had to be tall.”
Finally, defendant attached a declaration from his attorney. Defendant’s attorney
declared he had attempted to recuse the judge presiding over defendant’s trial because he
felt the judge was biased toward the prosecutor and against him. After the proceedings had
been suspended to hear the recusal motion, the judge’s clerk inquired of defense counsel’s
availability for trial but then the judge did not pick those dates and instead chose the dates
selected by the prosecutor without discussion. The court also denied defense counsel’s
motion to continue to investigate favorable evidence recently disclosed to the defense. The
judge also made numerous adverse rulings related to dismissing Juror No. 1.
Sometime after trial and before the hearing on defendant’s motion for a new trial,
defendant and Juror No. 1 got married. The prosecution introduced jail calls between
defendant and Juror No. 1 at the hearing on defendant’s motion for a new trial, which he
argued demonstrated any error in dismissing Juror No. 1 was harmless given the rampant
misconduct the jail calls revealed on Juror No. 1’s behalf. This misconduct included Juror
No. 1’s romantic feelings for defendant during trial, her communications with defendant’s
brother during trial and his family after trial, and Juror No. 1 taking a photo of defendant
during trial. Despite Juror No. 1’s obvious bias, defendant argued that the acts of
misconduct he cited in his motion were all substantiated by either Juror No. 2’s declaration
or the conversation the court had with Juror No. 7. Specifically, that a juror engineer tried

9
to convince the jury that defendant was the shooter because of defendant’s height based on
his own calculations and that a methamphetamine-using juror commented his memory was
better when he used drugs.
The court denied defendant’s motion for a new trial, finding Juror No. 1 was
properly discharged, and that no juror or court misconduct occurred. The court sentenced
defendant to at total term of 40 years to life, comprising of 15 years to life for the second
degree murder conviction, and 25 years to life for the firearm-use enhancement causing
death. The court imposed a 10-year term on the remaining firearm-use enhancement, but
stayed the term pursuant to Penal Code1 section 654.
Defendant appeals.
DISCUSSION
I
It Was Not Error To Discharge Juror No. 1
Relying on Barber, defendant contends the court erred by eliciting from Juror No. 7
that Juror No. 1 was a holdout juror because it allowed the prosecutor to engage in a
“fishing expedition” designed to discover misconduct that could be used to discharge Juror
No. 1 from jury service. (People v. Barber (2002) 102 Cal.App.4th 145.) Defendant also
argues the court’s reasons for discharging Juror No. 1 were insufficient. We disagree as to
both arguments.
Defendant argues “the prosecutor’s fishing expedition to determine if there was any
way to dismiss Juror No. 1 was directly related to the trial court’s revelation of Juror No.
1’s identity as the lone holdout juror.” Defendant argues his case is like Barber and the
court’s and prosecution’s investigation into Juror No. 1’s misconduct rendered his trial
fundamentally unfair. We disagree; Barber is distinguishable.

1 Further section references are to the Penal Code unless otherwise indicated.

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 In Barber, the foreperson informed the court that it was “ ‘hopelessly deadlocked’ ”
at 11 to 1 after having deliberated in good faith. (People v. Barber, supra, 102
Cal.App.4th at p. 148.) The defense objected to the court questioning the jury.
Nevertheless, the court asked the jurors whether everyone had deliberated in good faith.
Seven jurors said they had; five jurors “answered no.” The court then questioned the five
jurors who “answered no”; they alleged that a single other juror was refusing to deliberate
and identified the juror. The court then permitted both counsel to question the jurors about
the alleged misconduct. (Ibid.) The prosecutor then “extensively examine[d]” the
purportedly offending juror. (Id. at p. 151.) The appellate court held that “the trial court
erred by asking questions of the jurors that revealed the identity of the lone holdout juror,
by allowing the prosecution to examine the holdout juror, and by allowing testimony from
only those jurors who claimed the holdout juror was not deliberating in good faith.” (Id. at
p. 147.)
Unlike the one-sided inquiry conducted in Barber, Juror No. 1’s misconduct was
not discovered through such tactics. Indeed, when the court was informed Juror No. 1 was
struggling during deliberations, the trial court and counsel agreed the jury should continue
to deliberate until the foreperson informed them of a deadlocked jury. Unlike Barber,
Juror No. 1’s alleged misconduct was not discovered through the questioning of other
jurors or the questioning of Juror No. 1, but, as the trial court aptly put it, “a fluke
situation.” But once the trial court discovered Juror No. 1 had been untruthful during voir
dire, it was required to hold a hearing into the matter. (People v. Bradford (1997) 15
Cal.4th 1229, 1348 [“A hearing is required only where the court possesses information
which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to
perform his or her duties and would justify his or her removal from the case”].)
The trial court did not hold a hearing into Juror No 1’s potential misconduct until
the next court day. Before then, the prosecutor investigated and discovered Juror No. 1
was untruthful when stating on the questionnaire that she never made a police report

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outside of a neighborhood disturbance, not just because of the assertions contained in her
petition for a restraining order, but also because of police reports indicating she had called
the police to report she had been the victim of domestic violence. At the subsequent
hearing, the trial court confronted Juror No. 1 about all the discovered inconsistencies but
was mostly concerned with those related to the restraining order petition. In the court’s
mind, it was not credible that Juror No. 1 would not have thought about the criminal
conduct she alleged in her restraining order petition when asked whether she was the
victim of a crime. The allegations in the petition were serious and had occurred recently,
and the matter was pending in the same court where Juror No. 1 was serving as a juror.
Further, Juror No. 1 exhibited odd behavior during questioning, leading the court to
believe she was being illusive. Neither counsel was permitted to question Juror No. 1, and
no other juror was questioned on the topic. The questioning was limited to Juror No. 1’s
answers on her questionnaire and did not go into other grounds for disqualification. Given
the court’s limited inquiry of Juror No. 1 following its discovery of possible juror
misconduct related to that juror, defendant’s case is not like the one considered in Barber.
Additionally, the reasons provided by the court for discharging Juror No. 1 were
sufficient. Section 1089 authorizes a trial court to discharge a juror and substitute an
alternate if “good cause” is shown that the juror is “unable to perform his or her duty . . . .”
A juror may be excused for actual bias, which is “the existence of a state of mind on the
part of the juror in reference to the case, or to any of the parties, which will prevent the
juror from acting with entire impartiality, and without prejudice to the substantial rights of
any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); People v. Ledesma (2006) 39 Cal.4th
641, 670.) While we review a trial court’s determination to discharge a juror for an abuse
of discretion, “a juror’s inability to perform as a juror must be shown as a ‘demonstrable
reality’ [citation], which requires a ‘stronger evidentiary showing than mere substantial
evidence . . . .’ ” (People v. Wilson (2008) 44 Cal.4th 758, 821.)

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 Here, the trial court found Juror No. 1 was not credible in her demeanor or in her
answers to the court’s questions. We must defer to this credibility finding. (People v.
Lopez (1993) 13 Cal.App.4th 1840, 1844.) Juror No. 1’s untruthfulness pertained to her
status as a crime victim and that she had previously reported being the victim of a crime to
police. Nothing came of Juror No. 1’s reports, potentially leaving her with a distrust and
bias toward law enforcement or belief in vigilante justice. Given Juror No. 1’s lack of
candor and the trial court’s credibility finding, we conclude the record shows as a
demonstrable reality that good cause existed to disqualify Juror No. 1.
II
The Court Did Not Abuse Its Discretion By Denying
Defendant’s Motion For A New Trial
Defendant contends the trial court erred by denying his motion for a new trial
because the jury committed misconduct by relying on facts not in evidence, i.e., the juror
engineer’s math equations and conclusions that defendant must be the shooter given his
height and the methamphetamine-using juror’s statements that a person under the influence
of methamphetamine has a good memory. We disagree.
A motion for a new trial may be granted on the ground of juror misconduct.
(§ 1181, cases 2, 3, 4.) “ ‘ “The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears.” ’ ” (People v. Cox (1991)
53 Cal.3d 618, 694.) Once misconduct is shown, the misconduct “raises a presumption of
prejudice ‘[which] the prosecution must rebut . . . by demonstrating “there is no substantial
likelihood that any juror was improperly influenced to the defendant’s detriment.” ’ ” (In
re Boyette (2013) 56 Cal.4th 866, 892.) An appellate court reviews independently the
determination of prejudice arising from juror misconduct, but the trial court’s credibility
determinations and factual findings are reviewed under the more deferential substantial
evidence standard. (People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5.)

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 Defendant’s contentions of juror misconduct raise the question of where to draw the
line between permissible considerations of juror experiences and impermissible
consideration of juror expertise. Our Supreme Court has held that “[i]t is not improper for
a juror, regardless of his or her educational or employment background, to express an
opinion on a technical subject, so long as the opinion is based on the evidence at trial.” (In
re Malone (1996) 12 Cal.4th 935, 963.) A juror “should not discuss an opinion explicitly
based on specialized information obtained from outside sources,” as such an “injection of
external information in the form of a juror’s own claim to expertise or specialized
knowledge of a matter at issue is misconduct.” (Ibid.) Nevertheless, “if we allow jurors
with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use
their experience in evaluating and interpreting that evidence.” (People v. Steele (2002) 27
Cal.4th 1230, 1266.) “Moreover, during the give and take of deliberations, it is virtually
impossible to divorce completely one’s background from one’s analysis of the evidence.
We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions
that attorneys draw, never refer to their background during deliberations.” (Ibid.)
As our Supreme Court has stated, “[a] fine line exists between using one’s
background in analyzing the evidence, which is appropriate, even inevitable, and injecting
‘an opinion explicitly based on specialized information obtained from outside sources,’ ”
which would be “misconduct.” (People v. Steele, supra, 27 Cal.4th at p. 1266.) We find
the cases defendant cites as particularly helpful for delineating where that line should be
drawn and on what side this case falls.
In Stankewitz, the defendant was on trial for robbery based on an incident in which
he demanded to see two individuals’ wallets at gunpoint but returned the wallets without
removing anything. (In re Stankewitz (1985) 40 Cal.3d 391, 396.) The jury was instructed
on the elements of robbery, “including the requirement that the perpetrator have a specific
intent to permanently deprive the victim of his property.” (Id. at p. 399.) In a petition for
habeas corpus, the defendant alleged juror misconduct based on declarations from two

14
jurors stating a fellow juror had “advised the other jurors that he had been a police officer
for over 20 years; that as a police officer he knew the law; that the law provides a robbery
takes place as soon as a person forcibly takes personal property from another person,
whether or not he intends to keep it . . . .” (Id. at p. 396.) Our Supreme Court held the
juror had “committed overt misconduct” by “ ‘consult[ing]’ his own outside experience as
a police officer on a question of law. . . . Had he merely kept his erroneous advice to
himself, his conduct might be the type of subjective reasoning that is immaterial for
purposes of impeaching a verdict. But he did not keep his erroneous advice to himself;
rather, vouching for its correctness on the strength of his long service as a police
officer . . . .” (Id. at pp. 399-400.)
Conversely, in Lucas, the defendant claimed he killed his neighbors while he was
unconscious after injecting himself with large quantities of methamphetamine, cocaine,
and heroin. (In re Lucas (2004) 33 Cal.4th 682, 691.) A referee appointed to conduct an
evidentiary hearing and make findings concerning the defendant’s claim of juror
misconduct determined that a juror had concluded the defendant had lied about how much
drugs he had taken or the effect those drugs had on the defendant; the juror shared his
opinion with the other jurors; and the juror’s opinion was based on the juror’s personal
experience with controlled substances and not on evidence received at the trial. (Id. at
pp. 693, 694-695.) Our Supreme Court rejected the claim of juror misconduct. (Id. at
p. 697.) It noted that the juror did not hold himself out as an expert in a technical matter
on the basis of his education or occupation, but merely related his personal experience
about a matter that was of fairly common knowledge, as it related to the evidence and the
inferences the defendant wanted the jury to draw from the evidence. (Ibid.) The Court
also considered the fact that the juror disclosed that he was a former addict and alcoholic
during voir dire. (Ibid.) Our Supreme Court further held it was not substantially likely
that any juror was biased by the challenged juror’s comments, considering the general
awareness people had of the effects of controlled substances, the mild and brief nature of

15
the comments, the tentative spirit in which they were offered, and the lack of insistence
that the comments should convince the other jurors to reject the defense. (Ibid.)
Here, the methamphetamine-using juror shared a personal experience relevant to the
credibility of the witnesses at issue, much like the juror in Lucas. (In re Lucas, supra, 33
Cal.4th at p. 697.) Indeed, as Juror No. 1 provided in her declarations, several jurors
shared their experiences related to memory and drug use, as did several witnesses. No
juror relied on a purported expertise or education, and simply relayed personal
experiences.
On the other hand, the comments made by Juror No. 7 and the assertions contained
in the declarations show the opinion given by the juror engineer fell on the impermissible
side of the line. Like the juror in Stankewitz, the juror engineer relied on his expertise as
an engineer to put forth the opinion that the bullet trajectory supported a conclusion that a
tall person shot the victim. (In re Stankewitz, supra, 40 Cal.3d at pp. 399-400.) The juror
engineer relied on math equations to prove to the rest of the jury his theory was correct.
The problem with the juror engineer’s opinion is that no evidence was introduced at trial
pertaining to the bullet’s trajectory. The prosecution did not seek conviction on this
theory, nor did defendant pursue acquittal on a theory involving bullet trajectory. The
juror engineer was not interpreting evidence when sharing his opinion with the rest of the
jury, instead he was creating additional evidence for the jury to consider. This was
improper.
Even so, there was no substantial likelihood that any juror was improperly
influenced to defendant’s detriment. Juror No. 1 declared the jurors were all lost in the
engineer juror’s math. Moreover, Juror No. 1 also declared jurors changed their votes to
guilty, not because of the juror engineer’s purported expertise and opinion, but because
they felt pressured by other jurors to do so.2 Thus, there is no causal connection between

2 Defendant does not raise this as a ground for reversal.

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the juror engineer’s statements and any juror’s vote. Accordingly, the trial court did not
err by denying defendant’s motion for a new trial.
III
The Trial Judge Did Not Violate Defendant’s Due Process Right
Defendant contends the trial judge violated his right to due process under the
Fourteenth Amendment to the United States Constitution because she favored the
prosecutor, with whom she participated in a civics education program. We disagree,
noting our decision addresses only the federal due process question raised by defendant.3
“According to the high court, the protection afforded a litigant under the due
process clause in the realm of judicial disqualification extends beyond the narrow common
law concern of a direct, personal, and substantial pecuniary interest in a case to ‘a more
general concept of interests that tempt adjudicators to disregard neutrality.’ (Caperton [v.
A. T. Massey Coal Co. (2009) 556 U.S. 868, 878 (Caperton)].) Where such interests are
present, a showing of actual bias is not required. ‘The Court asks not whether the judge is
actually, subjectively biased, but whether the average judge in his position is “likely” to be
neutral, or whether there is an unconstitutional “potential for bias.” ’ (Id. at p. [881].)
Moreover, the court has said that ‘ “what degree or kind of interest is sufficient to
disqualify a judge from sitting ‘cannot be defined with precision.’ ” ’ (Id. at p. [879].)

3 Whether the judge violated an ethical standard or was disqualified under Code of
Civil Procedure section 170.1 is a complex question subject to a different standard than
that presented in this appeal. (Code of Civ. Proc., § 170.1, subd. (a); Cal. Code Jud.
Ethics, canons 2B(1), 3B(7) [pertaining to a judge’s duty to make reasonable efforts to
avoid ex parte communications], 4B(3) [pertaining to a judge’s service on a board of civic
or other organization; Advisory Com. com., foll. canons 4A & 4B “[c]omplete separation
of a judge from extrajudicial activities is neither possible nor wise; a judge should not
become isolated from the community in which he or she [or they] lives”]; Cal. Supreme
Court Com. on Jud. Ethics Opn. (2013) Disqualification Based on Judicial Campaign
Contributions from a “Lawyer in the Proceeding,” formal opn. No. 2013-003, p. 4.) We
render no opinion in this regard.

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Nonetheless, the court has also made it abundantly clear that the due process clause should
not be routinely invoked as a ground for judicial disqualification. Rather, it is the
exceptional case presenting extreme facts where a due process violation will be found.
(556 U. S. at [pp. 887-888].) Less extreme cases -- including those that involve the mere
appearance, but not the probability, of bias -- should be resolved under more expansive
disqualification statutes and codes of judicial conduct. (Ibid.)” (People v. Freeman (2010)
47 Cal.4th 993, 1005 (Freeman).)
The extreme circumstances at issue in Caperton illustrate the heightened due
process standard. There, the Supreme Court of Appeals of West Virginia reversed a trial
court judgment entered following a jury verdict of $50 million. Five justices heard the
case, and the vote to reverse was three to two. One of the justices in the majority denied a
recusal motion. The basis for the motion was that the justice had received campaign
contributions in an extraordinary amount ($3 million) from, and through the efforts of, the
board chairman and principal officer of the corporation found liable for the damages.
(Caperton, supra, 556 U.S. at pp. 872-873 [173 L.Ed.2d at pp. 1214-1215].)
The Supreme Court explained that the case before it was “ ‘exceptional’ ” and
concluded that “ ‘there is a serious risk of actual bias -- based on objective and reasonable
perceptions -- when a person with a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case by raising funds or directing the
judge’s election campaign when the case was pending or imminent.’ (Caperton, supra,
556 U.S. at [p. 884].)” (Freeman, supra, 47 Cal.4th at p. 1004.) The Supreme Court
focused on the relative size of the contribution -- it was larger than the amount spent by all
other contributors and 300 percent greater than that spent by the campaign committee --
and the “ ‘temporal relationship between the campaign contributions, the justice’s election,
and the pendency of the case . . . . It was reasonably foreseeable, when the campaign
contributions were made, that the pending case would be before the newly elected justice.’
(Id. at pp. [885-886].)” (Freeman, at p. 1004)

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 Our Supreme Court has applied Caperton in a handful of cases, three of which offer
helpful guidance in the present case. First, in Freeman, the defendant was tried before a
judge who had previously disqualified himself based on an appearance of bias -- his
friendship with a judge whom the defendant was rumored to have been stalking -- but who
later was reassigned to the defendant’s case after the stalking rumors proved unfounded.
On appeal, the defendant argued that her trial before the previously disqualified judge
violated her due process right to an impartial judge. Our Supreme Court rejected the
claim, explaining that Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii)
provides “an explicit ground for judicial disqualification” based on “a public perception of
partiality, that is, the appearance of bias.” (Freeman, supra, 47 Cal.4th at pp. 996-999,
1001.) And, our Supreme Court noted, Caperton clarified that the due process clause
operates more narrowly: “[W]hile a showing of actual bias is not required for judicial
disqualification under the due process clause, neither is the mere appearance of bias
sufficient. Instead, based on an objective assessment of the circumstances in the particular
case, there must exist ‘ “the probability of actual bias on the part of the judge or
decisionmaker [that] is too high to be constitutionally tolerable.” ’ ([Caperton, supra,] 556
U.S. at p. [877].)” (Freeman, at p. 996.)
Turning to the facts of Freeman, our Supreme Court concluded that the defendant’s
case did not implicate any of the concerns -- such as “pecuniary interest, enmeshment in
contempt proceedings, or the amount and timing of campaign contributions” -- found in
the United States Supreme Court’s decisions holding that due process required judicial
disqualification. (Freeman, supra, 47 Cal.4th at p. 1006.) Further, the circumstances were
not so extreme as to warrant a finding of a probability of actual bias. “At most, [the
judge’s] decision to accept reassignment of defendant’s case may have violated the judicial
disqualification statutes that limit the actions that may be taken by a disqualified judge.
[Citations.] But, without more, this does not constitute the kind of showing that would
justify a finding that defendant’s due process rights were violated.” (Freeman, at p. 1006.)

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 Later that year, our Supreme Court decided People v. Cowan (2010) 50 Cal.4th 401,
and elaborated on the showing required to establish judicial bias of constitutional
dimension. “As the high court explained in Caperton, a constitutionally intolerable
probability of actual bias exists only when the circumstances ‘ “would offer a possible
temptation to the average man as a judge to forget the burden of proof required to convict
the defendant, or which might lead him not to hold the balance nice, clear and true between
the State and the accused.” ’ [Citation.] This inquiry is an objective one, based on
whether ‘ “under a realistic appraisal of psychological tendencies and human weakness,”
the interest “poses such a risk of actual bias and prejudgment that the practice must be
forbidden . . . .” ’ ” (Cowen, at p. 457.)
Most recently, in Nieves, our high court considered whether multiple instances of
judicial misconduct established judicial bias sufficient to violate the due process clause.
There, the court determined that the trial judge engaged in judicial misconduct by making
“inappropriately disparaging and sarcastic remarks to defense counsel, impugning his
performance, chastising him for improper behavior, and sanctioning and citing him for
contempt in front of the jury. [¶] The trial judge also directed improper comments and
questions to witnesses, openly doubting the credibility of one defense expert by asking
argumentative and hostile questions and remarking on the possibility that another defense
expert ‘just doesn’t know what he’s talking about.’ When confronted with a juror who had
been exposed to extrajudicial information that was likely to enhance the credibility of a
prosecution expert, the trial court revealed the information to the entire jury. In the penalty
phase, the trial judge needlessly reprimanded and belittled a lay witness who testified for
the defense.” (People v. Nieves (2021) 11 Cal.5th 404, 477.)
Notwithstanding the trial judge’s misconduct, our Supreme Court rejected the
defendant’s argument that the misconduct violated his due process rights. Our Supreme
Court summarized its prior cases in this area, noting that the “ ‘controlling principle’ of
unconstitutional bias rests on a ‘general concept of interests’ that may prevent adjudicators

20
from remaining ‘ “disinterested in the conviction or acquittal of those accused.” ’
[Citations.] Though traditionally focused on pecuniary influences (Freeman, [supra, 47
Cal.4th] at pp. 1001-1002), the high court has explained that there may be a disqualifying
interest in the outcome of criminal proceedings that ‘rests on the relationship between the
judge and the defendant.’ (Caperton, [supra, 556 U.S.] at p. 881.) A judge would be
unlikely to remain neutral, for example, when presiding over criminal contempt
proceedings involving a defendant with whom the judge had a ‘ “running, bitter
controversy.” ’ (Ibid.) Appellate opinions we cited in Freeman provide additional
examples of bias that reflect a judge’s relationship to the parties before it (Freeman, at
p. 1006, fn. 4): in those cases, trial judges made inappropriate comments about women, in
cases decided against women [citations], about lawyers, when the defendant was an
attorney [citation], and about noncitizens, when one party was a foreign national
[citation].” (People v. Nieves, supra, 11 Cal.5th at p. 499.)
Applying the principles just summarized, we consider whether the trial judge’s
relationship with the prosecutor, which was based on a single instance of co-participation
in a civics education program consisting of four classroom visits and a two-hour moot
court session, reflects a constitutionally intolerable possibility that the judge harbored an
interest in the outcome of defendant’s trial. We conclude that it does not. The judge did
not have a personal relationship with the prosecutor outside of court or the legal-related
civics education program. Indeed, the judge did not socialize with the prosecutor on a
different level than she socialized with other attorneys in the legal community, which was
generally confined to bar events and other legal-based organizations. The fact that some of
the judge’s and prosecutor’s interactions occurred during defendant’s trial does not change
this result. There was limited contact outside the courtroom and no evidence any of it was
related to defendant’s case; all evidence was to the contrary. Isolated opportunities to
communicate about unrelated events, even if occurring during defendant’s trial, do not in
and of themselves demonstrate a constitutionally problematic interest. Defendant’s claim

21
of judicial bias of constitutional magnitude is without merit; he cannot point to an interest
held by the trial judge that caused her to disregard judicial neutrality. (People v.
Armstrong (2019) 6 Cal.5th 735, 798 [“a judge’s ‘rulings against a party -- even when
erroneous -- do not establish a charge of judicial bias, especially when they are subject to
review’ ”].)
DISPOSITION
The judgment is affirmed.

/s/
Robie, J.

We concur:

/s/
Blease, Acting P. J.

/s/
Duarte, J.

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