Filed 11/23/22 P. v. Allen CA4/1
Received for posting on 11/29/22
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079633
Plaintiff and Respondent,
v. (Super. Ct. No. INF1901962)
ANDREW PHILLIP ALLEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Jorge C. Hernandez, Judge. Affirmed.
Law Office of Zulu Ali & Associates and Whitney Ali for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steven T.
Oetting and Daniel John Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
Defendant Andrew Phillip Allen appeals from a judgment of conviction
entered after a jury convicted him on all charges arising out of a domestic
violence incident in which he punched, kicked, and choked his wife and
threatened her with a firearm.
On appeal, Allen asserts three claims of error. He first contends that
the trial court abused its discretion in denying his motion for judgment of
acquittal. According to Allen, the prosecution failed to offer sufficient
evidence that Allen’s wife became unconscious during the incident or that he
used a firearm to threaten her life. Allen contends that the lack of sufficient
evidence supporting these two findings required his acquittal on
enhancement allegations based on these findings.
Second, Allen contends that juror misconduct occurred, requiring
reversal of his convictions. As support for this contention, Allen relies on a
posttrial email that his wife sent to defense counsel in which she claimed that
during the trial, she encountered a juror in the bathroom and the juror spoke
to her, saying that the juror was not supposed to be talking to the victim.
Finally, Allen contends that the trial court erred in denying his motion
for new trial, asserting in a somewhat ambiguous argument that his wife’s
trial testimony was unreliable and insufficient to support his convictions,
and/or that his wife’s posttrial statements recanting some of her trial
testimony constituted new evidence warranting the granting of a new trial.
We conclude that none of Allen’s contentions has merit. We therefore
affirm the judgment.
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II.
FACTUAL AND PROCEDURAL BACKGROUND
Allen and Jane Doe married in 2012. Doe began dating Allen when she
was 13 years old. Doe and Allen have two children together; their daughter
was 10 years old at the time of trial, and their son was 6. Doe was pregnant
with the couple’s third child at the time of the incident and at the time of
trial.
Allen, who is six feet two inches tall and weighed about 215 pounds at
the time of the incident, had a history of physically abusing Doe, who is five
feet seven inches tall and weighed approximately 118 pounds at the time of
the incident. In 2012, Allen attacked Doe by punching her and ripping her
shirt. In 2013, Allen kicked Doe during an altercation. In 2015, Allen used a
firearm to threaten Doe’s life. At some point, Doe and the two children
moved to Texas where they stayed in a shelter for victims of domestic
violence. After Allen indicated to Doe that he “was willing to change and get
it together” and that he would “keep his hands to himself,” she agreed to
move back to California to live with him. After moving back to California,
Doe became pregnant with the couple’s third child. Allen indicated that he
was excited about the pregnancy.
At around 1:00 a.m. on August 20, 2019, Allen awakened Doe. He had
been talking with the couple’s daughter about events that had occurred while
she, her brother and Doe were living in Texas, and Allen had become upset.
Allen wanted to discuss with Doe an incident during which someone had
apparently “grabbed [their] son by his shirt.” Doe was not aware that such
an incident had occurred. Allen was upset and continued to ask Doe
questions while progressively becoming more agitated because he “didn’t like
how [Doe] was responding to the questions.” At some point, Allen slapped
Doe two or three times in the face in the presence of their daughter. Doe and
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Allen continued to verbally argue for “a couple of hours.” Allen repeatedly
blamed Doe for the incident because she had decided to move to Texas. The
argument eventually ended and everyone went to bed.
At around 6:00 a.m., Allen got up and ripped the blanket off of Doe.
Allen then went into another room and started asking his daughter for more
details about their time in Texas. After his daughter told him that Doe “had
a guy friend” in Texas, Allen went to where Doe was sitting and kicked her in
the head.
After kicking Doe, Allen began punching her with a closed fist. He
punched her on the side of her body four times and on her head twice. Allen
then kicked Doe’s head three or four times, and Doe lost consciousness.
When Doe regained consciousness, she reminded Allen that she was
pregnant. Allen told her that she had “ruined [their] kids, basically.” Allen
then walked into the kitchen, which included a laundry area, and grabbed a
bottle of bleach. He ran to Doe and was “about to get ready to pour the
bleach on [Doe.]” He was “trying to drag [Doe] from [their] bedroom [by her
shirt] into the bathroom to pour bleach on her.” During the struggle, Allen
ripped Doe’s shirt off of her. Although Doe had difficulty remembering the
exact chronology of events, she believed that it was around this time that
Allen pressed his forearm against her throat while she was on a mattress in
the bedroom. Although she stated that Allen also used his hands to choke
her, she believed that she lost consciousness when he pressed his forearm
against her throat.
While the abuse was occurring, the couples’ children were “standing
still” in the kitchen and appeared to be “in complete shock.”
After Allen ripped Doe’s shirt off, he went back to the kitchen and
started to talk to the couple’s daughter again, asking her questions such as
4
“who [Doe] was with in Texas, who did [Doe] communicate with in Texas.”
Doe told their daughter that it was “okay” to “[t]ell him the truth.”
After Doe made this statement, Allen again became upset and started
to physically attack Doe. When Doe, who was seated in a chair, tried to get
up, Allen punched her in the head and knocked her down. Doe lay on the
floor and curled her body into a ball. While Allen was hitting her, she lost
consciousness. When she regained consciousness, Doe tried to escape out the
front door, which was approximately five to six feet away from her position on
the floor, but the door was locked. At this point, Allen was holding a gun and
warned Doe that if she left the residence, he would kill her.1 Doe tried to
crawl through Allen’s legs so that he “didn’t have . . . a clear shot to shoot,”
but he pointed the gun down at her.2 Allen was “furious” and said that Doe
“deserved to die.” Allen shoved Doe down and placed the gun on a counter.
Shortly thereafter, Doe heard a female police officer knock on the door and
announce her presence. Everyone “kind of froze,” and then Allen “headed to
the back” of the house and Doe went to “put a shirt on” before answering the
door.
Doe went outside to speak with the officer who had knocked on the
door. Doe had difficulty speaking because her “lips [were] really swollen
and . . . [were], like, stuck to [her] braces.” A different officer entered the
home.
Doe initially was not honest with the police about what had happened.
Doe testified that her first instinct was to try to protect Allen, and she stated
1 Doe indicated that she did not know where Allen had “grabbed this gun
from.”
2 Doe was shown a photograph of a gun at trial and indicated that the
firearm in the photograph was the firearm that Allen had pointed at her.
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that she had a history of “go[ing] into, like, protect mode with him.” In 2015,
she was arrested and held in contempt because she did not want to testify
against Allen. However, after paramedics arrived and began treating Doe,
her conversation with them proved to be “a wake-up call” that convinced her
to go to the hospital and to stop protecting Allen.
Doe suffered bruising to her lips and forehead. She had a black eye and
her eye was swollen. Her other eye had a cut underneath it. Doe’s arms,
ribs, and neck were bruised, and she had scratches on her wrist.
During a sweep of the house, an officer located a loaded firearm that
had a round of ammunition in the chamber.
After Allen was arrested, a deputy served him with a protective order.
Allen’s response to being served with the protective order was to kick a trash
can, scream at the deputy and call her names, and threaten “to fight
with[her] if [she] tried to do anything.” Allen told the deputy that he was
“done playing nice with [the deputy].” Allen called Doe 361 times while he
was in custody.
In a first amended information filed February 13, 2020, the People
charged Allen with one count of inflicting corporal injury on a spouse (Pen.
Code,3 § 273.5, subd. (f)(1); count 1), one count of assault with a firearm
(§ 245, subd. (a)(2); count 2), one count of making a criminal threat (§ 422;
count 3), two counts of child endangerment (§ 273a, subd. (a); counts 4 and 5),
one count of unlawfully possessing a firearm (§ 29800, subd. (a)(1); count 6),
one count of unlawfully possessing ammunition (§ 30305, subd. (a); count 7),
and two counts of violating a protective order (§ 166, subd. (c)(1); counts 8
and 9).
3 Further statutory references are to the Penal Code unless otherwise
indicated.
6
With respect to count 1, the information alleged that Allen personally
inflicted great bodily injury on Doe (§§ 12022.7, subd. (e), 1192.7, subd. (c)(8)).
The information further alleged that Allen personally used a firearm
(§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) with respect to count 3, and that
Allen was armed with a deadly weapon (a handgun) (§ 667, subd.
(e)(2)(C)(iii)) with respect to count 6. Finally, the information alleged that
Allen had suffered two prior serious offenses (§ 667, subd. (a), and two strike
prior offenses (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)).
The matter proceeded to trial before a jury. Doe testified about her
history with Allen, which included previous domestic violence incidents, and
she described the events of August 20, 2019 that led to the charges in this
case. Responding officers testified about what they found when they
responded to the scene, and investigating officers testified regarding what
they learned during their investigation. A forensic nurse examiner also
testified at trial. She stated that strangulation is one of the most lethal
forms of domestic violence. Signs and symptoms of strangulation include
neck pain, blurred vision, trouble speaking, neck swelling, and loss of
consciousness. Doe indicated to the nurse during her examination at the
hospital that during and after the assault, she had suffered vision changes,
lost consciousness, had difficulty breathing, felt pain while breathing, was
nauseous and vomited, was dizzy, had a headache, felt faint, and suffered
neck pain.
One police investigator testified as a domestic violence expert. He
explained that abusers commonly use intimidation to gain control over their
victims. They may also use “name-calling, demeaning, belittling the victim,
making statement such as ‘you’re lucky to have me.’ ”
7
At court one day, after the jurors had left, Allen told Doe that he was
“not remorseful for what [he] did to [her],” and sarcastically said, “ ‘Good luck
raising your kids.’ ” He called her “a punk-ass bitch” and “a whore.”
Allen testified on his own behalf. He admitted that he had been
arrested for a domestic violence incident in 2011, that he had punched Doe in
2012 and 2013, and that he had another physical altercation with her in
2015. Allen admitted that at around 1:00 a.m. on the day of the incident, he
slapped, kicked and hit Doe when she failed to answer his questions in a way
that pleased him. Allen also admitted that later in the morning, he and Doe
began fighting again, and he conceded that he had pressed his forearm
against Doe’s neck. Allen acknowledged that he had lied to police, and that
he had violated a protective order by traveling to Texas to try to find Doe.
Allen further admitted that he had called Doe “a lot of times” while he was in
custody, and claimed that the purpose of his calls was to “check[] on them,”
and “talk[] to my children, making sure that they was good. Just normal
stuff.”
Allen further testified that he was “ ‘not remorseful for what [he] did’ ”
to Doe. He contended, however, that he had not threatened Doe with a gun,
and that he never saw her lose consciousness.
The jury convicted Allen on all counts. The jury also found true the
great bodily injury enhancement alleged as to count 1, as well as the firearm
and deadly weapon enhancements alleged as to counts 3 and 6. The trial
court found true the allegation that Allen had suffered two strike prior
convictions.
Following the jury verdicts, the trial court denied Allen’s motion for
new trial. The court sentenced Allen to a term of 35 years to life in prison,
plus an additional determinate term of 12 years.
Allen filed a timely notice of appeal.
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III.
DISCUSSION
A. The trial court did not err in denying Allen’s motion for judgment of
acquittal
Allen asserts that the trial court erred in denying his motion for
judgment of acquittal. According to Allen, there was insufficient evidence
from which one could find that Doe lost consciousness or that he used a
firearm to threaten Doe. These findings are related to the enhancements
alleged in connection with counts 1, 3, and 6.
1. Additional background
Defense counsel did not move under section 1118.1 for judgment of
acquittal immediately after the prosecution’s case-in-chief. Rather, at the
conclusion of the defense case, the court and the parties went “off the record.”
After the court stated, “Let’s go back on the record . . . ,” it is clear from the
record that the attorneys and the court were continuing a discussion that
they had started during the recess. At some point, defense counsel said, “And
that reminds me, also, that I didn’t make this motion after [the prosecutor]
had rested, the general 11—motion.” When the court reporter asked for
clarification as to the motion that defense counsel was referencing, the court
interjected, “1118.” Defense counsel continued, “—and I would just submit.”
Defense counsel then began to say more about the other issue that the
attorneys and the court had been discussing, which involved how to instruct
the jury with respect to the personal use of a firearm allegation.
The trial court made an additional comment with respect to the
personal use of a firearm issue, and then said, “In terms of your 1118 motion,
the standard is substantial evidence. And I think when I look at what
Ms. (Jane Doe) testified to, there’s substantial evidence to support the
charges. Even in the face of your client’s testimony, to certain points, being
9
contrary to how she testified. But that’s not the standard. The standard is[,]
is there substantial evidence. [¶] So I think as to Counts 1, 2, 3, 4, 5, 6, 7, 8,
and 9, I believe that there is substantial evidence to [support] th[e counts].
As to the GBI allegation under Count1, I believe there is enough substantial
evidence to go to the jury. As it relates to the 422, being armed, I believe
there’s substantial evidence to support that. [¶] As to Count 6, which is the
29800(a)(1) with the allegation that he was armed with a deadly weapon,
that one, I can’t make a determination because I don’t necessarily understand
the allegation. And, hopefully, there will be something that will help me
clarify.”
2. Legal standards
Section 1118.1 authorizes a trial court, on its own motion or on the
motion of the defendant, to enter a judgment of acquittal with respect to one
or more of the charges being tried if the evidence is insufficient to support a
conviction.4
“ ‘The standard applied by a trial court in ruling upon a motion for
judgment of acquittal pursuant to section 1118.1 is the same as the standard
applied by an appellate court in reviewing the sufficiency of the evidence to
support a conviction, that is, “whether from the evidence, including all
reasonable inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense charged.” ’ [Citation.]
‘The purpose of a motion under section 1118.1 is to weed out as soon as
4 Section 1118.1 provides in relevant part: “In a case tried before a jury,
the court on motion of the defendant or on its own motion, at the close of the
evidence on either side and before the case is submitted to the jury for
decision, shall order the entry of a judgment of acquittal of one or more of the
offenses charged in the accusatory pleading if the evidence then before the
court is insufficient to sustain a conviction of such offense or offenses on
appeal.”
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possible those few instances in which the prosecution fails to make even a
prima facie case.’ [Citation.] The question ‘is simply whether the prosecution
has presented sufficient evidence to present the matter to the jury for its
determination.’ [Citation.] The sufficiency of the evidence is tested at the
point the motion is made. [Citations.] The question is one of law, subject to
independent review. [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182,
200.)
Under the sufficiency of the evidence standard, courts must examine
the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence [from which] a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. (People v.
Flores (2020) 9 Cal.5th 371, 411.) A reviewing court should presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. (Ibid.) “ ‘Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it
is the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends.’ [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585 (Elliott).)
“Unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to
support a conviction.” (Ibid.)
3. Application
Although Allen appeared to seek acquittal as to all of the charged
counts in his motion under section 1118.1 in the trial court, on appeal Allen
narrows his argument to two specific challenges to the sufficiency of the
evidence. First, Allen asserts that the prosecution failed to present sufficient
evidence that Doe lost consciousness during the physical assault and thus,
failed to prove that Allen inflicted great bodily injury as alleged in the
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enhancement charged in connection with count 1. Second, he argues that
there is insufficient evidence that he used a firearm as required to establish
the firearm enhancement alleged in connection with count 3.
a. Substantial evidence supports a finding that Allen rendered
Doe unconscious
A review of the record demonstrates the sufficiency of the evidence to
support a factual finding that Allen rendered Doe unconscious during the
attack, and in so doing, inflicted great bodily injury on Doe. Specifically, Doe
testified that she became unconscious at least three times during the attack.
Doe testified that on the morning of August 20, 2019, she lost consciousness
when Allen kicked her in the head three or four times. Doe also testified that
later that morning, while she was on the bed, Allen used his forearm and
hands to choke Doe until she lost consciousness. Doe also testified that she
lost consciousness when Allen hit her while she was curled up on the floor in
a corner in the living room. Doe’s testimony that she lost consciousness
multiple times during the attack is clearly sufficient to support the jury’s
finding.5
In an attempt to challenge Doe’s credibility, Allen asserts that Doe’s
testimony was “inconsistent and unreliable.” However, it is not our role to
second-guess the weight that the jury accorded to Doe’s testimony. It was the
jury’s role to consider and assess the consistency of Doe’s testimony, as well
as her overall credibility. The jury was entitled to believe that portion of
Doe’s testimony in which she very clearly stated that she lost consciousness
at least three times, even if it disbelieved other portions of her testimony.
5 Nothing that Doe described about the events underlying the charges
was physically impossible or inherently improbable. (See Elliott, supra,
53 Cal.4th at p. 585.)
12
Allen also challenges Doe’s credibility by contending that Doe
“admitted to lying about [Allen] to the police at the time of the incident
because she was mad.” In support of this argument, Allen cites to a
document attached as an exhibit to his motion for a new trial—filed after the
jury rendered verdicts of guilt—for this proposition. Allen identifies the
document as an email sent by Doe to Allen’s defense attorney more than a
week after the jury convicted Allen, in which Doe purports to disclaim her
prior assertions concerning Allen’s actions, including her testimony at trial,
that Allen rendered her unconscious during the incident on August 20, 2019.
Statements made in an email by a witness after trial are irrelevant for
purposes of assessing the sufficiency of the evidence to support the jury’s
factual findings based on evidence presented at trial.6 We therefore reject
Allen’s contention that substantial evidence does not support the jury’s
finding that he inflicted great bodily injury on Doe by rendering her
unconscious during the attack.
b. Substantial evidence supports a finding that Allen used a
firearm during the domestic violence incident
Allen contends that the prosecution failed to present sufficient evidence
to support a finding that he used a firearm during the commission of
count 3.7 At trial, Doe testified that Allen threatened her with a firearm.
6 Further, “[i]t has long been recognized that ‘the offer of a witness, after
trial, to retract his [or her] sworn testimony is to be viewed with suspicion.’ ”
(In re Roberts (2003) 29 Cal.4th 726, 742; see also People v. McGaughran
(1961) 197 Cal.App.2d 6, 17 [“It has been repeatedly held that where a
witness who has testified at a trial makes an affidavit that such testimony is
false, little credence ordinarily can be placed in the affidavit.”].)
7 Although Allen specifies in his briefing that he is challenging the
sufficiency of the evidence only with respect to the personal firearm use
enhancement found true in connection with count 3, his argument regarding
13
She said that Allen held the firearm in his hand, pointed it at her, and told
her that he was going to kill her. There is nothing inherently improbable
about Doe’s trial testimony, nor does her testimony describe something that
is physically impossible. As a result, Doe’s testimony, on its own, constitutes
substantial evidence to support a finding that Allen personally used a firearm
in committing the offenses for which firearm use or arming was specifically
alleged. (See Elliott, supra, 53 Cal.4th at p. 585.) Further, responding
officers located a loaded firearm in the home.
Allen again relies on Doe’s posttrial email sent to his counsel to suggest
that there was insufficient evidence to support a finding that Allen used a
firearm, as alleged in connection with count 3. As stated with respect to the
previous argument, an email sent by a witness to defense counsel after trial
in which the witness makes statements that diverge from that witness’s
testimony is irrelevant for purposes of our assessment of the sufficiency of the
evidence presented by the prosecution, at trial, to support a finding that
Allen personally used a firearm in committing count 3, as alleged in the
personal use enhancement attached to that count. We therefore reject Allen’s
suggestion that Doe’s posttrial email undermines the sufficiency of the
evidence presented at trial with respect to his personal use of a firearm.
Allen also suggests that the testimony of one of the responding officers
calls into question Doe’s testimony. According to Allen, the officer “testified
that upon approaching the apartment . . . he never heard any statement or
yelling regarding a ‘gun.’ ” However, even if such testimony could be
construed as calling into question the veracity of Doe’s testimony that Allen
the evidence of his use of a firearm would appear to possibly apply to the
armed with a deadly weapon enhancement found true in connection with
count 6, as well, because the deadly weapon in the enhancement to count 6
was alleged to be a firearm.
14
threatened her with a firearm—and we are not persuaded that it can so be
construed—it is the role of the jury to weigh the evidence and decide, based
on that evidence, what occurred. The jury clearly believed Doe’s version of
events, and her testimony constitutes substantial evidence to support the
jury’s determination that Allen personally used and was armed with a
firearm. We therefore reject Allen’s challenge to the sufficiency of the
evidence to support the jury’s true findings on the firearm use enhancement.
B. Allen has not demonstrated that juror misconduct occurred
Allen contends that “communications between Jane Doe and [a] juror,
during the trial, constituted jury misconduct.” (Capitalization, boldface and
underscoring omitted.) The entirety of Allen’s argument as to how this case
presents an issue of jury misconduct is as follows:
“In this case, Jane Doe provided a declaration under
penalty of perjury and wrote an email, addressed to the
judge, that one of the jurors came up to her and started
talking to her. [Citation.] During their conversation, the
juror told Jane Doe, ‘I’m not supposed to be talking to you.’
[Citation.] Further inquiry was required to determine the
extent of that conversation and the effects that it had on
jury deliberations.”
1. Additional background
The jury found Allen guilty on all counts on March 3, 2020. On
June 17, 2020, defense counsel filed a motion for new trial. In the motion,
defense counsel indicated to the court that Doe emailed him on May 12, 2020.
In her email, Doe stated that she had “testified untruthfully as to losing
consciousness and Mr. Allen assaulting her with a gun.” Counsel further
recounted that Doe stated that “a juror spoke to her in the restroom,” and
although “she does not say if the conversation was inappropriate, [she] does
feel it was wrong.”
15
Defense counsel attached a copy of the email as an exhibit to the new
trial motion. In the email, Doe states “during the trial at the [courthouse]
while using the restroom one of the jurors approached me in the restroom.
She was an older [C]aucasian wom[a]n. She was talking to me while walking
into the stall, [and] she started the conversation with ‘I’m not supposed to be
talking to you’ so I thought it was odd that she was anyway. I didn’t say
anything about that at the time because I know that her talking to me was
wrong.” The email includes no other information about what, if anything, the
juror may have said to Doe, or what Doe may have said to the juror.
At a hearing on Allen’s new trial motion in which he raised the issue of
Doe’s posttrial email,8 the trial court addressed the email, specifically finding
that “[Doe’s] statement is not credible.” The court viewed Doe’s email “as
another instance of her making some attempt to help [Allen] out.” The court
also discussed Doe’s statement about the juror, explaining,
“[T]hat there was a conversation by a juror with her in the
bathroom just saying ‘Hi. I’m not supposed to talk to you’
without more is not enough because there has to be some
discussion in violation of a court order. And there was no
documentation of a discussion that was had between the
prospective juror and (Jane Doe) regarding any substance
of the trial. They were just in the bathroom at the same
time. [¶] So I find that neither one of those two things
[i.e., Doe’s claims that she had lied about what happened
and her claim about talking to a juror in the bathroom] are
in fact — or give rise to the level of granting a new trial in
this case.”
8 Allen, acting in pro per during some portion of the post-trial
proceedings, filed multiple new trial motions.
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2. Analysis
“ ‘A defendant accused of a crime has a constitutional right to a trial by
unbiased, impartial jurors.’ [Citation.] ‘Juror misconduct, such as the receipt
of information about a party or the case that was not part of the evidence
received at trial, leads to a presumption that the defendant was prejudiced
thereby and may establish juror bias.’ [Citation.] Even a juror's ‘inadvertent
receipt of information that had not been presented in court falls within the
general category of “juror misconduct.” ’ ” (People v. Miles (2020) 9 Cal.5th
513, 601.)
Although Allen asserts that the purported communication between a
juror and Doe in the bathroom constitutes “juror misconduct,” there is no
indication in Doe’s description of the interaction that the juror in question
actually engaged in juror misconduct.9 “ ‘It is misconduct for a juror during
the course of trial to discuss the case with a nonjuror.’ ” (People v. Lewis
(2009) 46 Cal.4th 1255, 1309, italics added.) “ ‘In a criminal case, any private
communication, contact, or tampering, directly or indirectly, with a juror
during a trial about the matter pending before the jury is, for obvious reasons,
deemed presumptively prejudicial. . . . The presumption is not conclusive,
but the burden rests heavily upon the Government to establish . . . that such
contact with the juror was harmless to the defendant. [Citations.]’
[Citation.]” (Ibid.) Even if one were to take Doe’s statement in her email at
face value, the mere comment “ ‘I’m not supposed to be talking to you’ ” is not
a comment about the case and does not itself constitute misconduct. Doe
provided no other information suggesting that anything more was said. The
9 The fact that Allen also contends that further inquiry should have been
made—a contention we next consider—is an indication that Allen recognizes
that the evidence presented to the court was insufficient, on its own, to
demonstrate that juror misconduct occurred.
17
allegation of contact between a witness and a juror, in the absence of any
suggestion of communication between them about the case, is insufficient to
demonstrate misconduct.
Allen also contends that the trial court should have inquired “[f]urther”
regarding the “extent of [the] conversation” between Doe and the juror in the
bathroom. Allen does not specify in his briefing what further inquiry he
contends the court should have conducted. Although Allen does not indicate
what line or lines of inquiry he contends the trial court should have pursued,
there are at least two ways in which concerns about possible juror misconduct
can be addressed. First, Code of Civil Procedure section 206 authorizes a
defendant to petition for access to personal juror identifying information
when that sealed information is “necessary for the defendant to communicate
with jurors for the purpose of developing a motion for new trial or any other
lawful purpose.” (Code Civ. Proc., § 206, subd. (g); see People v. McNally
(2015) 236 Cal.App.4th 1419, 1430.) Second, a court facing contentions of
juror misconduct may conduct an evidentiary hearing to further explore the
issue: “[W]hen a criminal defendant moves for a new trial based on
allegations of jury misconduct, the trial court has discretion to conduct an
evidentiary hearing to determine the truth of the allegations.” (People v.
Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock).)
To the extent that Allen is suggesting on appeal that the trial court
should have permitted him access to personal juror identifying information,
Allen fails to acknowledge that he made no effort to petition the court for
such information. If Allen believed that juror misconduct had occurred and
wanted to question the jurors, it was incumbent on him to petition the court
for personal jury identifying information pursuant to Code of Civil Procedure
section 206. A petition filed pursuant to this provision must be supported by
a declaration that includes facts sufficient to establish good cause for the
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release of the information. (Code Civ. Proc., § 237, subd. (b); see McNally,
supra, 236 Cal.App.4th at p. 1430.) “Absent a showing of good cause for the
release of the information, the public interest in the integrity of the jury
system and the jurors’ right to privacy outweighs the defendant’s interest in
disclosure.” (McNally, supra, at p. 1430, citing People v. Avila (2006)
38 Cal.4th 491, 604 (Avila).)
“Good cause, in the context of a petition for disclosure to support a
motion for a new trial based on juror misconduct, requires ‘a sufficient
showing to support a reasonable belief that jury misconduct occurred . . . .’ ”
(People v. Cook (2015) 236 Cal.App.4th 341, 345 (Cook).) Additionally, the
alleged misconduct must be “ ‘of such a character as is likely to have
influenced the verdict improperly.’ ” (People v. Jefflo (1998) 63 Cal.App.4th
1314, 1322.) “Good cause does not exist where the allegations of jury
misconduct are speculative, conclusory, vague, or unsupported.” (Cook,
supra, 236 Cal.App.4th at p. 346.) Thus, requests for the release of
confidential juror records “ ‘should not be used as a “fishing expedition” to
search for possible misconduct . . . .’ ” (Avila, supra, 38 Cal.4th at p. 604.)
First, we reject any claim that the trial court erred in not providing
Allen with personal identifying juror information because Allen did not
request access to juror identifying information. He has therefore forfeited
such a contention on appeal. However, even on the merits the contention
would fail. Doe’s statement in her email about her purported communication
with a juror in the bathroom is vague and unsupported with details. The lack
of a good cause showing is particularly apparent in view of the trial court’s
determination that Doe’s email lacked credibility and appeared to be little
more than an effort to help Allen after his conviction.
To the extent that Allen contends that, once provided with the
information in Doe’s email about her purported encounter with a juror in the
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bathroom during trial, the court should have inquired further into potential
juror misconduct and conducted an evidentiary hearing about the purported
communication between the juror and Doe, we conclude that the trial court
did not abuse its discretion in this respect. “[W]hen a criminal defendant
moves for a new trial based on allegations of jury misconduct, the trial court
has discretion to conduct an evidentiary hearing to determine the truth of the
allegations.” (Hedgecock, supra, 51 Cal.3d at p. 415.) “[H]owever, [a]
defendant is not entitled to such a hearing as a matter of right. Rather, such
a hearing should be held only when the trial court, in its discretion, concludes
that an evidentiary hearing is necessary to resolve material, disputed issues
of fact.” (Ibid.) “[A] hearing to determine the truth or falsity of allegations of
jury misconduct ‘should be held only when the defense has come forward with
evidence demonstrating a strong possibility that prejudicial misconduct has
occurred’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1234, italics added).
Given the discretion granted to a trial court with respect to whether to
conduct an evidentiary hearing on the issue of juror misconduct, reversal on
appeal is appropriate only where a defendant can demonstrate that the trial
court abused that discretion. (People v. Dykes (2009) 46 Cal.4th 731, 811.)
Allen has shown no abuse of discretion in the trial court’s decision not
to hold an evidentiary hearing. The record discloses no evidence that
demonstrates a strong possibility that prejudicial misconduct occurred. Doe’s
suggestion—made after Allen’s conviction on all counts—that a juror
encountered her in the bathroom and said, “ ‘I should not be talking to you’ ”
without any suggestion that the two discussed the case, is not sufficient to
raise the possibility that the juror engaged in misconduct. Further, the trial
court clearly made a determination that Doe’s statements in the email lacked
credibility, finding that the email appeared to be solely “another instance” of
Doe attempting to help Allen avoid the consequences of his criminal conduct.
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Given these circumstances, we conclude that the trial court did not abuse its
discretion in not holding an evidentiary hearing on the issue of potential
juror misconduct.
C. The trial court did not err in denying Allen’s motion for a new trial
In a final argument, Allen contends that the trial court “erred by
denying appellant’s motion for new trial.” (Boldface, capitalization, and
underscoring omitted.) The basis for Allen’s contention is unclear; although
Allen sets forth legal authority regarding how a trial court is to handle
questions of juror misconduct, the legal analysis includes only argument
regarding challenges to Doe’s credibility as a witness.10 The entirety of this
portion of the argument is as follows:
“Specifically, the motion included the fact that Jane Doe’s
testimony was not only inconsistent but that she also
lacked credibility. Appellant and Jane Doe have had a
relationship lasting approximately 15 years and have
children together. They have had a history of domestic
violence between them. Jane Doe has admitted that on
previous occasions, she lied to the police regarding previous
altercations between them. But most importantly, she
admitted that she had previously lied before to the police in
order to get him in trouble. This is significant considering
what was presented at the jury trial and what Appellant
was sentenced to. As such, this calls into question whether
Appellant had a firearm as well as whether Jane Doe went
10 Allen also mentions that the motion for new trial “assert[ed] witness
credibility, ineffective assistance of counsel, the district attorney failing to
disclose evidence, and newly discovered evidence,” and further “asserted that
the communication between a juror and Jane Do[e] constituted jury
misconduct.” While Allen cites some authority related to new trial motions
based on jury misconduct and argues about Doe’s lack of credibility, he does
not make further mention of the additional grounds that he identifies as
having been asserted in the new trial motion.
It appears from the record that Allen filed at least three motions for
new trial while he was representing himself.
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unconscious. [¶] The Court[ ] erred by denying Appellant’s
motion without taking into consideration these errors
caused in depriving Appellant a fair trial.”
To the extent that Allen is suggesting that Doe’s trial testimony was so
inconsistent that it lacked any credibility at all, such an argument is without
merit. In determining a new trial motion, the trial court “independently
examines all the evidence to determine whether it is sufficient to prove each
required element beyond a reasonable doubt to the judge, who sits, in effect,
as a ‘13th juror.’ ” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133, italics
omitted.) “ ‘In reviewing a motion for a new trial, the trial court must weigh
the evidence independently. [Citation.] It is, however, guided by a
presumption in favor of the correctness of the verdict and proceedings
supporting it. [Citation.] The trial court “should [not] disregard the
verdict . . . but instead . . . should consider the proper weight to be accorded
to the evidence and then decide whether or not, in its opinion, there is
sufficient credible evidence to support the verdict.” [Citation.] [¶] A trial
court has broad discretion in ruling on a motion for a new trial, and there is a
strong presumption that it properly exercised that discretion. “ ‘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.’ ” [Citation.]” (People v.
Fuiava (2012) 53 Cal.4th 622, 729–730.)
In the motion for new trial filed by defense counsel, Allen challenged
the sufficiency of the evidence to support the findings that Doe lost
consciousness and that Allen used a firearm to threaten her, by taking issue
with Doe’s testimony. Defense counsel argued that Doe’s “testimony was not
credible and insufficient as to weight.” The trial court rejected this line of
argument, determining that Doe’s testimony was sufficiently credible on all
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points about which she testified. It was not beyond the bounds of reason for
the trial court to find Doe’s testimony credible. Almost all of Doe’s testimony
lined up with Allen’s own account of the events at issue,11 and there was
additional evidence that was consistent with Doe’s statements about having
suffered blows to the head and losing consciousness. The jury was shown
photographic evidence of the injuries to Doe’s head and face and a forensic
nurse testified that Doe indicated to her shortly after the incident that she
had lost consciousness during the assault. In addition, officers found a
loaded firearm in the home, supporting Doe’s contention that Allen
threatened her with a firearm during the incident. Based on the record, the
trial court did not abuse its discretion in concluding that the evidence was
sufficient to support the jury’s findings, not only with respect to Allen’s guilt
on the charged offenses, but also with respect to the enhancements.
To the extent that Allen intends to suggest that Doe’s email to defense
counsel constituted new evidence that calls into question the veracity of Doe’s
trial testimony and, therefore, undermines her credibility and requires the
granting of a new trial, we disagree. Pursuant to section 1181, subdivision
(8), a trial court may grant a new trial “[w]hen new evidence is discovered
material to the defendant, and which he could not, with reasonable diligence,
have discovered and produced at the trial.” “In ruling on a motion for a new
trial based on newly discovered evidence, the trial court considers the
following factors: ‘ “1. That the evidence, and not merely its materiality, be
newly discovered; 2. That the evidence be not cumulative merely; 3. That it
be such as to render a different result probable on a retrial of the cause;
11 The trial court noted during arguments on post-trial motions, “I would
say if I had to give it a percentage, 85 to almost 90 percent of the testimony
that both [Allen] and [Doe] gave matched up.”
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4. That the party could not with reasonable diligence have discovered and
produced it at the trial; and 5. That these facts be shown by the best evidence
of which the case admits.” ’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th
312, 328.)
“The role of the trial court in deciding a motion for new trial based
upon a witness’s recantation is to determine whether the new evidence is
credible, i.e., worthy of belief by the jury. That determination is made after a
consideration of all the facts pertinent to the particular issue. The trial court
is not the final arbiter of the truth or falsity of the new evidence. [¶] Once
the trial court has found the recantation to be believable, it must then decide
whether consideration of the recantation would render a different result on
retrial reasonably probable. [Citation.]” (People v. Minnick (1989) 214
Cal.App.3d 1478, 1482 (Minnick).) Generally, however, “the recantation of a
witness should be given little credence.” (Id. at p. 1481.) “It has long been
recognized that ‘the offer of a witness, after trial, to retract his sworn
testimony is to be viewed with suspicion.’ [Citations.]” (In re Roberts, supra,
29 Cal.4th at p. 742.) “[T]he trial court is in the best position to determine
the genuineness and effectiveness of the showing in support of the motion
[citation].” (Minnick, at p. 1481.)
We conclude that the trial court did not abuse its discretion in
determining that Doe’s attempted partial recantation of her trial testimony
was disingenuous and that Doe’s email did not constitute newly discovered
evidence that warranted granting a new trial. Again, the trial court clearly
found Doe’s posttrial email to be not credible. In making this determination,
the trial court considered the lengthy history between Doe and Allen, as well
as evidence from telephone calls between the two that demonstrated that
Allen repeatedly sought Doe’s assistance to help him with his case. The
court’s impression was that Doe “loves” Allen, and that “she demonstrated
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her love by lying for [Allen], by coming up with stories to try to get [Allen] out
of the situation.” Where, as here, the claim of newly discovered evidence is
predicated on a witness’s recantation that has been determined by the trial
court to be unworthy of belief, there is no probability of a different result on
retrial and no basis for granting the motion for new trial. (See Delgado,
supra, 5 Cal.4th at p. 329.)
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
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