Opinion
D074754
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. LORENZO LAMAR PEAY, Defendant and Appellant.
Premier Criminal Defense and Sean M. Hobson for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE378711) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. Premier Criminal Defense and Sean M. Hobson for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lorenzo Lamar Peay appeals from a final judgment and requests a new trial, alleging that prejudicial juror misconduct occurred. We disagree and affirm the judgment.
I.
PROCEDURAL AND FACTUAL BACKGROUND
Procedural Background
A jury convicted Peay of raping an intoxicated person and raping an unconscious person. (Pen. Code, § 261, subds. (a)(3), (a)(4).) The court sentenced Peay on August 28, 2018, to a term of six years in prison. Peay filed a timely notice of appeal.
Factual Background
Jaime S. and her boyfriend Sean H. went to a military ball in October 2017. Jaime had about six drinks while out. They started to argue as they left the ball. Before they arrived at Sean's apartment in La Mesa, a deputy sheriff had responded to a noise complaint of two men listening to music in the apartment's parking lot. One of the men matched a description of Peay.
When Jaime and Sean arrived at the apartment, a neighbor, Derrick H., and his friend, Yarub A., were drinking outside in the parking lot. Jaime and Sean went into their apartment and continued to argue. Jaime asked Sean to leave the apartment.
After Sean left, Jaime went outside with a partial bottle of wine to socialize with Derrick and his friend. Jaime drank a few more glasses of wine as she chatted with the men. Derrick pointed to another friend of his, Peay, who was on the stairs and appeared to be falling asleep. Jaime went over to make sure the man was alright, then returned to continue talking with Derrick and Yarub. Jaime had never seen or met Peay before. Peay was wearing a black jacket, red shirt, and a red hat. He appeared to be heavyset, weighing about 240 pounds in Jaime's estimation. Peay appeared to be heavily intoxicated.
Jaime went into her apartment at about 12:30 a.m. She noticed that Sean had left his keys inside the apartment, so she unlocked the door to allow him to enter the apartment when he returned. She undressed, went to bed and fell asleep.
Yarub went back to his apartment soon after Jaime left. From his balcony, Yarub saw Peay jump over a gate and enter Jaime's apartment through a sliding glass door.
Jaime awoke to a man on top of her with his penis inside her vagina. Penetration lasted for five or ten seconds while Jaime came fully awake. She fought against the stranger, hitting and yelling, and ripped his shirt off. She forced him down the hallway and out of her apartment. His red hat and lanyard came off as Jaime hit him. He ran out. Jaime locked the door behind him. Yarub saw Jaime cursing and yelling, "How could you, how could you," as Peay was leaving the apartment.
Jaime called 911. She told the operator a man had been on top of her and raped her. Jaime was crying and nervous when the police arrived. She gave the police the lanyard and the hat that Peay had left behind. The lanyard contained an identification card with Peay's name and photograph on it.
Jaime testified she did not permit anyone to enter her apartment that night and did not consent to sex or any other touching. She did not invite Peay into her apartment and did not consent to sex with him.
Jaime had a medical exam the morning after the rape. Vaginal, external genital, and anal swabs from Jaime all contained DNA that had an extremely high possibility of being from Peay. Jaime's blood alcohol concentration, collected between 6:00 and 8:00 a.m., was .13.
Peay admitted that he had sex with Jaime but claimed that it was consensual. He said that Jaime came out of her apartment after Derrick and Yarub left, invited Peay in, and initiated sex with him.
II.
DISCUSSION
Peay contends that he was prejudiced by juror misconduct because, during deliberations, four jurors had a discussion outside of the jury room about frustration at the length of deliberations. The court found, after a hearing, that this misconduct was not substantial enough to prejudice Peay. After independent review, we reach the same conclusion.
Background
After the jury was selected and sworn, and before testimony began, the court instructed the jury not to discuss the case with anyone until after it was directed to begin deliberations, and then only in the jury room and only when all 12 jurors were present. The court gave this admonishment again the next day, before opening statements.
Arguments and instructions concluded and the case was submitted to the jury on a Friday. The jurors deliberated for about an hour and a half that afternoon, then were released for the weekend. The following Monday, the attorneys informed the court that juror misconduct may have occurred during the morning break.
The court heard evidence from an attorney not connected to this case. The attorney told the court that she overheard four jurors discussing the case in the courthouse elevator. She said that one of the jurors talked about how long the deliberations would continue and when they could get it done. Another juror asked if there were a cut-off point, and a third juror said deliberations would continue until finished. A fourth said that no one would change her vote; she was tired of the trial and "[w]e just need to be done." She also said something to the effect of, "If we can just get to convicting." The jurors continued talking after they left the elevator, but the attorney did not follow them. The attorney said they did not discuss specific evidence from the trial. The court summarized the evidence as frustration with how long deliberations were taking, wondering if the judge would cut off the deliberations, and one juror asking, "if we can just convict or get this done," because she was not going to change her vote.
Peay moved for mistrial due to juror misconduct. The court weighed the gravity of the misconduct. It considered that there was no discussion about the evidence in the case. The court found the jurors expressed frustration about an inability to reach a decision but no prejudice was shown by the jurors toward either side. The court found misconduct occurred but it was not substantial enough to find prejudice or declare a mistrial. The court denied Peay's motion for mistrial.
The jurors returned to the courtroom. The court told the jurors it heard a report of several jurors discussing the case on the elevator, not the content of the case but their frustration during deliberations and the inability to reach a decision. The court emphasized to all 12 jurors that it was improper to discuss anything about the case outside the deliberations room, including general matters such as scheduling, length of the session, or how long deliberations would take. The foreperson did not think any discussions from outside the jury room had trickled into the jury room or affected deliberations. The court reminded the jurors of the importance of their obligation and told them not to express frustrations.
The jurors continued deliberating for the remainder of the day and the next day. They requested and received a read-back of the testimony of one of the deputy sheriffs who responded to the rape call. He testified about Jaime's demeanor, her level of intoxication, and the identification of Peay from the identification card in his lanyard that was left behind.
On the afternoon of the third day of deliberations, the jury returned guilty verdicts on both felony counts charged.
Legal Principles
"A criminal defendant has a constitutional right to trial by an impartial and unbiased jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; [citation].) A deprivation of that right occurs even if only one juror is biased." (People v. Merriman (2014) 60 Cal.4th 1, 95 (Merriman).) The touchstone of juror misconduct is bias or impartiality. Jurors are impartial if able to render a verdict based on the evidence presented in court, setting aside opinions or impressions not based on the admitted evidence. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 485.) A rebuttable presumption of prejudice arises when one or more jurors are exposed to extraneous material that is inherently prejudicial, or when it is substantially likely that a juror was actually biased against the defendant. (Merriman, at p. 95; People v. Nesler (1997) 16 Cal.4th 561, 579; In re Carpenter (1995) 9 Cal.4th 634, 650-655.) Prejudice and bias in the legal context do not mean damage to the defendant that naturally flows from relevant, highly probative evidence. Bias and prejudice refer to an emotional bias against a party based on factors extraneous to the evidence at trial. (See People v. Young (2019) 7 Cal.5th 905, 927 (Young).)
When a trial court is aware of possible juror misconduct, it should make whatever inquiry is reasonably necessary to resolve the matter. It has great discretion in determining the scope of the inquiry. (People v. Virgil (2011) 51 Cal.4th 1210, 1284 (Virgil).) The trial court's investigation of the allegations was sufficient here. (Ibid.; People v. Ledesma (2006) 39 Cal.4th 641, 738 (Ledesma).) The reporting party was a defense attorney who knew the importance of impartial jurors. The jurors did not discuss the evidence from the trial or any extraneous evidence. The jurors did not communicate in any significant manner with a nonjuror. A third party overhearing conversations about the length of deliberation, and not about any fact related to the case, is not an unauthorized communication with a nonjuror concerning a matter pending before the jury. (Merriman, supra, 60 Cal.4th at p. 95.) What the reporting party heard did not suggest there was more juror misconduct to be discovered. (Ibid.) The comments overheard by the attorney did not suggest an ongoing discussion of the case, search for new information about the facts, or other fishing for extraneous material. The scope of the court's investigation of misconduct was sufficient. (Virgil, at p. 1284.)
We review the entire record, including the nature and circumstances of the misconduct, to determine if there is a substantial likelihood that the jurors in question were actually biased against the defendant. In conducting this review, we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence and independently apply the law to those historical facts. (Merriman, supra, 60 Cal.4th at pp. 95-96.)
Analysis
The improper discussion by the jurors did not involve any extraneous evidence. A presumption of prejudice could therefore arise only if it were substantially likely that any juror was actually biased against the defendant. (Merriman, supra, 60 Cal.4th at p. 95; Carpenter, supra, 9 Cal.4th at pp. 650-655.) Firm opinions by some of the jurors after deliberations began do not demonstrate actual bias against Peay. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 75 (Allen); Ledesma, supra, 39 Cal.4th at pp. 729-730.) The Supreme Court has noted that it is not uncommon to hold a vote at the beginning of deliberations to find out the level of consensus and issues to be explored. (Allen, at p. 75; Ledesma, at pp. 729-730.) The Allen court stated, "We cannot reasonably expect a juror to enter deliberations as a tabula rasa, only allowed to form ideas as conversations continue. What we can, and do, require is that each juror maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination." (Allen, at p. 75.)
The out-of-jury room discussion here occurred after about three hours of deliberation—an hour and a half or so on Friday afternoon and the same on Monday morning before the mid-morning break. Because Peay admitted sexual intercourse, there was only one question for deliberation: did the victim consent to sex with Peay or did Peay act without her consent. Yarub's testimony that Peay jumped over a gate and entered Jaime's apartment through a sliding glass door was strong evidence that Jaime did not go outside and invite Peay into her apartment. There was no impropriety or suggestion of bias in jurors having formed an opinion on the case after submission and a few hours of deliberation. And, regardless of what the jurors had said rhetorically, they continued to deliberate and to examine the evidence for another full day—the rest of Monday and past lunch the following day. The jurors heard the read-back of testimony from the deputy who had responded to the scene. His testimony on the victim's demeanor was highly relevant to the question of consent. Apparently the jurors continued a rational and collegial discussion before coming to a unanimous opinion.
The discussion outside the presence of all jurors was improper, but it did not raise a presumption of prejudice. The comments would not have been misconduct if they had occurred in the jury room. No extraneous evidence was discussed or discovered. There is no evidence that the jurors were emotionally biased against Peay based on extraneous factors. Nothing in the record supports Peay's statements in the conclusion of his brief that the jury was racially biased and tainted by inadmissible character evidence.
Although there was juror misconduct, it did not result in bias, impartiality or error.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. GUERRERO, J.