Supreme Court of California Justia
Citation 56 Cal.4th 866

In re Boyette




Filed 5/30/13



IN THE SUPREME COURT OF CALIFORNIA



In re MAURICE BOYETTE

S092356

on Habeas Corpus.

____________________________________)


In 1993, an Alameda County jury convicted petitioner Maurice Boyette of

two counts of first degree murder for shooting and killing Gary Carter and Annette

Devallier. (Pen. Code, § 187.)1 The jury also convicted petitioner of being a felon

in possession of a firearm (§ 12021) and sustained allegations that he was both

armed with (§ 12022, subd. (a)) and used (§ 12022.5, subd. (a)) a firearm during

the crimes. The jury also sustained a multiple-murder special-circumstance

allegation (§ 190.2, subd. (a)(3)), rendering him eligible for the death penalty.

Following the penalty phase of trial, the jury sentenced petitioner to death. This

court affirmed his conviction and sentence in 2002. (People v. Boyette (2002) 29

Cal.4th 381.)

While his appeal was pending, petitioner also filed a petition for writ of

habeas corpus in this court. Having found the petition stated a prima facie case for

relief on several claims of alleged juror misconduct, this court issued an order on


1

All further statutory references are to the Penal Code unless otherwise

noted.

1





November 15, 2006, instructing the Director of the Department of Corrections2 to

show cause why relief should not be granted. We thereafter appointed a referee to

determine certain disputed facts. After holding an evidentiary hearing, our referee

filed his report with this court, and the parties filed their exceptions to it. The case

is now ripe for decision. As explained below, we accept the referee‟s report and

findings as supported by substantial evidence, discharge the order to show cause,

and deny relief.

I. BACKGROUND

A. The Facts of the Crimes

The facts surrounding petitioner‟s crimes, set forth in more detail in our

opinion on appeal (People v. Boyette, supra, 29 Cal.4th at pp. 403-407), are not

relevant to the analysis of the juror misconduct claims raised in the habeas corpus

petition and contained in the order to show cause. Suffice it to say the evidence

showed that petitioner acted as a bodyguard for a drug dealer in Oakland named

Antoine Johnson; Johnson learned the two victims, Carter and Devallier, had

allegedly stolen rock cocaine and cash from a safe house Johnson maintained; and

petitioner accompanied Johnson to the house, confronted the victims and, in the

ensuing melee, shot and killed both victims at pointblank range.

B. The Habeas Corpus Petition

Petitioner filed a lengthy petition for writ of habeas corpus raising

numerous issues. We found the petition stated a prima facie case for relief as to

six claims, all of which related to various aspects of alleged misconduct by jury


2

The Department of Corrections is now called the Department of

Corrections and Rehabilitation. (See Gov. Code, § 12838, subd. (a); In re Large
(2007) 41 Cal.4th 538, 544, fn. 4.)

2




foreperson Pervies Lee Ary, Sr. (Ary).3 (See People v. Duvall (1995) 9 Cal.4th

464, 475 [“If . . . the court finds the factual allegations, taken as true, establish a

prima facie case for relief, the court will issue an [order to show cause].”].)

Accordingly, we issued an order to show cause, directing the custodian “to show

cause before this court when the proceeding is ordered on calendar, why the relief

prayed for should not be granted on the grounds that: (1) Juror Pervies Ary

concealed relevant facts or gave false answers during voir dire concerning his

prior felony conviction and other contacts with the justice system; (2) Juror

Pervies Ary concealed relevant facts or gave false answers during voir dire

concerning the prior criminal records of his sons; (3) . . . ;[4] (4) Juror Pervies Ary


3

Petitioner filed his petition for writ of habeas corpus in 2000, and the

petition includes the full names of the trial jurors. Rule 8.332(b)(1) of the
California Rules of Court presently addresses protecting juror anonymity in
criminal cases, directing that “[t]he name of each trial juror . . . sworn to hear the
case must be replaced with an identifying number wherever it appears in any
document.” As that rule was not effective until January 1, 2007, it could not apply
to the petition. The precursor to rule 8.332, former rule 31.3, was effective on
January 1, 2004, but even that rule came after petitioner filed his petition. Both
rules of court implement Code of Civil Procedure section 237, which provides in
pertinent part: “Upon the recording of a jury‟s verdict in a criminal jury
proceeding, the court‟s record of personal juror identifying information of trial
jurors, as defined in Section 194, consisting of names, addresses, and telephone
numbers, shall be sealed until further order of the court as provided by this
section.” (Id., subd. (a)(2).)


Although we have generally treated rule 8.332 to have retroactive effect so

as to maximize juror privacy, the petition, all subsequent briefing by both parties,
as well as our order to show cause and the evidentiary hearing record all identify
the jurors by name. As no party has asked to shield the identities of the jurors, we
decline to do so.

4

The order to show cause originally referenced petitioner‟s claim that Ary

had concealed relevant facts when answering question No. 24 on the jury
questionnaire, which asked whether he had ever witnessed a crime. In his
traverse, however, petitioner stated that, “given the other, numerous and even
more egregious falsehoods of Juror Ary . . . , petitioner does not believe that a

(footnote continued on next page)

3




concealed relevant facts or gave false answers during voir dire concerning his

problem with alcohol and his son‟s drug addiction; (5) Juror Pervies Ary

introduced information into the jury deliberations concerning an alleged prior

murder committed by petitioner Maurice Boyette, although no evidence of such a

crime was introduced at trial; and (6) Juror Christine Rennie and one other juror,

at the urging of Juror Ary, during the pendency of the jury deliberations, rented

and watched a videotape of the movie American Me in order to gather background

information for the trial.”

The Attorney General, representing the Director of the Department of

Corrections and Rehabilitation, thereafter filed a return (see People v. Duvall,

supra, 9 Cal.4th at p. 475), and petitioner responded by filing his traverse (id. at

p. 476; see generally In re Bacigalupo (2012) 55 Cal.4th 312, 332-333). After

considering the return (in which the Attorney General conceded the existence of

disputed material facts) and the traverse (in which petitioner reasserted his original

allegations of juror misconduct), we determined the case turned on disputed

questions of fact requiring resolution in an evidentiary hearing. Therefore, on

September 9, 2009, we issued an order appointing the Honorable Jon Rolefson,

Judge of the Alameda County Superior Court, to serve as our referee in this

proceeding and to answer specific factual questions, addressed in more detail

below.


(footnote continued from previous page)

determination of this fact is necessary to proving that Juror Ary was an
unqualified, biased juror. Petitioner would prefer to withdraw this allegation
rather than prolong litigation in this case.” Accordingly, we declined to ask the
referee to take evidence on this topic.

4




C. The Evidentiary Hearing, the Referee’s Report, and the

Parties’ Exceptions Thereto

1. Ary’s Failure to Reveal His Criminal History

Question No. 25 on the jury questionnaire given the prospective jurors in

petitioner‟s case asked: “HAVE YOU, A CLOSE FRIEND, OR RELATIVE

EVER BEEN ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT

COME TO COURT?” Ary answered “NO.” Despite this response, petitioner

alleges that Ary himself had several times been accused, and even convicted, of a

crime and failed during voir dire to disclose that fact, to wit, that Ary (1) was

charged in 1964 with two counts of robbery and grand theft, and was convicted

that same year of felony grand theft; (2) was charged in 1971 with seven counts of

robbery, but the charges were dismissed for insufficient evidence; (3) pleaded

guilty to driving under the influence of alcohol (DUI), a misdemeanor, in 1982

and was placed on probation; and (4) had his probation revoked in 1982 and was

reinstated to probation that same year. Ary himself declares he “was arrested in

. . . 1963 and spent some time in jail.”

Petitioner also alleges his trial attorney was unaware of Ary‟s felon status

or his concealments. A declaration by Walter Cannady, petitioner‟s lead trial

attorney, supports this allegation. Cannady states he was unaware of Ary‟s prior

felony conviction and that, had he known, he would have questioned Ary on the

subject. Moreover, based on his experience with the trial judge, Cannady is

confident the court would have sustained a challenge against Ary for cause.

Cannady further declares he would have used a peremptory challenge to remove

Juror Ary in any event.

In the return, respondent agreed a dispute of material facts existed “whether

Ary deliberately misrepresented his prior criminal history from decades ago or

whether he believed that record had been expunged, was too old to count, or was

5




otherwise not covered by the questions asked on voir dire.” We thereafter directed

our referee to answer the following questions: “Given that Juror Pervies Lee Ary

was in 1964 convicted of felony grand theft, was incarcerated as a result, was later

charged in 1971 with six [sic] counts of robbery, later pleaded guilty to

misdemeanor drunk driving in 1982, and then had his probation revoked in 1982,

and given that Ary failed to disclose this information either on his juror

questionnaire or during voir dire in petitioner‟s trial, what were Ary‟s reasons for

failing to disclose these facts? Was the nondisclosure intentional and deliberate?

Considering Ary‟s reasons for failing to disclose these facts, was his nondisclosure

of the above facts indicative of juror bias? Was Ary actually biased against

petitioner?”

Ary was the first witness to testify at the evidentiary hearing, and he

admitted he had been arrested and convicted of a felony in 1964 and served six

months in jail. Ary also was arrested and charged with robbery in 1971, but was

exonerated when the actual culprit was apprehended. In 1982, he was arrested for

DUI and pleaded guilty to a misdemeanor; his punishment included participation

in Alcoholics Anonymous.

Ary further explained that when he was called for jury duty in petitioner‟s

case, he called the telephone number on the jury summons and revealed his 1964

felony conviction, but was told that because he entered military service just after

his conviction, his conviction had been expunged and “that I don‟t have to be

concerned with that as having a record.” When asked why he did not reveal his

1971 arrest for robbery, as he was clearly “accused” of the crime before his

eventual exoneration, he explained that he understood question No. 25 as asking

whether he had suffered any convictions, not whether he had merely been accused

of a crime, that he had simply read the question incorrectly, and that he had “made

a mistake.” Regarding his failure to reveal his guilty plea to DUI in 1982, he first

6




stated, “I feel that I should have never gotten that” because he had consumed only

two beers in a five-hour period, but then backtracked and said he did not consider

the DUI charge to be a criminal matter and it did not seem important enough to

mention.

The referee found that Juror Ary honestly misunderstood question No. 25

as asking only for criminal convictions, not merely criminal accusations. “Clearly,

the question was not limited to convictions, since it not only used the word

„accused,‟ but also added the phrase, „even if the case did not come to court.‟ On

the other hand, there was no further explanation provided, no additional questions

on the subject, and no inquiry during voir dire that might have provided

clarification. Moreover, Mr. Ary expressed the same misunderstanding of the

question while testifying at the hearing. Thus, while his interpretation of the

question was certainly unreasonable, it is not unbelievable under the

circumstances. Since his only convictions had been set aside, he believed he had

none to report.”

The referee further found that because Ary “believed” he was answering

question No. 25 accurately, “his nondisclosure was not intentional and deliberate,”

that such nondisclosure was therefore “not indicative of juror bias,” and that Ary

was not actually biased against petitioner.

Petitioner raises several exceptions to these findings, but we find none

meritorious. First, he contends the referee improperly limited his ability to present

evidence relevant to the question of prejudice flowing from Juror Ary‟s various

concealments, having erroneously decided “that any evidence of Ary‟s actions that

demonstrated juror bias during the trial [was] barred.” As we explain, we

conclude petitioner did not preserve this claim for our review and that it lacks

merit in any event.

7




Prior to calling the first witness, petitioner‟s habeas corpus counsel argued

that to prove bias, an issue we had asked the referee to address, she “need[ed] to

be permitted to establish by testimony the underlying elements of that question.”

The referee responded to this argument: “Actually, the Supreme Court has given

me very specific guidances [as] to just what I am supposed to determine. The

issue of bias, it asks me in Question No. 1, was Mr. Ary‟s . . . nondisclosure of

certain facts indicative of juror bias and was he actually biased against petitioner,

and I think you are talking about . . . two different concepts, implied bias and

actual bias, and the same questions are asked in Question No. 2, and that‟s where

those issues come in, and so I agree that those are relevant, but [proving the juror

was] prejudice[d] is a different issue.” (Italics added.) Counsel agreed.

Later, when questioning Ary, counsel asked: “Mr. Ary, do you recall

asking the [trial court] probably in writing during the guilt phase how can a

homeless person obtain private lawyers or are they court appointed?”5 When the

referee sustained the People‟s objection, counsel asked: “Is that as to all of the

questions [Juror Ary] asked? What I‟m trying to establish, Your Honor, is I am

going to ask the witness if he remembers question by question because he does not

remember at this point. . . .” The following colloquy then occurred:

“THE COURT: . . . I have very specific areas of inquiry, and that is not

one of them, and I understand that there is a chance that this might peripherally


5

As we explained on appeal, “[d]uring the presentation of the defense case,

the trial court received a note from a juror. The juror asked four questions: „How
can a homeless person obtain such private lawyer[s] or are the [defense attorneys]
court appointed? [¶] [Regarding] the neighbor who lived 4 houses up the street[,]
describe the size of the person he saw standing in the street or over (near) the body
(sml, med, lrg) short or tall. [¶] [Is t]his blind person being tried also or what[?]
[¶] Did the person on trial [take,] or is he willing to take[,] a lie detector test[?]‟ ”
(People v. Boyette, supra, 29 Cal.4th at p. 429, fn. omitted.)

8




relate to one of the areas of inquiry that is spelled out by the Supreme Court.

I mean, it could, but I don’t see it, so I might need you to explain it to me.

“[COUNSEL]: Your Honor, I believe it goes to bias, and if you look at the

question—

“THE COURT: I am going to ask you to—I‟m going to sustain the

objection now. I am going to sustain it now. That’s not to say that if at a later

time based on other evidence that is presented it becomes clear what the link

might be, I won‟t let you ask it again, but as of right now, it‟s sustained.” (Italics

added.)

Counsel did not later attempt to explain the link between the intended line

of questioning and a theory of admissibility. The referee and the parties had

earlier agreed that no opening briefs would be filed before the reference hearing,

so no fuller explanation of counsel‟s theory of admissibility was available until her

briefs before this court. Here, counsel argues the referee erroneously interpreted

our order of reference as limited to Ary‟s state of mind at the time of the

concealment, and thus limited to evidence of possible bias “at the time he omitted

material evidence from the questionnaire.” According to petitioner, the referee‟s

interpretation of our order led him, for example, to exclude evidence of Ary‟s

“labeling certain jurors as „naive‟; any discussion among some of the jurors

concerning the lying in wait special circumstance; Ary‟s note to the trial court

expressing his inappropriate hostility to petitioner.” But this theory was not

explained to the referee, who specifically indicated he was sustaining the People‟s

objection subject to a later demonstration of how the evidence was relevant. As

petitioner did not thereafter try to show the link between the excluded evidence

and a material fact to be proved at the hearing, he forfeited the claim. (People v.

Holloway (2004) 33 Cal.4th 96, 133 [where a trial court tentatively excludes

evidence and states counsel is free to later ask the court to change its ruling, failure

9




to do so forfeits the issue for appeal]; People v. Ennis (2010) 190 Cal.App.4th 721,

735-736 [same].)

Were we to find the issue was properly preserved for our review, we would

find it meritless. For example, question No. 1 of our September 9, 2009, order,

which concerns Ary‟s failure to reveal his criminal past, directed the referee to

determine “what were Ary‟s reasons for failing to disclose these facts? Was the

nondisclosure intentional and deliberate? Considering Ary‟s reasons for failing to

disclose these facts, was his nondisclosure of the above facts indicative of juror

bias? Was Ary actually biased against petitioner?” (Italics added.) Read in

context, the question did not ask the referee to answer whether, as a global matter,

Ary was a biased juror. Instead, the referee reasonably interpreted the order‟s

language to direct him to determine whether Ary’s concealment of his criminal

past demonstrated that he was biased. The language of the other questions is

subject to the same interpretation. Accordingly, we reject petitioner‟s first

exception, both because it was forfeited and because it is meritless.

Second, petitioner contends the referee was mistaken when he concluded

Ary “did not disclose his own criminal history on voir dire because he was not

asked about it.” (Italics added.) Clearly question No. 25 asked jurors such as Ary

to disclose their criminal history. But immediately following the passage in the

referee‟s report to which petitioner excepts, the report explains that “[t]he only

inquiry into this subject was a single question in the written questionnaire . . . .”

Accordingly, the referee must have meant that Ary was never asked orally about

his criminal past on voir dire, a circumstance confirmed by the transcript of the

voir dire proceedings.

Third, petitioner excepts to the referee‟s findings because the referee “failed

to give any weight” to the fact Ary gave several different reasons for his failure to

disclose his criminal history. Further, according to petitioner, “[t]he hearing

10




record reflects Ary‟s complete lack of credibility.” To be sure, Ary made some

inconsistent statements, some of which could have undermined his believability,

but “[t]he main reason for an evidentiary hearing is to have the referee determine

the credibility of the testimony given at the hearing. [Citation.] Because the

referee observes the demeanor of the witnesses as they testify, we generally defer

to the referee‟s factual findings and „give great weight‟ to them when supported by

substantial evidence.” (In re Bacigalupo, supra, 55 Cal.4th at p. 333.)

“ „Deference to the referee is particularly appropriate on issues requiring

resolution of testimonial conflicts and assessment of witnesses‟ credibility,

because the referee has the opportunity to observe the witnesses‟ demeanor and

manner of testifying.‟ ” (In re Price (2011) 51 Cal.4th 547, 559.)

Although Ary made some inconsistent statements, “we assume the referee

considered those discrepancies, along with [the witness‟s] demeanor, while

testifying, before concluding he was a credible witness.” (In re Bacigalupo,

supra, 55 Cal.4th at p. 338 (conc. opn. of Liu, J.).) Accordingly, we reject

petitioner‟s contention that the referee‟s findings as to Ary‟s credibility are

unsupported by substantial evidence. (In re Hardy (2007) 41 Cal.4th 977, 993 [we

give great weight to findings of the referee that are supported by substantial

evidence].) Instead, we conclude that in light of all the evidence, including Ary‟s

demeanor while testifying, the referee reasonably credited Ary‟s explanation for

his failure to disclose his own criminal history when answering question No. 25 on

the jury questionnaire.

Accordingly, we reject petitioner‟s exceptions to the referee‟s findings and

instead accept them, supported as they are by substantial evidence.

11




2. Ary’s Failure to Reveal His Relatives’ Criminal History

In addition to inquiring about the juror himself, question No. 25 also asked

whether Ary had any relatives who had been “ACCUSED OF A CRIME, EVEN

IF THE CASE DID NOT COME TO COURT.” As noted, Ary answered “NO.”

Petitioner alleged in his habeas corpus petition that Ary failed to disclose that his

two sons, Pervies Lee Ary, Jr. (Pervies Jr.), and Pervies Lee Ary II (Pervies II),6 as

well as two other relatives, had significant criminal histories. Petitioner‟s

documentary support for these allegations shows Pervies Jr. (1) was charged in

1986 with four counts of transportation of narcotics, possession, and possession

for sale, and pleaded guilty to all four counts in return for being sentenced to three

years‟ probation on conditions including 210 days in jail; (2) pleaded guilty the

same day in a different case to possession for sale of cocaine and was sentenced to

probation on conditions including a consecutive term of 150 days in jail;

(3) pleaded guilty in 1987 to sale of marijuana, was sentenced to three years in

custody, had the sentence suspended, and was committed to the California

Rehabilitation Center in Norco due to his narcotics addiction; and (4) pleaded

guilty in 1990 to driving with a suspended license, a misdemeanor.

Documents also indicate Ary‟s second son, Pervies II, had been charged in

1993 with misdemeanor battery and that this criminal charge had been filed the

same day Ary was questioned on voir dire in petitioner‟s case. The battery charge,

however, was ultimately dismissed.

In his declaration, Ary also declares that “[o]ne of my first cousins got a

life sentence during the 1950s for killing a man.” Trial Attorney Cannady declares

he was unaware of the arrests and convictions of Pervies Jr., but makes no mention


6

The juror‟s younger son is sometimes referred to as Pervies Ary II and

sometimes as Pervies Ary III. We will refer to him as Pervies II.

12




of Ary‟s cousin. Cannady declares he would have used a peremptory challenge to

remove Ary as a juror had he known these facts.

Respondent, in the return, agreed that a dispute of material fact existed

regarding whether “Ary deliberately misrepresented his family‟s prior criminal

records.” We thereafter asked the referee to answer these questions: “Given that

two of Juror Pervies Lee Ary‟s sons had criminal records, and that one of Ary‟s

cousins was convicted of murder, and given that Ary failed to disclose this

information on either his juror questionnaire or during voir dire in petitioner‟s

trial, what were Ary‟s reasons for failing to disclose these facts? Was the

nondisclosure intentional and deliberate? Considering Ary‟s reasons for failing to

disclose these facts, was his nondisclosure of the above facts indicative of juror

bias? Was Ary biased against petitioner?”

At the evidentiary hearing, Ary confirmed he has two sons: Pervies Jr.,

born in 1964, and Pervies II, born in 1974. Pervies Jr. was arrested in the 1980s

on a drug-related charge; Ary remembered because Pervies Jr.‟s mother had called

him at the time and asked him to help with raising bail. Ary testified that he was

estranged from Pervies Jr. and had learned the details of the arrest “after I was a

juror” because he “wasn‟t around” his son. He also testified, however, that he

could not say if he had learned of Pervies Jr.‟s felony conviction before serving as

a juror in petitioner‟s trial.

Ary‟s younger son, Pervies II, also had trouble with the law. Sometime

before petitioner‟s trial, Ary accompanied his son to juvenile court to face a

misdemeanor charge connected to an incident of road rage. When Pervies II failed

to complete an essay assigned as a condition of probation, he was arrested and

committed to juvenile hall. At the evidentiary hearing, Ary explained that he did

not reveal Pervies II‟s criminal history on his jury questionnaire because, in his

judgment, “it didn‟t go to court, so I said, well, that‟s not even important.”

13




Clarifying his comment, Ary said he thought he need not mention the matter

because it was a juvenile proceeding.

Ary testified at the hearing that he had both a nephew and a cousin who

were serving sentences of life without parole for murder, and admitted he had

revealed neither relative on his jury questionnaire. He explained the omissions by

saying, “I didn‟t think about it,” because the nephew was his ex-wife‟s sister‟s son

and Ary did not have direct contact with him, and the cousin had been sentenced

to life in prison almost 50 years ago and Ary had never had contact with him.

The referee apparently credited Ary‟s explanations for his nondisclosure of

the criminal history of his two sons and other relatives, for after noting Ary‟s

explanations, the referee concluded that “Ary‟s nondisclosure . . . was due in part

to his belief that he was answering the question accurately . . . .” Moreover, Ary‟s

omissions were due “in part to his failure of recollection” and thus were “not

intentional and deliberate.” Because Ary believed he was answering question No.

25 accurately, his omission of his relatives‟ criminal history “was not indicative of

juror bias,” and he was not in fact biased against petitioner.

Petitioner raises exceptions to various portions of the referee‟s findings, but

we find them meritless. First, he contends the sheer number of Ary‟s relatives

with serious criminal records is “revealing” and thus indicative of Ary‟s intent to

conceal. He also contends that Ary‟s testimony at the evidentiary hearing was

inconsistent with what he had told the district attorney‟s investigator. But these

matters were fully aired at the hearing, and we assume the referee took these

factors into account before concluding Ary‟s failure to disclose was unintentional.

(In re Bacigalupo, supra, 55 Cal.4th at p. 338 (conc. opn. of Liu, J.).)

The same reasoning disposes of petitioner‟s further claim that because Ary

testified that at the time of petitioner‟s trial he knew his son Pervies Jr. had been

“arrested numerous times,” we should not credit the referee‟s conclusion that

14




Ary‟s omissions were due “in part to his failure of recollection.” As Ary also

testified that all he knew at the time of petitioner‟s trial was what he had heard

from Pervies Jr.‟s mother, namely that Pervies Jr. had been arrested the one time,

we assume the referee considered these possible inconsistencies before reaching

his conclusion.

Petitioner argues for a different result, citing Dyer v. Calderon (9th Cir.

1998) 151 F.3d 970. In Dyer, it came to light before the penalty phase of a capital

trial that a juror‟s brother had been shot and killed six years earlier, but the juror

had not mentioned the incident in her juror questionnaire. When the trial court

held a hearing and questioned the juror about it, she explained she thought her

brother‟s death was an accident, not a crime. The trial court concluded the juror

did not demonstrate a lack of candor and allowed her to remain on the jury, which

eventually sentenced the defendant to death. The Ninth Circuit Court of Appeals,

sitting en banc, disagreed, finding the trial court should have uncovered additional

facts that clearly demonstrated the juror‟s explanation was unbelievable because

“the killing had none of the earmarks of an accident.” (Id. at p. 973.) “[A] judge

investigating juror bias must find facts, not make assumptions, and here the key

facts were easily discernible. A few questions to [the juror] about her relationship

with her brother; an examination of the casefile; a request for confirmation from

the prosecutor; an order to bring [her husband] into court—any or all of these

would have disclosed that [the juror] knew a lot more about her brother‟s death

than she was letting on.” (Id. at p. 976.)

Because the federal appellate court found “the facts were not properly

developed by the state court, its finding that [the juror] was unbiased is not entitled

to a presumption of correctness.” (Dyer v. Calderon, supra, 151 F.3d at p. 979.)

The Ninth Circuit thus felt free to determine de novo whether the juror was biased

based on new facts discovered by federal habeas corpus counsel. The federal

15




appellate court found her failure to disclose critical facts raised an inference of

bias but admitted that whether the juror “was actually biased—i.e., whether she

was disposed to cast a vote against Dyer—is difficult to figure out eighteen years

later.” (Id. at p. 981.) Nevertheless, “there is every indication that she was not

indifferent to service on the jury. After watching a number of potential jurors

disclose relatively minor crimes and get dismissed, she chose to conceal a very

major crime—the killing of her brother in a way that she knew was very similar to

the way Dyer was accused of killing his victims. She also failed to disclose many

other facts that would have jeopardized her chances of serving on Dyer‟s jury.

Later on, when she was questioned about her brother‟s death, she lied once again

by pretending she thought it was an accident, and by telling the judge that no one

in her family had testified about the killing. The inference we draw from all this is

that [the juror] lied in order to preserve her status as a juror and to secure the right

to pass on Dyer‟s sentence.” (Id. at p. 982, fn. omitted.)

In the circumstances of the Dyer case, the Ninth Circuit Court of Appeals

itself made an assessment of the offending juror‟s state of mind, at the time of her

concealment, based on facts developed by federal habeas corpus counsel. The

court felt free to do so because it found the state trial court, which had questioned

the juror, had failed to conduct a reasonably thorough investigation. By contrast,

the issue of the juror‟s state of mind in the instant case arose after trial, and we

directed our referee to conduct an evidentiary hearing. The referee made clear

credibility determinations after observing Ary and other former jurors testify.

Were we to assess the matter de novo, as the Dyer court did, we might come to a

different conclusion, as Ary‟s concealments were unusual in their number and

breadth. But because the referee‟s credibility determinations are supported by

substantial evidence, and there being no suggestion the referee‟s hearing was

inadequate, we are not at liberty to disregard those findings. As the Dyer court

16




itself cautioned: “[W]e must be tolerant, as jurors may forget incidents long

buried in their minds, misunderstand a question or bend the truth a bit to avoid

embarrassment. The Supreme Court has held that an honest yet mistaken answer

to a voir dire question rarely amounts to a constitutional violation; even an

intentionally dishonest answer is not fatal, so long as the falsehood does not

bespeak a lack of impartiality.” (Dyer v. Calderon, supra, 151 F.3d at p. 973.)

Although we are not bound to follow the decisions of lower federal courts in any

event (People v. Avena (1996) 13 Cal.4th 394, 431), Dyer is distinguishable on its

facts and thus unpersuasive.

Petitioner next contends that Ary‟s recollection of Pervies Jr.‟s mother

asking him for bail money indicates that Pervies Jr.‟s troubles were “significant”

for Ary, suggesting that Ary‟s explanation of his failure to recall the incident

should not be believed. We leave it to the referee to sort out these matters and

conclude his decision to credit Ary‟s explanation—after hearing him testify and

observing his demeanor—is supported by substantial evidence. (In re Price,

supra, 51 Cal.4th at p. 559.)

Petitioner‟s final exception concerns Ary‟s nephews. Petitioner argues that

although Ary testified his former sister-in-law‟s four sons—Ary‟s nephews by

marriage—were all in prison for drug- or homicide-related crimes, “[t]his

testimony was ignored by the referee.” We reject the claim. Only one nephew‟s

troubles were known to Ary at the time of petitioner‟s trial, and the referee found

the omission nondispositive, reasoning that Ary did not think of the nephew

because he was not a person with whom he had had any meaningful contact.

Thus, according to the referee, Ary‟s failure to disclose “the criminal history of

family members was due in part to his belief that he was answering the question

accurately and in part to his failure of recollection.”

17




We conclude that in light of all the evidence, including Ary‟s demeanor

while testifying, the referee reasonably credited Ary‟s explanation for his

omissions in answering question No. 25 on the jury questionnaire with regard to

the criminal histories of his sons and other relatives. We thus reject petitioner‟s

exceptions and accept the referee‟s findings.

3. Ary’s Alleged Failure to Reveal His Problem With Alcohol

or His Son’s Drug Addiction

Question No. 61 on the jury questionnaire asked: “HAVE YOU, A CLOSE

FRIEND OR RELATIVE EVER HAD A PROBLEM INVOLVING THE USE

OF DRUGS OR ALCOHOL?” Ary answered “NO.” The question was relevant

to jury selection because the murders of Carter and Devallier occurred in

connection with the illegal drug trade, and the parties understandably wished to

know if a potential juror had any personal connections or problems with that

milieu. Indeed, defense counsel at trial specifically informed Ary during voir dire

that the killings took place at “a drug house. And some of the people who may

testify, you know, may have used drugs.” Counsel then asked Ary, “Is that going

to cause you any bias or prejudice one way or the other?” Ary replied, “I don‟t

think so.”

Petitioner alleged in his habeas corpus petition that despite answering

question No. 61 in the negative, Ary was in fact an alcoholic who had been

ordered to attend Alcoholics Anonymous as a condition of his misdemeanor DUI

conviction in 1982. In addition, his son Pervies Jr. had been sent to the California

Rehabilitation Center in Norco because he was a drug addict. Respondent

conceded an evidentiary hearing was necessary to resolve disputed facts

concerning Ary‟s answer to question No. 61. We thereafter asked the referee to

answer these questions: “Given that Juror Pervies Lee Ary had previously been

convicted of driving under the influence and was as a result required to attend

18




meetings of Alcoholics Anonymous, and that one of his sons had several prior

criminal convictions for drug-related crimes and had been incarcerated at the

California Rehabilitation Center at Norco, and given that Ary failed to disclose

this information on either his juror questionnaire or during voir dire in petitioner‟s

trial, what were Ary‟s reasons for failing to disclose these facts? Was the

nondisclosure intentional and deliberate? Considering Ary‟s reasons for failing to

disclose these facts, was his nondisclosure of the above facts indicative of juror

bias? Was Ary biased against petitioner?”

Ary‟s testimony at the evidentiary hearing was essentially consistent with

the allegations in the petition for writ of habeas corpus and the district attorney‟s

investigation, as described in the return. Ary admitted that following his guilty

plea in 1982 to DUI, his punishment included participation in Alcoholics

Anonymous. He admitted he imbibed “socially at clubs or . . . at home,” but

claimed he had consumed only two beers during a five-hour party before being

arrested for DUI. He denied that abstinence from alcoholic beverages was a

condition of his probation following his 1964 felony conviction, and further

denied he had a problem with alcohol, explaining he answered “NO” to question

No. 61 because he interpreted the question as asking whether he was an alcoholic.

Ary also denied that any of his relatives were alcoholics or had a problem

with drugs. He knew his son Pervies Jr. had been arrested in the 1980s for selling

drugs, that it had “something to do with marijuana,” but he did not know whether

the crime involved cocaine. When asked whether he knew his son had been

sentenced to prison “in order to help rehabilitate himself from [drug] addiction,”

he replied, “No, I didn‟t know he was addicted.”7 Ary admitted that a person

7

In fact, as noted, ante, in 1986 Pervies Jr. pleaded guilty in two different

cases to marijuana- and cocaine-related offenses and was placed on probation on

(footnote continued on next page)

19




could be said to have a problem with drugs “if you are selling drugs instead of

making a decent living for yourself,” but then asserted that “[t]here was a

difference between having a problem and being involved with drugs or alcohol.

You can be a drug dealer and never touch the stuff.” Although he admitted he

knew his older son smoked marijuana, he said that he “wasn‟t around him that

much to say if he did have a problem . . . .”

The referee found that, as far as Ary knew, “he was answering [question

No. 61] accurately. He did not consider himself to have ever been an alcoholic.

While he did attend AA meetings, he was required to do so as a condition of DUI

probation. As for his son‟s addiction to and commitment for drugs, he wasn‟t

aware of that until some time after [petitioner‟s] trial. At the time of this trial, he

only knew of a drug-related arrest.” Because Ary believed he had answered

question No. 61 accurately, his nondisclosures were neither “intentional” nor

“indicative of juror bias,” and he was not, as a result, actually biased against

petitioner.

Petitioner raises exceptions to these findings, arguing generally that in light

of the inconsistencies between Ary‟s testimony, his interview with the district

attorney‟s investigator, and his pretrial declaration, he was not credible and the

referee‟s findings are thus not supported by substantial evidence. After

considering these inconsistencies, however, and presumably also considering

Ary‟s demeanor while testifying, the referee found him generally credible. Under

these circumstances, we defer to the referee‟s credibility determination.


(footnote continued from previous page)

condition of 360 days in jail. Following a 1987 guilty plea to sale of marijuana,
his sentence was suspended and he was sent to the California Rehabilitation
Center in Norco for treatment of his addiction to narcotics.

20




Petitioner identifies some specific inconsistencies. For example, when

asked at the evidentiary hearing where he had obtained his knowledge about

prison life, Ary revealed for the first time that he had four nephews by marriage—

his ex-wife‟s sister‟s children—all of whom had been involved in the illegal drug

trade in Los Angeles in the 1980s and who had been sentenced to lengthy prison

sentences for drug- or homicide-related offenses. But according to Ary, he had

been in touch with only one of these nephews prior to serving as a juror in

petitioner‟s case. And although petitioner contends Ary said he learned about

prison life from his son and then inconsistently said it was from his nephews, the

record in fact shows he denied learning about prison life from his son and instead

claimed he learned about an inmate‟s life in prison from his “previous marriage

nephews,” from “street talk,” and from “listening to what other people have

experienced.”

Although petitioner contends Ary “could find no credible explanation as to

why these relatives were not revealed in the questionnaire,” Ary in fact testified

that he “wasn‟t close to them as far as being around them to just, boom,

automatically think about them.” In other words, Ary did not consider these

people to be close relatives, and it did not occur to him to mention them in the

questionnaire. Despite petitioner‟s claims, Ary‟s explanation is not necessarily

inconsistent with his ability to remember certain conversations he had had about

prison life with one of his nephews. We conclude that in light of all the evidence,

including Ary‟s demeanor while testifying, the referee reasonably credited Ary‟s

explanation for his omissions in answering question No. 61 on the jury

questionnaire. Accordingly, we reject petitioner‟s exceptions and accept the

referee‟s findings.

21




4. Ary’s Revelation of Petitioner’s Prior Homicide During Jury

Deliberations

Petitioner alleged in his habeas corpus petition that Ary committed

misconduct by informing other jurors, during jury deliberations, that petitioner had

previously committed murder, although no evidence of a prior murder had been

introduced at trial. In support of the petition, petitioner submitted a declaration in

which Ary declares: “[The jury] discussed the fact that this may have been the

first murder for which Mr. Boyette had been caught but that he may have

committed previous murders. If we found second degree murder, when he got out

in seven years he would feel like he‟d gotten away with these killings and would

kill again.” This description of the deliberations is supported by the declaration of

Juror Lewis, which states: “[Ary] told me that during the trial, another alleged

murder was mentioned but the judge told us not to consider it. I didn‟t remember

the judge telling us this, but it stuck in the back of my mind after [Ary] told me.”

Respondent conceded the following facts were disputed and should be

referred to a referee: whether Ary made such comments, whether the comments

(if made) occurred during the guilt phase or the penalty phase deliberations, and

whether any juror changed his or her vote as a result of such information. We

thereafter asked the referee to answer these questions: “Did Juror Pervies Lee Ary

assert during jury deliberations that petitioner had previously committed

uncharged murders? If so, did this occur during deliberations at the guilt phase or

the penalty phase? Did other jurors discuss this topic as well?”

At the evidentiary hearing, Ary testified that the jurors “discussed the fact

that this may have been the first murder Mr. Boyette had been caught at. I don‟t

think we discussed what he had done in the past or what he might do again.”

Moreover, Ary said, “I don‟t know if he had committed a murder prior to this or

would he kill again. I don‟t know nothing about that . . . .” Asked whether he told

22




another juror during deliberations that petitioner “may have committed . . . another

murder,” Ary replied: “It could have been brought up. I don‟t recollect at this

particular time. It could have been stated, and it could have been said that he

would kill again. I don‟t remember.” Questioned about a passage in his

declaration where he suggested the jurors had discussed whether petitioner had

previously committed murder, Ary replied: “[M]aybe I did, maybe I didn‟t.

I don‟t know.”

By contrast, Juror Lewis testified that Ary (whom she knew as the tall,

African-American bus driver) told her during the penalty phase deliberations that

petitioner had committed previous uncharged murders, saying, “ „now you

remember, he did kill somebody else.‟ ” She averred the jurors had learned of the

other crime in court but were instructed by the trial judge not to consider it. She

was not sure the crime was a prior murder; it may have involved a shooting or

merely someone getting injured. Thus, she understood Ary‟s comment as

referring to that information and not a new fact injected into the deliberations by

Ary himself.

Other persons who served on petitioner‟s jury did not recall the subject of

uncharged murders coming up during deliberations, or suggested it concerned

something they had heard in court and were instructed not to consider.

The referee accepted Ary‟s testimony and found Ary “did not assert that

[p]etitioner had previously committed uncharged murders.” Only Juror Lewis

recalled such comments, and she was uncertain whether Ary had used the word

“kill,” but in any event she took his comments to refer to a different crime

mentioned in court. Other jurors recalled they had discussed whether petitioner

would kill again in prison, and the referee specifically found “Ms. Lewis has

confused the two subjects in her memory over time.”

23




Petitioner raises exceptions to the referee‟s conclusions, but once again he

merely disagrees with the referee‟s resolution of credibility issues. For example,

he contends it is “difficult to reconcile” the referee‟s findings with Juror Lewis‟s

testimony that Ary told her during deliberations that she should remember

petitioner “ „did kill somebody else.‟ ” Petitioner also emphasizes Ary‟s

somewhat testy responses when faced with his earlier inconsistent declaration on

the subject. But other jurors did not recall the comment about a prior murder, and

Ary testified he did not remember making the comment. Weighing this evidence,

the referee reasonably found Lewis had confused two different events in her mind,

i.e., she conflated mention in court of a past crime the trial court had instructed the

jury not to consider, with deliberations on the subject of whether petitioner would

kill again if sentenced to life in prison. Under the circumstances, we reject

petitioner‟s exceptions and instead defer to the referee‟s resolution of conflicting

testimony, including his conclusion that Ary did not inject any outside information

into the jury deliberations.

5. Ary’s Encouragement That Other Jurors Watch the Movie

American Me to Learn About Life in Prison

Petitioner alleged in his habeas corpus petition that Ary had urged the other

jurors to rent and watch the movie American Me (Olmos Productions, Universal

Pictures 1992). The movie allegedly depicts the violence associated with life in a

contemporary American prison and focuses especially on Hispanic prison gangs.

Petitioner alleged Ary had argued to his fellow jurors that death was the

appropriate penalty because petitioner, who was immature and tended to follow

strong leaders, would simply join a Black prison gang (such as the Black Guerrilla

Family) and continue his murderous ways if given a life sentence, a position that

echoed the prosecutor‟s closing argument. Petitioner further alleged two jurors

24




who were holding out for a life sentence watched the film and eventually changed

their vote to impose the death penalty.

Ary‟s declaration supported petitioner‟s allegations. He declared: “I told

the holdout jurors that if they wanted to understand what it was like in prison, they

should watch the movie American Me. That is based on a true story. [¶] Two of

the jurors rented the movie and watched it over the weekend. They finally

understood that Mr. Boyette could kill again in prison if he was not sentenced to

death. After they watched the movie, they changed their votes to death.”

Respondent conceded the following facts were in dispute: “which jurors

actually watched the movie during deliberations, which jurors had already seen the

movie before the trial commenced, and whether any of them changed their

decision as a result.” We thereafter directed the referee to answer these questions:

“Did Juror Pervies Lee Ary urge other jurors, during jury deliberations, to watch

the movie American Me in order to learn about the nature of a prisoner‟s life in

prison? Did any juror actually watch the movie at any time during petitioner‟s

trial or jury deliberations?”

The evidence adduced at the evidentiary hearing confirmed many of the

allegations in the habeas corpus petition and the supporting declarations.

Although some jurors had no recollection of any discussion about watching a

movie, Ary himself testified that two female jurors “were so naive about street

life” they took the position that life in prison was an adequate punishment because

petitioner “will never hurt anyone as long as he is in the penitentiary for life.

[¶] I said you just don‟t know anything about prison life. I said you two go to

Blockbuster and get the movie „American Me.‟ Sit down and look at it. It will

explain penitentiary life to you, and you will see what a person can do while he is

in the penitentiary.” Jurors Britton, Mann, Orgain and Perez corroborated this

evidence, confirming that Ary and other jurors had urged jurors to watch the

25




movie. Although Ary testified that his advice was directed at two “naive” female

jurors, Juror McClaren recalled that the advice to watch the movie was directed at

three or four jurors who were still undecided. Juror Perez had already seen the

movie American Me before being chosen as a juror and recalled that other jurors

had too.8

Juror McClaren admitted she watched the movie American Me during a

break in jury deliberations, and Juror Rennie testified she had watched part of the

movie.

The referee concluded that “Ary, along with one or more other jurors, did

urge two holdout jurors to watch the movie American Me in order to learn more

about the nature of a prisoner‟s life in prison.” Moreover, “[t]wo jurors— . . .

McLaren [sic] and . . . Rennie—did watch the movie during the penalty phase

deliberations.” Although petitioner has filed exceptions to these findings, he

essentially accepts the referee‟s conclusions, as they are in his favor.

II. DISCUSSION

Our referee, acting as “an impartial fact finder for this court” (In re Scott

(2003) 29 Cal.4th 783, 818), has determined the facts of the case. “The referee‟s

factual findings are not binding on us, and we can depart from them upon

independent examination of the record even when the evidence is conflicting.

[Citations.] However, such findings are entitled to great weight where supported

by substantial evidence.” (In re Hamilton (1999) 20 Cal.4th 273, 296.) As

explained, we reject petitioner‟s exceptions to the referee‟s report and instead

accept the referee‟s findings—and accord them great weight—because they are


8

American Me was released in theaters in the United States on March 13,

1992. (< http://www.imdb.com/title/tt0103671/releaseinfo?ref_=tt_ql_9> (as of
May 30, 2013).) Petitioner‟s trial was held in March 1993.

26




supported by substantial evidence, primarily in the form of credibility

determinations of the witnesses. (In re Hardy, supra, 41 Cal.4th at p. 993;

Hamilton, at p. 296.) We now turn to the first three of petitioner‟s claims in our

order to show cause, which in fact comprise a single legal question: Is petitioner

entitled to relief due to a juror‟s failure to make certain disclosures on voir dire?9

A. Concealment

We addressed the question of juror concealment at length in In re Hitchings

(1993) 6 Cal.4th 97: “We begin with the general proposition that one accused of a

crime has a constitutional right to a trial by impartial jurors. (U.S. Const., 6th and

14th Amends.; Cal. Const., art. I, § 16; . . .) „ “The right to unbiased and

unprejudiced jurors is an inseparable and inalienable part of the right to trial by

jury guaranteed by the Constitution.” ‟ [Citation.]

“The impartiality of prospective jurors is explored at the preliminary

proceeding known as voir dire. „Voir dire plays a critical function in assuring the

criminal defendant that his Sixth Amendment right to an impartial jury will be

honored. Without an adequate voir dire the trial judge‟s responsibility to remove


9

The issue in this case concerns Juror Ary‟s failure to disclose information

during voir dire, not petitioner‟s right to a jury composed of 12 eligible persons.
Article VII, section 8, subdivision (b) of the California Constitution provides in
part that “[l]aws shall be made to exclude persons convicted of bribery, perjury,
forgery, malfeasance in office, or other high crimes from office or serving on
juries
.” (Italics added.) The Legislature complied with this directive, enacting
Code of Civil Procedure section 203, which provides in part: “(a) All persons are
eligible and qualified to be prospective trial jurors, except the following: [¶] . . .
[¶] (5) Persons who have been convicted of malfeasance in office or a felony, and
whose civil rights have not been restored.” (Italics added.) But “[t]he Sixth
Amendment does not bar ex-felons from jury service” (Coleman v. Calderon (9th
Cir. 1998) 150 F.3d 1105, 1117), and state law (i.e., Code. Civ. Proc., § 203) did
not “create a liberty interest protected by the Due Process Clause of the Fourteenth
Amendment” in having a jury composed of nonfelons (Coleman, at p. 1117).

27




prospective jurors who will not be able impartially to follow the court‟s

instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly,

lack of adequate voir dire impairs the defendant‟s right to exercise peremptory

challenges where provided by statute or rule . . . .‟ [Citation.]

“The ability of a defendant, either personally, through counsel, or by the

court, to examine the prospective jurors during voir dire is thus significant in

protecting the defendant‟s right to an impartial jury. Of course, the efficacy of

voir dire is dependent on prospective jurors answering truthfully when questioned.

As the United States Supreme Court has stated, „Voir dire examination serves to

protect [a criminal defendant‟s right to a fair trial] by exposing possible biases,

both known and unknown, on the part of potential jurors. Demonstrated bias in

the responses to questions on voir dire may result in a juror‟s being excused for

cause; hints of bias not sufficient to warrant challenge for cause may assist parties

in exercising their peremptory challenges. The necessity of truthful answers by

prospective jurors if this process is to serve its purpose is obvious.‟ [Citation.]

“A juror who conceals relevant facts or gives false answers during the voir

dire examination thus undermines the jury selection process and commits

misconduct. [Citations.]

“Without truthful answers on voir dire, the unquestioned right to challenge

a prospective juror for cause is rendered nugatory. Just as a trial court‟s improper

restriction of voir dire can undermine a party‟s ability to determine whether a

prospective juror falls within one of the statutory categories permitting a challenge

for cause [citations], a prospective juror‟s false answers on voir dire can also

prevent the parties from intelligently exercising their statutory right to challenge a

prospective juror for cause.

“Such false answers or concealment on voir dire also eviscerate a party‟s

statutory right to exercise a peremptory challenge and remove a prospective juror

28




the party believes cannot be fair and impartial. We have recognized that „the

peremptory challenge is a critical safeguard of the right to a fair trial before an

impartial jury.‟ [Citation.] As explained by the Court of Appeal, „[j]uror

concealment, regardless whether intentional, to questions bearing a substantial

likelihood of uncovering a strong potential of juror bias, undermines the

peremptory challenge process just as effectively as improper judicial restrictions

upon the exercise of voir dire by trial counsel seeking knowledge to intelligently

exercise peremptory challenges.‟ [Citations.] „The denial of the right to

reasonably exercise a peremptory challenge, be it by either the trial court or a

juror through concealing material facts, is not a mere matter of procedure, but the

deprivation of an absolute and substantial right historically designed as one of the

chief safeguards of a defendant against an unlawful conviction.‟ ” (In re

Hitchings, supra, 6 Cal.4th at pp. 110-112, fn. omitted.) We have since cited

Hitchings with approval. (In re Hamilton, supra, 20 Cal.4th at p. 295; People v.

Majors (1998) 18 Cal.4th 385, 417.)

The jury questionnaire asked Ary to disclose his own criminal history, that

of relatives and friends, and whether he or a relative had a problem with alcohol or

drugs. As is now apparent, he failed to disclose information relevant to all three of

these topics. Trial counsel declared that, had he learned of this evidence, he would

have exercised a peremptory challenge to remove Ary from the jury. Although

juror misconduct raises a presumption of prejudice (In re Hamilton, supra, 20

Cal.4th at p. 295; People v. Nesler (1997) 16 Cal.4th 561, 578), we determine

whether an individual verdict must be reversed for jury misconduct by applying a

substantial likelihood test. That is, the “presumption of prejudice is rebutted, and

the verdict will not be disturbed, if the entire record in the particular case,

including the nature of the misconduct or other event, and the surrounding

circumstances, indicates there is no reasonable probability of prejudice, i.e., no

29




substantial likelihood that one or more jurors were actually biased against the

defendant.” (Hamilton, at p. 296.) In other words, the test asks not whether the

juror would have been stricken by one of the parties, but whether the juror‟s

concealment (or nondisclosure) evidences bias.

On this record, and considering the totality of the circumstances, we

conclude Ary was not a biased juror. As the referee found, some of Ary‟s

omissions from the questionnaire were based on a dubious interpretation of the

relevant question, but his interpretation—though erroneous and unreasonable—

was sincerely held. For other omissions, Ary simply did not recall, for example, a

distant relative. We have held that “good faith when answering voir dire questions

is the most significant indicator that there was no bias” (In re Hamilton, supra, 20

Cal.4th at p. 300) and “an honest mistake on voir dire cannot disturb a judgment in

the absence of proof that the juror‟s wrong or incomplete answer hid the juror‟s

actual bias” (ibid.). Here, the referee‟s finding that Ary‟s failures to disclose were

neither intentional nor deliberate supplies sufficient support for the ultimate

conclusion that Ary was not biased against petitioner. There being “no substantial

likelihood” that Ary was “actually biased against” petitioner (id. at p. 296),

petitioner is not entitled to relief on this ground.

B. Reliance on Out-of-court Information

The final two claims both concern the jury‟s alleged use of out-of-court

information when deliberating the question of the proper penalty to impose. We

set forth the applicable law in People v. Nesler, supra, 16 Cal.4th at pages 578-

579: “ „The requirement that a jury‟s verdict “must be based upon the evidence

developed at the trial” goes to the fundamental integrity of all that is embraced in

the constitutional concept of trial by jury. . . . [¶] In the constitutional sense, trial

by jury in a criminal case necessarily implies at the very least that the “evidence

30




developed” against a defendant shall come from the witness stand in a public

courtroom where there is full judicial protection of the defendant‟s right of

confrontation, of cross-examination, and of counsel.‟ [Citation.] As the United

States Supreme Court has explained: „Due process means a jury capable and

willing to decide the case solely on the evidence before it . . . .‟ [Citations.]

“We assess the effect of out-of-court information upon the jury in the

following manner. When juror misconduct involves the receipt of information

about a party or the case from extraneous sources, the verdict will be set aside only

if there appears a substantial likelihood of juror bias. [Citation.] Such bias may

appear in either of two ways: (1) if the extraneous material, judged objectively, is

so prejudicial in and of itself that it is inherently and substantially likely to have

influenced a juror; or (2) even if the information is not „inherently‟ prejudicial, if,

from the nature of the misconduct and the surrounding circumstances, the court

determines that it is substantially likely a juror was „actually biased‟ against the

defendant. If we find a substantial likelihood that a juror was actually biased, we

must set aside the verdict, no matter how convinced we might be that an unbiased

jury would have reached the same verdict, because a biased adjudicator is one of

the few structural trial defects that compel reversal without application of a

harmless error standard.”

The first claim is that Ary committed misconduct by introducing into the

jury deliberations information that petitioner had previously committed an

uncharged murder. Whether Ary in fact did so was disputed, and after holding a

hearing on the issue, the referee concluded that “Ary did not assert that Petitioner

had previously committed uncharged murders” (italics added) and the contrary

evidence from Juror Lewis was the result of her having “confused . . . two subjects

in her memory over time.” Under the circumstances, we conclude no substantial

likelihood of bias exists. (People v. Nesler, supra, 16 Cal.4th at pp. 578-579.)

31




The second claim involved Ary‟s recommendation to the undecided jurors

that they should watch the movie American Me during a break in the penalty

phase deliberations to educate themselves about the realities of life in prison. The

habeas corpus petition frames the issue as one of juror misconduct by Ary that was

indicative of his bias.10 After considering whether Ary‟s encouraging other jurors

to watch a movie—standing alone—could be considered prejudicial misconduct

had no juror complied with his suggestion, and considering the facts, as alleged,

that Juror Rennie and possibly one other juror in fact watched the movie, our order

to show cause focused not on Ary‟s actions but on the jurors who watched the

movie. Thus, our order stated in pertinent part: “The Director of Corrections is

ordered to show cause before this court . . . why the relief prayed for should not be

granted on the grounds that: . . . Juror . . . Rennie and one other juror, at the

urging of Juror Ary, during the pendency of the jury deliberations, rented and

watched a videotape of the movie American Me in order to gather background

information for the trial.” Our order to the referee was similarly focused.

As noted, the facts adduced at the evidentiary hearing generally supported

petitioner‟s allegations: the referee found that “Ary, along with one or more other

jurors,” urged other jurors to watch American Me, and that Jurors McClaren and

Rennie in fact watched the movie during the penalty phase deliberations. In doing

so, these two jurors committed misconduct.

The trial court instructed the jury at the penalty phase with CALJIC No.

1.03, as follows: “You must decide all questions of fact in this case from the

10

At least one other juror probably encouraged other jurors to watch the

movie as well. Juror Perez testified at the evidentiary hearing that she had seen
the movie American Me before being chosen as a juror in petitioner‟s trial, and
that “knowing my personality, I believe I may have” encouraged other jurors to
watch it.

32




evidence received in this trial and not from any other source. You must not make

any independent investigation of the facts or the law or consider or discuss facts as

to which there is no evidence. [¶] This means for example, that you must not on

your own visit the scene, conduct experiments, or consult reference works or

persons for additional information.” (Italics added.) Although merely to have

watched a television show or movie that involved a topic or theme relevant to the

subject of a trial is not necessarily misconduct for a sitting juror (People v. Melton

(1988) 44 Cal.3d 713, 749 [jurors in a capital case may have watched a television

broadcast of The Executioner‟s Song]; Elsworth v. Beech Aircraft Corp. (1984)

37 Cal.3d 540, 556 [jurors in a wrongful death trial involving a light airplane crash

watched a 60 Minutes television broadcast criticizing the safety record of such

aircraft]), to “deliberately set out to discover information regarding the issues at

the trial” (Elsworth, at p. 557) is a different matter. That a juror would watch a

movie referred to by other jurors so as to know “what they were talking about”

may be natural, but it is clear misconduct in disregard of the court‟s instructions

not to consider any evidence outside that presented in court. As such, it 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.‟ ” (People v. Gamache (2010) 48 Cal.4th

347, 397.)

In light of the referee‟s factual findings, respondent concedes the jurors

who watched the movie committed misconduct, but argues no prejudice resulted.

Did watching American Me and considering the information about prison life

contained in the movie establish “a substantial likelihood of juror bias”? (People

v. Nesler, supra, 16 Cal.4th at p. 578.) As we explain, we conclude in the

negative.

33




At the outset, we find the information Jurors Rennie and McClaren may

have acquired from outside the record (i.e., the contents of the movie American

Me) is not the sort of evidence falling within Nesler‟s first category, i.e., evidence

that, “judged objectively, is so prejudicial in and of itself that it is inherently and

substantially likely to have influenced a juror.” (People v. Nesler, supra, 16

Cal.4th at pp. 578-579, italics added.) The information, for example, was not of a

suppressed confession or evidence of other crimes that the trial court had excluded

as too prejudicial. (See, e.g., People v. Holloway (1990) 50 Cal.3d 1098, 1110

[“The content of the article was extremely prejudicial; it revealed information

about defendant‟s prior criminal conduct that the court had ruled inadmissible

because of its potential for prejudice.”]; People v. Andrews (1983) 149 Cal.App.3d

358 [presumption of prejudice was not rebutted where the jury was inadvertently

informed that a codefendant had pleaded guilty to charges stemming from the

same crime].) It was not akin to a bell that could not be unrung.

Here, the movie Jurors McClaren and Rennie watched was one that two

other jurors (Ary, Perez), and possibly more, had already seen within the last year.

The most that can be said, therefore, is that McClaren and Rennie may have

learned some general information about prison life that some of the other jurors

already knew—and referenced during deliberations—from having seen the movie

themselves before the trial. (See People v. Yeoman (2003) 31 Cal.4th 93, 162

[“ „[j]urors cannot be expected to shed their backgrounds and experiences at the

door of the deliberation room.‟ ”].) Indeed, had those other jurors simply told

Jurors McClaren and Rennie what they had learned from American Me and not

suggested the two watch the movie, no issue of misconduct or prejudice would

have arisen. The movie, and the information contained therein, was thus not

inherently prejudicial within the meaning of Nesler‟s first category. (People v.

Nesler, supra, 16 Cal.4th at pp. 578-579.)

34




Turning to Nesler‟s second category, reversal would be required if the

record shows that “from the nature of the misconduct and the surrounding

circumstances, . . . it is substantially likely a juror was „actually biased‟ against”

petitioner. (People v. Nesler, supra, 16 Cal.4th at p. 579.) In other words, did the

jurors here improperly acquire information that, under the circumstances of this

particular case, rendered them biased against petitioner? As we explain, a

consideration of the testimony of jurors at the reference hearing and reasonable

inferences therefrom persuade us that no substantial likelihood of bias arose and

that any presumption of prejudice is rebutted by the record.

The movie the jurors watched, American Me, had been the subject of

discussion during penalty phase deliberations in connection with the point asserted

by jurors favoring the death penalty that an incarcerated prisoner could still

commit crimes. Although some of the jurors, including Ary, had seen the film

before trial, some of the undecided jurors had not; Ary urged them to do so,

maintaining it would illustrate the point that an incarcerated defendant could still

commit crimes. Two of the undecided jurors, McClaren and Rennie, each rented

the movie; McClaren watched the entire film, Rennie watched only part of it. The

following morning the jurors resumed deliberations. Within 30 minutes, the jury

foreperson informed the trial court the jury had reached a verdict.

Evidence of a juror‟s mental process—how the juror reached a particular

verdict, the effect of evidence or argument on the juror‟s decisionmaking—is

inadmissible. (Evid. Code, § 1150, subd. (a).) Hence, in determining whether

there is a substantial likelihood the jurors‟ misconduct caused them to become

biased against petitioner, we look to what the jurors said about their viewing of the

film, and what discussion of the film, if any, took place when the jury resumed

deliberations the following morning.

35




Ary testified that upon resuming their deliberations “something” was said

about the movie, but the jurors did not specifically discuss it, suggesting the movie

was not a significant, if any, part of the deliberations. Juror Salcedo corroborated

this version of events, testifying that upon resumption of deliberations after the

weekend, she “wasn‟t aware of anyone that watched the movie,” suggesting there

was no discussion about it.

Juror McClaren, who admitted to having watched the movie, explained that

she was not in a “camp” holding out for a life sentence, but simply “needed more

information. I needed more time to make a decision.” When asked about her

recollection of American Me, she did not say that it opened her eyes about life in

prison, that she had learned about prison gangs or the Black Guerilla Family or

violence in prison, or that it showed how life prisoners could kill within the prison

walls. Instead, she replied simply “that it‟s a prison movie, and it talked about

how they contact the people on the outside and could—I don‟t know. I don‟t

recall a lot of that now either.” Although the referee directed McClaren to

describe the movie in six words or less, her limited response does not appear to

have been a result of that directive; rather, she stated that “I don‟t recall a lot”

about the movie. Her testimony suggests the movie did not make a strong

impression on her, as one would expect had it motivated her vote.11

Similarly, Juror Rennie testified that she watched part of American Me,

“[m]aybe 45 minutes.” Describing her recollection of the movie, she said “it was

11

Although the concurring and dissenting opinion suggests that Juror

McClaren‟s failure to recall details of the movie “proves little” because the
hearing was held 17 years after the penalty phase deliberations (conc. & dis. opn.,
post, at p. 7), the juror‟s recall seemed no sharper when she mentioned the incident
in her 1999 declaration, just six years after the trial. Juror Rennie executed her
declaration in 2000 and likewise provided only the barest of details when asked to
recall the movie.

36




rather repetitious. I kind of just wanted to get an idea on what people had been

talking about.” Upon resuming deliberations the next day, she “eventually” voted

for death, although she suggested her change of heart did not happen right away,

noting that she changed her vote “at some point.” Rennie recalled that “several

people voiced concern” that petitioner might kill again if given a life sentence, but

she did not remember any discussion about the movie when deliberations resumed,

saying that “no one asked anyone if they watched the movie or not, or—and we

didn‟t bring up the subject, and it was just, you know, then continuing on.” Like

McClaren‟s testimony, Rennie‟s testimony suggests the movie‟s content or

message was of little importance to her.

Juror Lewis, who denied watching the movie, had initially been in favor of

a life sentence but eventually changed her vote. She testified that the life-leaning

(or undecided) jurors did not change their minds and vote for death all at once, but

did so “[o]ne by one,” thus suggesting the persuasive effect of watching American

Me was minimal.

That Jurors McClaren and Rennie watched some or all of the movie during

deliberations suggests they were thinking about the issue they faced and the

arguments their fellow jurors had made, but does not in these circumstances

establish a causal relationship between the movie and the verdict. Rather, from

the foregoing testimony we can infer the movie had no significant impact on either

juror. Had it been significant, we could reasonably presume one or both, having

been urged to watch it or having been persuaded by it, would have mentioned that

fact to the others who had seen the film when they cast their vote for the death

penalty. Neither did. And their testimony at the reference hearing confirmed the

film did not have a transformative effect on their decision. Juror Lewis, who had

also been undecided about the appropriate penalty but did not watch the film,

similarly reached a conclusion favoring death upon resumed deliberations the next

37




morning. The evidence, therefore, simply illustrates the unremarkable fact that

reflection on the facts of the case and the arguments of fellow jurors, together with

the passage of time, will prompt a decision.

The film, significantly, imparted to Jurors McClaren and Rennie no new

information about prison life not already possessed by the other jurors who had

previously seen the film, information those jurors had already conveyed to

McClaren and Rennie during deliberations. In short, McClaren and Rennie

learned nothing in viewing the film they had not already been told; they merely

acquired information the other jurors already had. That they sought out the film

does not transform evidence of negligible impact into evidence showing

substantial bias.

The sequence of events is the one circumstance suggesting a substantial

likelihood of bias, but in the circumstances here it is not determinative. According

to testimony at the evidentiary hearing, during the first full day of deliberations

nine jurors concluded death was the appropriate penalty, while at least three jurors

(McClaren, Rennie and Lewis) did not decide in favor of death until the next

morning.12 The two jurors (McClaren and Rennie) who watched the movie

proclaimed they had been merely undecided rather than “life-leaning.” According

to Juror McClaren, she “wasn‟t not in the camp” voting for the death penalty

(italics added); she simply had not yet made up her mind. Juror Rennie testified

that there was some division about the appropriate penalty and she remembered

saying that “it‟s harder for me . . . to come to a conclusion about a sentence,” but

she did not identify herself as favoring a life sentence. Juror Lewis, who did not


12

Ary testified at the evidentiary hearing that the vote on the first day of

deliberations was 10 to two in favor of the death penalty, but in fact three jurors
testified they had been undecided until the next day.

38




view the movie, testified that she had been voting against the death penalty but

changed her vote at the end. These facts suggest the case was not a difficult one in

which to conclude the death penalty was appropriate, and that Jurors McClaren

and Rennie (as well as Lewis) were simply undecided for a little longer than their

fellow jurors. Although one might speculate from the bare sequence of events that

watching the movie convinced McClaren and Rennie to vote for the death penalty,

their testimony suggests otherwise. That Juror Lewis, who initially leaned toward

a life sentence and did not watch the movie, also changed her position within a

half-hour of resumed deliberations highlights the speculative nature of inferring

bias solely from the timeline of events.

We are similarly unpersuaded by petitioner‟s further contention that the

movie‟s content or message was particularly prejudicial because it dovetailed with

the prosecution‟s argument regarding petitioner‟s potential future dangerousness,

i.e., that petitioner would kill again in prison if given a life term. Some

background is necessary to understand this claim: In presenting his case in

mitigation at the penalty phase, petitioner called an expert witness who testified

that petitioner suffered from a dependent personality disorder and that he was

easily led by persons with stronger, more assertive personalities. This evidence

suggested petitioner‟s crimes—killing Carter and Devallier—were less morally

culpable because petitioner was under the sway of Johnson, a drug dealer. When

making her closing argument at the penalty phase, the prosecutor attempted to

blunt this evidence by suggesting that petitioner, if sentenced to a life term, might

simply fall under the influence of another strong personality, join a gang in prison,

resume his role as an enforcer, and kill again. The prosecutor‟s argument

specifically referenced the Black Guerilla Family prison gang. Petitioner contends

the message of the film American Me lent support to the prosecutor‟s argument

because “[o]ne of the central points of the film maker in American Me is that a

39




weak, easily led person who goes into prison will, whether he wants to or not, be

forced to become part of a gang and do the gang[‟s] bidding which includes

murder. Moreover, the film depicts itself as being „a true story‟ and includes as

one of the two primary prison gangs depicted, the Black Guerilla Family—the

same prison gang named by the prosecutor.”

Although the movie may have been consistent with the prosecutor‟s

argument that someone like petitioner could continue his violent life of crime in

prison, the record shows the movie did not introduce any new facts or ideas into

the jury room. A number of jurors had seen the movie before the trial and had

argued at length during deliberations that petitioner would join a gang in prison

and continue to commit crimes. That the information contained in the movie was

already before the jury diminishes the potential prejudicial impact of the

misconduct despite its consistency with the prosecutor‟s closing argument.

The “nature of the misconduct and the surrounding circumstances” (People

v. Nesler, supra, 16 Cal.4th at p. 579) thus fails to suggest the movie was an

important factor in convincing Jurors McClaren and Rennie to change their minds

and vote to impose the death penalty. On this record, we conclude petitioner has

not demonstrated a “substantial likelihood that one or more jurors were actually

biased” against petitioner. (In re Hamilton, supra, 20 Cal.4th at p. 296.) This

“standard is a pragmatic one, mindful of the „day-to-day realities of courtroom

life‟ [citation] and of society‟s strong competing interest in the stability of criminal

verdicts [citations]. It is „virtually impossible to shield jurors from every contact

or influence that might theoretically affect their vote.‟ [Citation.] Moreover, the

jury is a „fundamentally human‟ institution; the unavoidable fact that jurors bring

diverse backgrounds, philosophies, and personalities into the jury room is both the

strength and the weakness of the institution. [Citation.] „[T]he criminal justice

system must not be rendered impotent in quest of an ever-elusive perfection. . . .

40




[Jurors] are imbued with human frailties as well as virtues. If the system is to

function at all, we must tolerate a certain amount of imperfection short of actual

bias.‟ ” (Ibid.)

Finally, we reject petitioner‟s contention that the cumulative impact of

Ary‟s multiple failures to disclose information on voir dire, coupled with Jurors

McClaren and Rennie having watched the movie American Me, violated his right

under the state and federal Constitutions to a trial by impartial jurors. Having

concluded Ary‟s omissions did not demonstrate bias, and having found the record

rebuts the presumption of prejudice that arose from McClaren‟s and Rennie‟s

misconduct, the cumulative impact of these events does not convince us

petitioner‟s jury lacked impartiality.

III. CONCLUSION

Because our order to show cause and reference order were limited to the

jury misconduct claims, we do not here address any other claim set forth in the

petition for writ of habeas corpus, which will be resolved by a separately filed

order.

The order to show cause is discharged.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.


41












CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.




The movie American Me1 stars Edward James Olmos as a young man who

is incarcerated and joins a prison gang, which he leads in a violent struggle over

drug turf. It is a raw, violent depiction of the American prison system, with

multiple scenes of stabbing and sexual assault.

It is this movie that two undecided jurors watched during a break in

deliberations, at the urging of the jury foreman and other jurors voting for the

death penalty. There is no dispute that these two jurors committed misconduct by

actively seeking out information not presented at trial. There is no dispute that the

jury did not reach a verdict after a full day of deliberations. The next day, after

these two jurors watched the film, the jury deliberated for only 30 minutes before

returning a death verdict. In light of this chronology, I disagree with the

majority‟s conclusion that the presumption of prejudice arising from the jurors‟

misconduct has been rebutted. The record as a whole demonstrates a substantial

likelihood these two jurors were actually biased in that they were influenced to

impose the death penalty based on external information they intentionally acquired

in violation of their oath.


1

Olmos Productions, Universal Pictures 1992.

1



The misconduct must be considered in context. The prosecutor argued

against life without the possibility of parole because defendant could join a prison

gang and kill again while incarcerated. In urging undecided Jurors McClaren and

Rennie to watch American Me, Foreman Ary took up the prosecutor‟s theme. He

explained at the evidentiary hearing: “The two jurors, which [were] the two young

ladies, they were so naive about street life until they were so determined that he

couldn‟t harm no one while he was in prison for the rest of his life, and we

discussed this, we deliberated and discussed it . . . . We have to do something

about this because it‟s been deliberated too long, so I asked these two young

ladies, . . . but these two said he will never hurt anyone as long as he is in the

penitentiary for life. [¶] I said you just don‟t know anything about prison life. I

said you two go to Blockbuster and get the movie „American Me.‟ Sit down and

look at it. It will explain penitentiary life to you, and you will see what a person

can do while he is in the penitentiary.” Ary told them the movie was based on a

true story.

“When juror misconduct involves the receipt of information about a party

or the case from extraneous sources, the verdict will be set aside only if there

appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in

either of two ways: (1) if the extraneous material, judged objectively, is so

prejudicial in and of itself that it is inherently and substantially likely to have

influenced a juror; or (2) even if the information is not „inherently‟ prejudicial, if,

from the nature of the misconduct and the surrounding circumstances, the court

determines that it is substantially likely a juror was „actually biased‟ against the

defendant. If we find a substantial likelihood that a juror was actually biased, we

must set aside the verdict, no matter how convinced we might be that an unbiased

jury would have reached the same verdict, because a biased adjudicator is one of

the few structural trial defects that compel reversal without application of a

2



harmless error standard.” (People v. Nesler (1997) 16 Cal.4th 561, 578-579

(Nesler); In re Carpenter (1995) 9 Cal.4th 634, 653.)

“Actual bias” in this context does not mean that a juror must dislike the

defendant or harbor a desire to treat him unfairly. Rather, “[t]he Sixth

Amendment right to an impartial jury and the due process right to a fundamentally

fair trial guarantee to criminal defendants a trial in which jurors set aside

preconceptions, disregard extrajudicial influences, and decide guilt or innocence

„based on the evidence presented in court.‟ [Citations.]” (Skilling v. United States

(2010) 561 U.S. __ [130 S.Ct. 2896, 2948]; see Irvin v. Dowd (1961) 366 U.S.

717, 723; People v. Leonard (2007) 40 Cal.4th 1370, 1414.) “An impartial juror is

someone „capable and willing to decide the case solely on the evidence‟ presented

at trial,” and “[t]he term „actual bias‟ may include a state of mind resulting from a

juror‟s actually being influenced by extraneous information about a party.”

(Nesler, supra, 16 Cal.4th at p. 581.) “Juror misconduct involving the receipt of

extraneous information about a party or the case that was not part of the evidence

received at trial creates a presumption that the defendant was prejudiced by the

evidence and may establish juror bias.” (People v. Ramos (2004) 34 Cal.4th 494,

519.)

As the majority acknowledges, Jurors McClaren and Rennie committed

“clear misconduct” (maj. opn., ante, at p. 33) that raised a presumption of

prejudice. Even assuming the movie did not fall within the category of inherently

prejudicial material, the present record fails to rebut the presumption of bias.

Indeed, the record shows a substantial likelihood that these two jurors were

actually biased against defendant in that they relied on the extraneous material to

his detriment.

The timeline of deliberations provides strong evidence of the movie‟s

influence on these two jurors. The jury began penalty phase deliberations on

3



Tuesday, March 23, 19932 at 2:51 p.m. and adjourned nine minutes later at 3:00

p.m. The jury deliberated all day on Wednesday. They resumed deliberations on

Thursday at 9:40 a.m. and returned with a death verdict at 10:10 a.m., 30 minutes

later.

After a full day of deliberations, McClaren and Rennie remained

undecided. That evening, both jurors independently obtained the movie and

watched at least part of it. The next day, with little or no discussion of the film,

the jury rendered a death verdict within 30 minutes. Given the brevity of

deliberations on Thursday, the most reasonable inference is that the movie

influenced McClaren and Rennie to vote for death. Indeed, McClaren testified

that she was not a “holdout” juror but “simply needed more information” before

rendering a verdict. The only “information” she obtained between deliberations

on Wednesday and Thursday was the movie. “The foregoing evidence

demonstrates that [their] misconduct was substantially related to important matters

raised during trial.” (Nesler, supra, 16 Cal.4th at p. 585.)

Eight of the nine penalty phase jurors who testified at the evidentiary

hearing confirmed that the jury discussed the movie during deliberations.

Foreman Ary encouraged these “naive” jurors to watch the film because

deliberations had gone on “too long.” Juror Britton confirmed this account. Juror

Perez likewise remembered that two undecided jurors had been encouraged to

watch the movie. McClaren herself admitted she was encouraged to watch the

movie to see “what life would be like in prison.” Based upon the timeline of

deliberations, there is little doubt that these events occurred on the only full day of

deliberations, Wednesday, March 24. The majority does not suggest otherwise.


2

Subsequent date references will be to the year 1993.

4



McClaren testified that she voted for death after seeing the movie. Britton and

Perez confirmed that the vote had been 10 to two in favor of the death penalty

before McClaren and Rennie saw the film and the vote was unanimous for death

thereafter. Ary testified the two jurors voted for death “right after they saw the

movie.” Rennie testified there was no further discussion of the movie after she

had viewed it.

It should be remembered that American Me was hardly an evenhanded

documentary about prison life. Its central theme was that prison is a breeding

ground for criminal activity. The pro-death jurors here urged watching the film

precisely because it made their point, that convicts can continue to kill and commit

other crimes while incarcerated. If McClaren and Rennie accepted the film as

accurate, their viewing could only have been detrimental to the defense case.

The majority suggests that the timeline did not “establish a causal

relationship between the movie and the verdict.” (Maj. opn., ante, at p. 37.)

Noting that Juror Lewis, who did not watch the movie, had also been undecided

but eventually voted for death, the majority asserts that “[t]he evidence, therefore,

simply illustrates the unremarkable fact that reflection on the facts of the case and

the arguments of fellow jurors, together with the passage of time, will prompt a

decision.” (Ibid.) That fact is unremarkable, but we cannot say that is what

happened for McClaren and Rennie. The assertion also fails to take into account

the relevant standard. McClaren and Rennie‟s conduct raises a presumption of

prejudice. “The rationale for the presumption is venerable. „A juror is not

allowed to say: “I acknowledge to grave misconduct. I received evidence without

the presence of the court, but those matters had no influence upon my mind when

casting my vote in the jury-room.” The law, in its wisdom, does not allow a juror

to purge himself in that way.‟ [Citations.] When a person violates his oath as a

juror, doubt is cast on that person‟s ability to otherwise perform his duties.

5



[Citation.] The presumption of prejudice is appropriate in those situations.”

(People v. Cooper (1991) 53 Cal.3d 771, 835-836.)

This court cannot do for a juror what she cannot do for herself: simply

disavow the misconduct. In “reflect[ing] on the facts of the case and the

arguments of fellow jurors” (maj. opn., ante, at p. 38), there is no dispute that

McClaren and Rennie watched a movie about prison gangs. The primary theme of

the film is that prison is a breeding ground for criminal activity. After remaining

undecided for a full day of deliberations, these two jurors returned the following

day and voted for death within 30 minutes. That Juror Lewis, a juror who did not

commit misconduct, also voted for death after initial indecision is beside the point.

Might McClaren and Rennie have rendered the same verdict had they not seen the

movie? Did these jurors actually rely solely upon evidence admitted at trial? We

can but speculate. Yet speculation cannot rebut the presumption of prejudice that

their misconduct raised.

The majority also suggests that the movie might not have affected the two

undecided jurors because it introduced “no new information about prison life not

already possessed by the other jurors who had previously seen the film,

information those jurors had already conveyed to McClaren and Rennie during

deliberations.” (Maj. opn., ante, at p. 38.) Far from rebutting the presumption of

prejudice, these facts support it. The accounts of Foreman Ary and Juror Britton

confirm that, even though the film‟s concepts were discussed at length, Jurors

McClaren and Rennie remained unpersuaded. Mere verbal descriptions of the

movie and the prosecutor‟s argument failed to persuade these jurors to vote for

death. This explains why Ary, in order to break the deadlock, suggested the

undecided jurors watch the movie, and why he emphasized it was based upon a

true story. The film would graphically illustrate the point the pro-death jurors had

failed to convey through mere words.

6



Moreover, the active nature of the jurors‟ misconduct provides insight into

the film‟s potential influence on them. Jurors McClaren and Rennie each went to

Blockbuster, rented the film, and watched it. That they devoted such time to

acquiring this extraneous information reflects that they believed it was important

to consider in deciding upon a penalty. The jury‟s speedy verdict after the film

was viewed bolsters the conclusion that the film likely influenced the outcome.

The majority reasons the movie could not have had much impact on Jurors

McClaren and Rennie because they did not recall the movie in detail at the

evidentiary hearing. With respect to McClaren, the majority states: “When asked

about her recollection of American Me, she did not say that it opened her eyes

about life in prison, that she had learned about prison gangs or the Black Guerilla

Family or violence in prison, or that it showed how life prisoners could kill within

the prison walls.” (Maj. opn., ante, at p. 36.) Of course, McClaren would have

been barred from providing much of this testimony by Evidence Code section

1150, subdivision (a), which prevents jurors from testifying about what influenced

them “to assent to or dissent from the verdict or concerning the mental processes

by which it was determined.” Thus, McClaren and Rennie could not have testified

about the effect the movie had upon them. Indeed, the magistrate below sustained

several objections on this ground when other jurors tried to testify regarding the

movie‟s effects.

With respect to McClaren‟s alleged failure of recall, the evidentiary hearing

was held in 2010, 17 years after deliberations. That McClaren could not recall, at

this great remove, all the film‟s details proves little.3 Indeed, McClaren could not


3

The majority suggests that McClaren and Rennie‟s recall of the film was

“no sharper” in their written declarations, executed in 1999 and 2000, respectively.
(Maj. opn., ante, at p. 36, fn. 11.) However, McClaren simply declared that “[t]he

(footnote continued on next page)

7



even give a general physical description of Foreman Ary, nor could she recall the

duration of deliberations. The following facts are to the point. McClaren recalled

she was urged to see the movie to learn more about “what life would be like in

prison,” and she voted for death the day after watching it. At least two other jurors

confirmed this timeline. With respect to Rennie, the majority makes much of the

circumstance that she did not watch the entire movie, testifying at the evidentiary

hearing that she thought the movie was “rather repetitious”4 and she watched the

movie because she wanted “to get an idea on what people had been talking

about . . . being in prison.” Far from suggesting that the movie had little impact,

Rennie said she stopped watching the movie because she “had seen enough.” She

understood the point of the movie, and “what people had been talking about” when

they argued that inmates can continue to commit violent crimes in prison. The

fact that the next day, within half an hour, Rennie voted for death bolsters the

conclusion that there was a substantial likelihood the movie removed any

remaining reservations.


(footnote continued from previous page)

movie American Me was also mentioned during penalty deliberations” and did not
purport to describe the movie. Rennie declared that she was “not initially in favor
of voting for the death penalty.” Ary, whom she remembered as “the bus driver,”
suggested that she watch American Me and that “it would be an education for
[her] about what prisons were really like.” She further declared: “I rented the
movie one night during the deliberations. American Me is about gangs in
California prisons and it was based on a true story.” Far from suggesting a failure
of recall, Rennie remembered the essential facts: She did not initially vote for
death, she watched American Me at Ary‟s urging to “educat[e]” herself “about
what prisons were really like,” and the film was about prison gangs and was based
upon a true story. There was no reason in the context of this declaration to give a
more detailed account of the film.
4

Our own viewing confirms this description.

8



The majority also suggests the movie did not affect deliberations because

there was no discussion of it after McClaren and Rennie watched it. Again, the

majority fails to persuasively explain how this circumstance rebuts the

presumption of prejudice. If McClaren and Rennie watched the movie and

accepted its premise, there would be no need for extensive discussion with 10

other jurors who already agreed. Indeed, the record confirms there was little

discussion about any topic on the day of the verdict given the 30-minute time

frame. Although the majority suggests that neither McClaren nor Rennie

mentioned they had seen the movie once deliberations resumed (maj. opn., ante, at

p. 37), this suggestion is at odds with Ary‟s testimony that one or both of them

mentioned the film. The magistrate sustained a hearsay objection to any further

elaboration on the point. In any event, Ary was well-aware that McClaren and

Rennie had seen the movie, suggesting the topic was at least mentioned. The

brevity of subsequent deliberations strongly suggests the movie played a part in

the two jurors‟ decisionmaking.

Finally, the majority relies upon the testimony of Jurors Lewis and Rennie

suggesting the undecided jurors did not change their votes in unison. When asked

whether the undecided jurors changed their minds “one by one, or all together,”

Lewis replied, “One by one.” Rennie initially claimed that, after watching the

movie, she did not vote for death “the next day” but she “eventually did.” She

later conceded she did not remember whether more than a day had passed between

her seeing the movie and voting for death. Their testimony hardly calls into

question the film‟s likely impact. The question is not whether McClaren and

Rennie changed their minds at the same time, but whether there was a substantial

likelihood that they did so because they were improperly influenced.

In sum, Jurors McClaren and Rennie committed misconduct. At the urging

of other jurors, they watched a movie about prison gangs, for the express purpose

9



of acquiring information to use in reaching a penalty verdict. This misconduct

raises a presumption of prejudice against defendant. The totality of the

circumstances “evidence[s] a state of mind that rendered [McClaren and Rennie]

unable to perform [their] duty not to prejudge the case and to render a decision

based solely upon the evidence presented to the jury.” (Nesler, supra, 16 Cal.4th

at p. 589.) Far from rebutting the presumption, the record reveals a substantial

likelihood that they were actually biased. Because this bias affected only the

penalty phase, I would reverse the death verdict and remand for a new penalty

phase trial.

CORRIGAN, J.

I CONCUR:

LIU, J.

10



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Boyette
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S092356
Date Filed: May 30, 2013
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Counsel:

Lynne S. Coffin, under appointment by the Supreme Court, Lynne S. Coffin, State Public Defender,
Audrey Chavez and Gail Johnson, Deputy State Public Defenders, for Petitioner Maurice Boyette.

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant
Attorneys General, Ronald S. Matthias, Glenn R. Pruden and Christina Vom Saal, Deputy Attorneys
General, for Respondent State of California.











Counsel who argued in Supreme Court (not intended for publication with opinion):

Lynne Coffin
Coffin Law Group
548 Market Street, Suite 95752
San Francisco, CA 94104
(415) 218-8106

Christina Vom Saal
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-3664
(415) 703-5979


In this case, which is related to the automatic appeal in People v. Boyette (2002) 29 Cal.4th 381, the court issued an order to show cause limited to claims of juror misconduct.

Opinion Information
Date:Citation:Docket Number:Cross Referenced Cases:
Thu, 05/30/201356 Cal.4th 866S092356

People v. Duvall 9 Cal.4th 464 (1995)


Opinion Authors
OpinionJustice Kathryn M. Werdegar
ConcurJustice Carol A. Corrigan
DissentJustice Carol A. Corrigan

Brief Downloads
application/pdf icon
1-s092356-pet-pet-writ-hc-101900.pdf (19008602 bytes) - Petitioner's Petition for Writ of Habeas Corpus Oct. 19, 2000
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2-s092356-resp-informal-response-032802.pdf (3855809 bytes) - Respondent's Informal Response March 28, 2002
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3-s092356-pet-reply-informal-response-050202.pdf (2081703 bytes) - Petitioner's Reply to Informal Response May 2, 2002
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4-s092356-resp-written-return-062607.pdf (1199109 bytes) - Respondent's Written Return June 26, 2007
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5-s092356-pet-reply-return-062308.pdf (2318177 bytes) - Petitioner's Reply to Return June 23, 2008
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6-s092356-referee-report-120110.pdf (123350 bytes) - Referee's Report Dec. 1, 2010
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7-s092356-resp-exceptions-req-adoption-ref-rep-brief-merits-040411 (1).pdf (2284213 bytes) - Respondent's Exceptions to/Request for Adoption of Referee's Report and Brief on the Merits April 4, 2011
application/pdf icon
8-s092356-pet-exceptions-ref-rep-brief-merits-041111.pdf (2690760 bytes) - Petitioner's Exceptions to the Referee's Report Brief on the Merits April 11, 2011
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 4, 2014
Annotated by Rachel Easter

FACTS
Petitioner, Maurice Boyette, was convicted of two counts of first degree murder by an Alameda County Jury. Boyette was also convicted of being a felon in possession of a firearm, and the jury sustained a multiple murder special circumstance allegation against Boyette rendering him eligible for the death penalty. Following the penalty phase of the trial, the jury sentenced Boyette to death. The California Supreme Court affirmed the conviction and sentence in 2002.
While his appeal was pending, petitioner filed a petition for a writ of habeas corpus. In response to allegations of jury misconduct in the writ, the California Supreme Court appointed a judge to serve as referee, determine the facts underlying the six claims of misconduct in the habeas petition, and report these finding to the Supreme Court to make the ultimate legal determination on the writ. The referee conducted hearings and gathered testimony from petitioner, respondent, and the members of the jury and made evidentiary determinations. In his report the referee found the following: (1) Juror, Ary, failed to disclose his criminal record, but this failure to disclose was not indicative of bias and juror was not in fact biased. (2) Juror, Ary, failed to disclose that he had several close relatives with criminal records, but this failure to disclose was not indicative of bias and juror was not in fact biased. (3) Juror, Ary, failed to disclose his problems with alcohol and his son’s problems with drugs, but this failure was not indicative of bias and juror was not in fact biased. (4) Juror, Ary, did not assert that petitioner had previously committed uncharged murders. (5) Ary did encourage other jurors to watch the film American Me, and two jurors did watch the film during deliberation of the sentencing phase of petitioner’s trial.

PROCEDURAL HISTORY
While Boyette’s appeal was pending before the California Supreme Court, petitioner also filed a petition for a writ of habeas corpus. The petition alleged several counts of jury misconduct, a prima facie case for relief, so the Supreme Court ordered the Director of the Department of Corrections to issue a response explaining why relief should not be granted. In addition, the Supreme Court appointed a district court judge to serve as a referee and hold an evidentiary hearing to determine the relevant facts alleged in the habeas petition. The referee held the hearings and filed a report with the court (contents discussed supra). Parties filed exceptions to the report asking the Supreme Court to reconsider some of the referee’s evidentiary findings. The Supreme Court considered the referee’s report and ruled on petitioner’s habeas petition in the present case.

ISSUES
1. Was there sufficient evidence to support referee’s finding that the juror’s failure to disclose criminal history was not indicative of bias in his jury duties?

2. Was there sufficient evidence to supporting finding that the juror’s failure to disclose that he had close relatives with a criminal history was not indicative of bias in his jury duties?

3. Was there sufficient evidence to support finding that the juror’s failure to disclose membership in Alcoholics Anonymous or relatives’ substance abuse was not indicative of bias in his jury duties?

4. Was there sufficient evidence to support finding that the juror did not commit misconduct by informing other jurors that defendant may previously have committed murder?

5. Did the misconduct of two jurors in watching a movie which depicted violent prison life establish a likelihood of bias?

6. Did the cumulative impact of these failures to disclose and juror misconduct violate petitioner’s right to trial by an impartial jury?

HOLDING
There was sufficient evidence to support referee’s conclusion as to juror’s nondisclosure of his own criminal history, the criminal history of his close relatives, and his problems with alcohol as well as his son’s problems with drugs. The Court supports the finding that these failures to disclose did not indicate bias on the part of the juror. The Court additionally supports the referee’s finding that there is not conclusive evidence to show that juror discussed possibility that petitioner committed pervious uncharged murders; therefore, there is no evidence of jury misconduct on this count. Finally, while two jurors committed misconduct by watching the film American Me during deliberations, this misconduct was not prejudicial nor did it result in bias. The cumulative impact of these findings showed petitioner’s jury did not lack impartiality, and the habeas petition was denied.

ANALYSIS
1. On the jury questionnaire the juror in question, Ary, answered “no” to the question “have you, a close friend, or relative ever been accused of a crime, even if the case did not come to court?”(emphasis added). In fact, Ary had been arrested a total of four times. In the evidentiary hearing, the referee found that Ary’ failure to disclose resulted from a failure to understand the question because Ary believed he only needed to report convictions rather than arrests. Petitioner alleged that referee wrongfully concluded that this misunderstanding indicated that Ary’s failure to disclose did not mean he was biased in his duties as a juror. During the evidentiary hearing, petitioner was prevented from asking Ary about his bias as a juror generally rather than simply in relation to this failure to disclose. The Court upheld this decision by the referee because the referee was directed to determine not whether Ary was generally a biased juror, but whether Ary’s concealment of his criminal record demonstrated he was biased. Further petitioner alleged that Ary gave several different reasons for failure to disclose at different points in time, but the Court assumed the referee took account of these discrepancies in his determination that the juror’s failure to disclose indicated bias. Therefore, the Court rejected petitioner’s exceptions and found there was sufficient evidence to support the referee’s finding that Ary’s failure to disclose did not indicate bias.

2. On the jury questionnaire Ary answered “no” to the question “have you, a close friend, or relative every been accused of a crime?” (emphasis added). In fact, Ary’s two sons as well as two other relatives had significant criminal histories. Petitioner alleged he would have used a peremptory challenge to strike Ary from the jury had he known these facts. The referee found that Ary’s answer resulted in part from a lack of knowledge and in part from a failure of recollection when answering the question. Referee concluded that because the failure to disclose was unintentional it was not indicative of bias. Petitioner cited to a Ninth Circuit case asserting that the judge must uncover easily discernible facts rather than rest on assumptions in determining juror bias. In that case the state court failed to conduct a reasonably thorough investigation; however, the Court distinguished the present case because a thorough investigation was conducted by the referee. Because there was no suggestion the referee’s investigation was inadequate, the Court was not required to independently engage in fact-finding.; therefore, the Court deferred to the referee in finding Ary’s failure to disclose the criminal history of close relatives did not indicate juror bias.

3. On the jury questionnaire, Ary answered “no” to the question “have you, a close friend, or relative ever had a problem involving the use of drugs or alcohol?”. In fact, Ary was arrested previously for a DUI and required to attend Alcoholics Anonymous, and Ary’s son was sentenced previously for drug use and addiction. The referee found that Ary’s failure to disclose this information was unintentional because Ary did not consider himself to have a problem with alcohol; instead, his assignment to Alcoholics Anonymous was a condition of his probation after the DUI. In addition, Ary did not know about his son’s sentence. Petitioner alleged that Ary’s inconsistent story indicated that the referee was incorrect in finding that Ary’s failure to disclose did not indicate bias. However here, as in the previous two counts, the Court assumed the referee considered these inconsistencies and deferred to the referee’s determination.

4. Petitioner alleged that during deliberations Ary told the other jurors “the judge discussed the fact that this may have been the first murder for which Mr. Boyette had been caught but that he may have committed pervious murders. If we found second degree murder, when he got out in seven years he would feel like he’d gotten away with these killings and would kill again.” After questioning the other members of the jury, the referee concluded there was not enough evidence to support this assertion. Ary testified that he did not make these remarks, and only one other juror remembered the subject of previous murders by petitioner being raised during deliberations. Because all other jurors did not recall Ary making these statements, the Court deferred to the referee’s decision that these events did not occur and therefore there was no juror bias on this count.

5. Petitioner alleged Ary committed juror misconduct by encouraging other jurors to watch the film American Me in order to convince these jurors to vote in favor of the death penalty. The referee found there was sufficient evidence to indicate that Ary did in fact encourage several jurors to watch the film in order to understand what life is like in prison and to inform the decision at the sentencing phase of trial. The trial court instructed the jury to make a determination based only on evidence received at trial not from any other source and not to consult reference works or persons for additional information. The decision by two of the jurors to follow Ary’s advice and watch the film while deliberations were on-going was clear misconduct. When a juror engages in misconduct there is a presumption of prejudice which the prosecution must rebut by demonstrating there is no substantial likelihood that any juror was improperly influenced. There are two categories of information received by jurors outside of the record of the case that indicate bias and require reversal of the decision: (1) evidence that is so prejudicial in and of itself that it is substantially likely to have influenced a juror and (2) information that indicates bias from the nature of the misconduct and the surrounding circumstances. Because American Me is a fictional film purporting to depict prison life, the Court found it clearly did not fall within the first category, so it was necessary to determine if under the circumstances of the particular case the film biased the two jurors that committed misconduct. Neither juror could recall the film in any detail and neither indicated in her testimony that the film influenced her decision regarding petitioner’s sentence. In addition, the morning after both jurors viewed the film the jury came to a decision regarding petitioner but the film was not discussed. The Court found that had the film had such an impact on either juror as to influence her decision it would have been raised in the final phase of deliberations and she would have remembered the film in better detail during testimony. In addition, the contents of the film had been discussed by members of the jury previously, so it did not provide either juror with any new information. Therefore, the Court concluded the petitioner did not demonstrate a substantial likelihood that the jury misconduct resulted in bias against petitioner.

6. Because there was sufficient evidence to show that Ary’s failure to disclose information on the questionnaire did not indicate bias, there was not sufficient evidence to support the allegation that Ary made statements regarding petitioner’s previous murders, and the juror misconduct of watching American Me during deliberations did not result in bias there was no evidence to indicate the jury was not impartial during petitioner’s trial. As a result, the habeas petition was denied.

REFERENCED CASES
People v. Duvall 9 Cal.4th 464 (1995)
In re Bacigalupo 55 Cal.4th 312 (2012)
People v. Holloway Cal.4th 96 (2004)
People v. Ennis 190 Cal.App.4th 721 (2010)
In re Price 51 Cal.4th 547 (2011)
In re Hardy 41 Cal.4th 977 (2007)
Dyer v. Calderon 151 F.3d 970 (9th Cir., 1998)
People v. Avena 13 Cal.4th 394 (1996)
In re Scott 29 Cal.4th 783 (2003)
In re Hamilton 20 Cal.4th 273 (1999)
In re Hitchings 6 Cal.4th 97 (1993)
People v. Majors 18 Cal.4th 385 (1998)
People v. Nesler 16 Cal.4th 561 (1997)
People v. Melton 44 Cal.3d 713 (1998)
Elsworth v. Beech Aircraft Corp. 37 Cal.3d 540 (1984)
People v. Gamache 48 Cal.4th 347 (2010)
People v. Holloway 50 Cal.3d 1098 (1990)
People v. Andrews 149 Cal.App.3d 858 (1983)
People v. Yeoman 31 Cal.4th 93 (2003)
In re Carpenter 9 Cal.4th 634 (1995)
Skilling v. United States 561 U.S. 358 (2010)
People v. Ramos 34 Cal.4th 494 (2004)
People v. Cooper 53 Cal.3d 771 (1991)

ANNOTATION BY: R. Easter