JX

HelpSign InSign Up
OpinionCase details
From Casetext: Smarter Legal Research
People v. Calkins
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 14, 2017
A144393 (Cal. Ct. App. Feb. 14, 2017)Copy Citation
DownloadTreatment
A144393

02-14-2017

THE PEOPLE, Plaintiff and Respondent, v. RICHARD CALKINS, Defendant and Appellant.

Red flags, copy-with-cite, case summaries, annotated statutes and more.

Learn more
Humes, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing
or relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No.
FCR281140)

After ingesting psilocybin mushrooms during a small gathering at his apartment, and
without any apparent motive, defendant Richard Calkins shot and killed two of his
friends, Cameron S. and Richard P., and shot and seriously injured another friend,
Sarah B. A jury convicted Calkins of one count of second degree murder of Cameron
S. and one count of attempted murder of Sarah B. but was unable to return a verdict
on the count of murder of Richard P. Calkins was sentenced to 74 years to life in
prison.

On appeal, Calkins argues that his convictions must be reversed because the trial
court improperly: (1) denied his Batson/Wheeler motion after the prosecutor
exercised a peremptory challenge on an African-American prospective juror; (2)
excluded evidence that another user of mushrooms sold by Calkins's drug dealer also
committed "bizarre and uncharacteristic violent" offenses; (3) refused to grant use
immunity to the drug dealer after he invoked his privilege against self-
incrimination; and (4) denied Calkins's motion for a new trial based on two types
of juror misconduct. We affirm.

Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.

I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Shootings.

The shootings occurred early on the morning of November 16, 2010, during a social
gathering at a two-story Vacaville apartment that Calkins, then 18 years old,
shared with his girlfriend, Nichole O.; their seven-month-old daughter; his older
brother, Josh; and Josh's pregnant wife, Britney.
We refer to Josh and Britney Calkins by their first names to avoid confusion.

Earlier that night, around 7:00 p.m., Britney and Nichole O. went shopping for
dinner. They eventually returned and began cooking. Richard P., a friend, had
arrived at the apartment, and Britney called Sarah B. to invite her and her
longtime boyfriend, Cameron S., to come over. Sarah B. and Cameron S. were close
with Calkins, Josh, and Britney, and regularly spent time with them.

Sarah B. and Cameron S. arrived at the apartment around 9:30 p.m. After an hour or
so, Calkins, Sarah B., and Cameron S. left to buy psilocybin mushrooms to consume
that night, an idea Sarah B. originally proposed. The three drove to the Vacaville
home of Gabe T., a minor, and purchased $80 worth of mushrooms from him.

Around 11:00 p.m., Calkins, Sarah B., Cameron S., and Richard P. ingested varying
amounts of the mushrooms, which they had split four ways. Neither Britney nor Josh
participated. Sarah B. testified that after ingesting the mushrooms she felt "very
calm, and . . . things were bright and vibrant," consistent with her previous
experiences taking the drug. She observed that Cameron S. also seemed quiet and
mellow but that Calkins, who was normally talkative, started acting "weird and
quiet" and Richard P. became "happy" and was "giggling" and "laughing hysterically"
at points. Josh also noticed that Calkins was being especially quiet. Britney,
however, testified that everyone seemed calm and happy, and Calkins "didn't seem
any different."

After taking the mushrooms, Sarah B., Cameron S., and Calkins sat in the living
room with Nichole O., Josh, and Britney, and the group watched television for a
couple hours. Richard P. sat nearby, in the dining area. Eventually, he and Josh
went outside to smoke. After Josh came back inside, he and Britney went upstairs.
Britney lay down in their bedroom, and Josh showered.

Sometime later, Nichole O. stood up, said she was going to bed, and walked toward
the staircase. As Sarah B. got ready to gather her things to leave, she heard what
"sounded like two really loud fire[]crackers going off" in the kitchen. She saw
Cameron S. approach the kitchen in a crouched position as if to investigate the
sound. After he had taken a few steps, Sarah B. heard another shot and saw him fall
to the ground. Calkins approached, holding a gun, and Cameron S. began crawling
toward her. Calkins, who had a "blank stare," then aimed the gun toward her, shot
her in the shoulder, fired two more shots at Cameron S., and shot her in the face
as she held her hands in front of it.

Nichole O. testified that she was halfway up the stairs when she heard a noise that
"sounded like gunshots," prompting her to run to the upstairs bedroom where her
daughter was sleeping. Nichole O. picked up the baby and went to Josh and Britney's
room. Meanwhile, Josh and Britney heard a gunshot as Josh was getting into bed.
Josh put on his clothes and opened the door for Nichole O. After pulling her into
the room, he told her and Britney to lock the door after him and then ran
downstairs.

Josh testified that as he reached the bottom of the stairs, he saw Sarah B. lying
face down on the couch and Calkins shooting Cameron S. from behind. Josh said he
ran to Calkins and started shaking him and yelling at him. Josh testified,
"[Calkins] looked at me and he stopped shooting, and I was yelling what is wrong,
what is wrong. And he wouldn't answer me, and he was very quiet like he wasn't
there. He wasn't responding to me." According to Josh, Calkins then turned and
pointed the gun at his brother's face and pulled the trigger, which clicked. When
Josh asked Calkins why he had done that, Calkins pulled the trigger again. Josh
repeatedly told Calkins to leave, and Calkins eventually walked out the front door,
still holding the gun.
Other testimony cast doubt on some of Josh's testimony about his interaction with
Calkins. Sarah B. never mentioned seeing Josh downstairs at this juncture, and she
specifically testified that she never saw Calkins point the gun at Josh. Josh also
admitted at trial that he never told the police that Calkins had aimed the gun at
him and pulled the trigger and had lied to police about other aspects of the
incident.

Josh testified that he then went back upstairs to his bedroom and told Britney and
Nichole O. to come with him. After the women followed Josh downstairs, he made sure
that Calkins was not outside. Josh then ran to his car, unlocked it, and ran back
to the apartment to lead Britney, Nichole O., and his niece outside.

Two sisters who lived in the same fourplex, Katrina and Kayla G., also testified at
trial. Katrina G. testified that she was lying down when she heard gunshots. She
heard yelling in "a combination of both male and female" voices and a woman
screaming for help. Katrina G. crawled to a window and looked out to see a man
holding a gun walk out of Calkins's apartment a minute or so after the shooting had
stopped. Though it was dark and she could not see the man's face, she believed he
was Calkins, "based on the body type, which [was] . . . significantly different
than everyone else." He quickly walked away down the street.

Calkins was five feet, seven inches and about 265 pounds at the time.

Kayla G. testified that she was awakened by gunshots and could hear a woman
screaming. She called 911 and went downstairs to open her front door. Sarah B. was
standing at the door, "and behind her everybody was running." Sarah B. appeared
"shocked[,] like she had no emotion," and was bleeding from her face and hand. She
said Calkins had shot her.

The first police officer arrived on the scene around 1:45 a.m., within a minute of
being dispatched. Josh and Britney were getting into a car, seeming "anxious to
leave," and the officer ordered them to stay. After determining that Sarah B. had
been shot, the officer entered Calkins's apartment and discovered Cameron S. "in a
kneeling position face down on the couch." Backup arrived, and the officer went
further inside and found Richard P. "in a seated position leaning against a
cabinet" in the kitchen. Both Cameron S. and Richard P. were dead.

At 1:53 a.m., a witness dialed 911 and reported that a man, later determined to be
Calkins, was walking toward the Vacaville police station with a gun. The witness
testified that when he saw Calkins walking in the middle of the street, he stopped
his vehicle, believing that Calkins might be intoxicated and in need of help.
Calkins then pulled out a gun and pointed it at the witness, who quickly drove
away.

The police dispatcher watched on a surveillance camera as Calkins entered the

station's lobby, which had mistakenly been left unlocked. Calkins "seemed very
agitated" and was hitting "the records window" and "some type of a sign" with the
gun. He also shattered a lobby window. Calkins eventually discarded the gun and
began descending the outside stairs to leave.

A police officer responding to the scene came up the stairs, aimed his weapon at
Calkins, and told him to put up his hands. Calkins displayed his hands "out by his
side and said, 'What's up, what's up?' " The officer repeatedly ordered Calkins to
the ground, but Calkins continued to walk down the stairs. The officer then
deployed a Taser, hitting Calkins and causing him to fall down the stairs. The fall
rendered Calkins unconscious, and he was transported to a hospital. Due to serious
head injuries, he was intubated, put on a ventilator, and placed in a medically-
induced coma.
B. The Physical Evidence.

Calkins shot all three victims with a Smith & Wesson .40 caliber semiautomatic
handgun, which was recovered from the police station lobby. The weapon was
functioning normally, and shooting it required a slide on the top to be pulled back
and then the trigger to be pulled. It had a 10-round capacity magazine, which was
empty when the gun was recovered. Eight expended shell casings were found in
Calkins's apartment, three in the kitchen and five in the living room. A box of .40
caliber ammunition with eight rounds missing was recovered from the bottom shelf of
the coffee table in the living room.

Richard P. died from three gunshot wounds: one to his left upper eyelid, one to the
right side of his head, and one to his upper chest. The physical evidence suggested
that he "was standing or leaning against the kitchen counter when he was first
shot" in the eye and that the following two shots came after he "slumped against
the counter."

Cameron S. died from four gunshot wounds: one to the right side of his face near
his mouth, one to his left cheek, a graze wound to the right side of his upper
chest, and one to his right shoulder, possibly caused by the same bullet as the one
that wounded his cheek. The evidence suggested that Cameron S. was first shot in
the mouth as he crouched to look into the kitchen. After he fell to the floor, he
was shot in the cheek. Sarah B. sustained gunshot wounds to her face and hand.

3.72 grams of mushrooms were collected from the kitchen table, and a plastic bag
containing 2.64 grams of mushrooms was collected from Sarah B.'s purse. Both sets
of mushrooms tested positive for psilocybin and psilocin, psilocybin's active
ingredient, and the mushrooms recovered from the kitchen table also tested positive
for THC (marijuana). Around 5:00 a.m. on November 16, Calkins tested positive for
THC, as well as benzodiazepines, which are commonly used during intubation. He
tested negative for a number of other substances, including amphetamines and
methamphetamines. He was not tested for psilocybin or psilocin.

The evidence showed that drug testing rarely detects the ingestion of mushrooms for
several reasons, including the need for a preservative to be added to any sample
collected and the biological mechanisms by which the human body processes the drug.

C. Calkins's Police Interview.

The police interviewed Calkins on December 5, 2010, the same day he was discharged
from the hospital after an almost three-week stay. A videotape of portions of the
interview was played for the jury. Calkins did not testify at trial.

For the first part of the interview, Calkins appeared unaware of the shootings. He
claimed to recall little about that evening and stated that the last thing he
remembered was going to sleep. He also said that Cameron S. and Sarah B. had
visited him after he was hospitalized. After the police told him that he had killed
Cameron S. and Richard P., he expressed shock and disbelief.

Pressed to explain what had happened, Calkins said, "It coulda been the shrooms and
the drinking." He said that it was his first time taking mushrooms in two years.
That night, they made him "feel funny," and he had a "weird feeling" and was
"tripping [himself] out." He also described previous bad trips on mushrooms during
which he would think about "weird stuff" that he thought was "fake" or stare at the
ceiling. Calkins admitted that he had had the gun in his pocket, and he explained
he had bought it a couple days beforehand and intended to sell it to a friend, Tim
D. Calkins had loaded it with only eight rounds instead of ten because he had
accidentally discharged another gun before.
Tim D. testified that he had asked Calkins to buy the gun for him and that Calkins
did so soon before the shootings.

Calkins revealed that he remembered shooting the gun but thought it was a "bad
dream" and not real. Though unable to remember many details, he consistently said
he recalled shooting Cameron S. But Calkins's story about Richard P. and Sarah B.
varied. At some points, Calkins said he did not recall shooting either one, but he
also said he remembered shooting Richard P. after shooting Cameron S. and shooting
Sarah B. while she was on the ground. Calkins was unclear on what prompted him to
start shooting but thought he had argued with someone, likely Cameron S.

D. The Unconsciousness Defense.

No clear motive for the shootings ever emerged. Sarah B., Nichole O., Josh, and
Britney uniformly denied that there were any arguments or that there was animosity
between Calkins and anyone else on the evening of the shootings. The defense
presented witnesses who testified that Calkins was good friends with the victims
and denied knowing about any disputes between Calkins and the victims. The
prosecution posited that Calkins had shot Richard P. because Richard P. had teased
him, but Tim D., the primary source of that theory, testified at trial that he had
previously seen Cameron S., Richard P., and Calkins making fun of each other
"jokingly, not antagonizing or anything. That's just what friends do."

Calkins presented a defense of unconsciousness due to voluntary intoxication. Dr.

Alex Stalcup, M.D., an expert on psychedelic drugs' effect on the human body,
opined that Calkins's actions on the night in question were consistent with his
having been under the influence of mushrooms. He explained that mushrooms "turn off
a necessary biologic filter" and "flood" the user with stimuli. As a person
becomes more intoxicated, "the line between being conscious and aware of what
you're doing and the fantasies in your head gets blurred," to the extent that "[i]n
extreme forms of intoxication, people enter a dream state" during which they may be
purposefully committing actions even as they are "unconscious mentally." The point
at which a person reaches the highest level of intoxication, referred to as
"peaking," occurs one to two hours after ingestion, which was consistent with the
timing of the shootings, and lasts for about two hours.

Dr. John Shields, Ph.D., testified as an expert in neuropsychology,

"including . . . the effects of hallucinogenic drugs on a human brain." Based, in
part, on about 20 hours of interviews with Calkins, Dr. Shields testified that
Calkins was of average cognitive and memory ability and exhibited no obvious signs
of any mental disorder. Given these characteristics, Dr. Shields opined that
Calkins's "altered state of consciousness" during the shootings was due to his
consumption of mushrooms, not some other mental issue. Dr. Shields also agreed
that, given the lack of any rational motive for it, Calkins's behavior was
consistent with his having been "unconscious due to the consumption of psilocybin
mushrooms."

Dr. Stalcup explained that many people "hav[e] a wonderful time" when they take
mushrooms, but "a bad trip" during which the user becomes unconscious of reality is
also possible. The witness descriptions of Calkins's "suddenly falling silent,
getting this strange expression, huge pupils, is what we would regard as someone
becoming internally preoccupied, entering into this dream-like bad trip." The
victims' differing reactions to the same mushrooms did not undermine this
conclusion, as the same batch of mushrooms could have a different effect on
different people. Dr. Stalcup testified that "[d]eterminants of the quality of the
trip are the mindset, the setting in which [the drug is] done[,] and previous
experiences. . . . So if someone has had a bad trip, the likelihood that they'll
have another bad trip is much greater than [for] someone who has never had a bad
trip."
Some evidence corroborated Calkins's own statements that he had previously had bad
trips. Sarah B. told the police that Calkins had taken a smaller amount of the
mushrooms than she had because "he had had a bad trip on a prior occasion using
[them], and he was concerned about that." Kayla G. also told the police she had
spoken to Calkins earlier in the evening of the shootings, and he "had told her
that the last time he had some mushrooms, he had a bad trip." Finally, Tim D.
described a "bad trip" of Calkins's about two years before the shootings during
which Calkins "just walked around, wouldn't say anything, real quiet and was
walking around with one hand on his head . . . and not responsive pretty much." Tim
D. characterized Calkins as acting "zombie-like."

Dr. Stalcup disagreed with the prosecutor's suggestion that "the prior bad trip
experience will usually be determinative of what the bad trip is going to be like
in the future," indicating that it is generally unpredictable how a bad trip will
manifest itself. The doctor explained, "[T]he whole point of psychedelic
intoxication is that it's unpredictable. It's very risky to make predictions
because someone can change on a dime." Although reported cases of violent behavior
while on mushrooms are rare, Dr. Stalcup was aware of approximately ten cases in
which people had attacked or killed others with whom they had good relationships.
He testified, "[T]hese crimes are bizarre, they make no sense, they are gruesome,
they are way out of proportion with what you'd expect an angry person or a murderer
to do. They just sort of come out of the mind, and the person doesn't know what
they are doing, isn't aware of what they're doing. [¶] Also, in the cases that have
been reported, they have very little memory of what happened or they remember
themselves in a dream. . . . None of it makes sense because it isn't sensible, it's
not rational, it's not reasonable behavior. It's drug behavior."

The defense also sought to establish that two other factors influenced Calkins's
behavior after Calkins took the mushrooms: the video games he played earlier that
evening and the possibility that the mushrooms were adulterated with MDMA
(Ecstasy). As to the first factor, Josh testified that earlier that night he and
Calkins had played Call of Duty and Grand Theft Auto, both of which Josh
characterized as violent games in which a primary objective is to kill people. When
Josh returned to the apartment after the shootings, Grand Theft Auto was still in
the PlayStation. A friend who had stopped by earlier in the evening also testified
that during his visit Calkins and others were playing video games, including Grand
Theft Auto. Dr. Shields testified that Calkins's having played violent video games
could have "inform[ed] in some way subsequent behavior, particularly as it relates
to shooting."

As to the second factor, the defense presented evidence that mushrooms from the
same batch as those Calkins consumed were laced with MDMA. Three days after the
shootings, the police searched the residence of Gabe T., recovered a backpack and a
grocery bag containing mushrooms, and arrested him. Gabe T. admitted that he had
sold Calkins " 'a lot, possibly two to five . . . eighths of mushrooms, containing
stems, caps[,] and a super cap' " from the same batch as the mushrooms discovered
at Gabe T.'s house. Some of the mushrooms in Gabe T.'s possession tested positive
for MDMA. Dr. Stalcup testified that a combination of mushrooms and MDMA, which is
a form of methamphetamine, "produces a very intense, very colorful, pretty much
out-of-control form of a high" that most people would not want to experience again.
Dr. Shields testified that taking the two drugs in combination "could potentially
have a much more significant clinical impact" on users than mushrooms alone,
"particularly on [the users'] level of awareness and their perceptual acuity." No
expert testimony was presented, however, to establish whether Calkins's negative
test for amphetamines and methamphetamine was possible even if he had consumed
MDMA-laced mushrooms.

E. The Verdict and Sentencing.

The jury convicted Calkins of one count of second degree murder of Cameron S. and
one count of attempted murder of Sarah B. It also found true the allegations that
Calkins personally and intentionally discharged a firearm causing death or great
bodily injury during both crimes. But the jury was unable to reach a verdict on the
count of murder of Richard P. and the allegation that the attempted murder of Sarah
B. was willful, deliberate, and premeditated. The trial court sentenced Calkins to
a total term of 74 years to life in prison, comprised of terms of 15 years to life
for the murder of Cameron S., 9 years for the attempted murder of Sarah B., and 25
years to life for both firearm enhancements.

Calkins was found guilty of second degree murder under Penal Code section 187,
subdivision (a) and attempted murder under Penal Code sections 187, subdivision (a)
and 664.

These allegations were found true under Penal Code section 12022.53, subdivision
(d).

II.
DISCUSSION
A. The Trial Court Properly Denied Calkins's Batson/Wheeler Motion.

Calkins contends that his convictions must be reversed because the trial court
erroneously denied his Batson/Wheeler motion after the prosecutor exercised a
peremptory challenge on an African-American prospective juror, Ms. S. We are not
persuaded.

1. Additional facts.

During voir dire, Ms. S. responded to the defense's questions about certain
information in her juror questionnaire. First, she indicated on the questionnaire
that she did not have any opinions about "criminal defense attorneys and
prosecuting attorneys." When asked to reconcile this response with the fact that
she had worked at the law firm Bingham McCutchen, Ms. S. responded that the firm
was "basically corporate" even though it did some white collar defense work and
that she was "not familiar with criminal." Second, the defense asked Ms. S. about
her disclosed involvement in a previous criminal case. She explained that she was a
character witness for her nephew during his trial for murder in the 1990's. Ms. S.
indicated that she was not concerned about her ability to be objective in this
case.

The questionnaire is not in our record.

The prosecutor eventually exercised a peremptory challenge on Ms. S., and Calkins
made a Batson/Wheeler motion. Calkins's trial counsel explained, "Ms. [S.] appears
to be African[-]American. Her answers were neutral in regard to the questionnaire
and in the courtroom. She didn't have any bias toward either side. I don't believe
any of the representations she made or any of her life history . . . has any
relationship with law enforcement or criminal defense."

The prosecutor responded that Calkins had failed to make a prima facie showing of
racial discrimination because "there [were] sufficient reasons from the record why
[Ms. S.] was excused [that had] nothing to do with the fact she is an
African[-]American" but asked the trial court for an opportunity to state those
reasons for the record "in an abundance of caution." After the court agreed, the
prosecutor explained that Ms. S. had worked at Bingham McCutchen, which had
represented a defendant in another case, Alex Cervantes, who engaged in violent
offenses after ingesting mushrooms purchased from Gabe T. The prosecutor also
explained that Ms. S. had testified in her nephew's murder trial, which signaled
her potential "sympathy for someone who is a defendant in a criminal murder case."
Calkins's trial counsel responded that Ms. S. had stopped working at Bingham
McCutchen before its involvement in the Cervantes case and that her involvement in
her nephew's murder case was not good a reason to excuse her. Calkins's trial
counsel also noted that there were no more African-Americans on the panel.

The trial court ruled that Calkins had failed to make a prima facie showing of
racial discrimination and denied the motion. It found that although Ms. S. seemed
like she "could be a very good juror in many respects," there were "race neutral"
reasons in the record for her dismissal. It also found that the prosecutor was
credible when giving his reasons for dismissing Ms. S. and concluded that he had
properly exercised the peremptory challenge.

2. Substantial evidence supports the trial court's conclusion that Calkins did not
make a prima facie showing of racial discrimination.

The federal and state Constitutions forbid the removal of prospective jurors based
only on their race. (People v. Duff (2014) 58 Cal.4th 527, 544.) Claims that the
prosecution impermissibly exercised a peremptory challenge based on race require a
three-step analysis. (Id. at p. 545.) First, the defendant must " 'make out a prima
facie case "by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose." [Citation.] Second, once the defendant has
made out a prima facie case, the "burden shifts to the State to explain adequately
the racial exclusion" by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the
trial court must then decide . . . whether the opponent of the strike has proved
purposeful racial discrimination." ' " (Ibid.) "When reviewing the denial of a
first stage Batson/Wheeler inquiry, we sustain the trial court's ruling if, upon
our independent review of the record, we conclude the totality of the relevant
facts does not give rise to an inference of discriminatory purpose." (People v.
Montes (2014) 58 Cal.4th 809, 854.)

Although Calkins acknowledges that the trial court denied his Batson/Wheeler motion
on the ground that he failed to make a prima facie showing, his arguments for
reversal address the third stage of the inquiry, not the first stage. In
particular, he claims to be entitled to relief because the prosecutor did not
"conduct voir dire as to subject matter that the prosecutor later invoked as reason
for a peremptory strike" and the court failed "to probe [the] prosecutor's stated
reasons" for dismissing Ms. S. As the Attorney General observes, that a prosecutor
offers reasons for excusing a prospective juror does not require this court to
"proceed immediately to the third step of the Batson analysis—determining whether
the record supports the prosecutor's race-neutral explanations—without first
determining whether [the] defendant established a prima facie case of intentional
discrimination." (People v. Taylor (2010) 48 Cal.4th 574, 612.) Instead, where, as
here, "(1) the trial court has determined that no prima facie case of
discrimination exists, (2) the trial court allows or invites the prosecutor to
state his or her reasons for excusing the juror for the record, (3) the prosecutor
provides nondiscriminatory reasons, and (4) the trial court determines that the
prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin
its analysis of the trial court's denial of the Batson/Wheeler motion with a review
of the first-stage ruling. [Citations.] If the appellate court agrees with the
trial court's first-stage ruling, the claim is resolved." (People v. Scott (2015)
61 Cal.4th 363, 391, fn. omitted.) Here, the trial court unambiguously found that
Calkins failed to make a prima facie showing, and we therefore "undertake an
independent review of the record to decide 'the legal question whether the record
supports an inference that the prosecutor excused a juror on the basis of race.' "
(Taylor, at p. 614.) Because we answer in the negative, we need not address
Calkins's arguments addressed to the third stage. (See Scott, at p. 391.)
Calkins argues that he made his Batson/Wheeler motion "on [the] two bases that the
challenged [juror] was (1) a racial minority; and (2) a paragon of apparent
objectivity based on the totality of the jury selection record at that time." We
disagree with his characterization of Ms. S.'s objectivity. Her service as a
character witness in her nephew's murder trial, standing alone, could give rise to
a reasonable belief that Ms. S. might be sympathetic to the defendant in a murder
case like this one and justified the prosecutor's peremptory challenge. (See, e.g.,
People v. Avila (2006) 38 Cal.4th 491, 554-555 [brother's manslaughter conviction
was a " 'reason[] other than racial bias for any prosecutor to challenge' "
prospective juror]; People v. Farnam (2002) 28 Cal.4th 107, 138 [no prima facie
showing made where prospective juror's nephew was in prison]; People v. Rodriguez
(1999) 76 Cal.App.4th 1093, 1098, 1114 [brother-in-law's murder conviction was
race-neutral reason to dismiss prospective juror in murder trial].) Ms. S.'s
promise that she could be objective despite her involvement in her nephew's case
does not undermine our conclusion: even if a prospective juror protests to the
contrary, "a prosecutor may reasonably surmise that a close relative's adversary
contact with the criminal justice system might make a prospective juror
unsympathetic to the prosecution." (Farnam, at p. 138.) The trial court did not err
by finding that Calkins failed to make a prima facie showing of racial
discrimination.

B. The Trial Court Did Not Err by Excluding Evidence Related to the Cervantes Case.

Calkins claims that the trial court violated his right to present a complete
defense by excluding evidence that Cervantes violently assaulted two people after
taking mushrooms from the same batch as those Calkins took. We disagree.

1. Additional facts.

Before trial, the prosecution moved to exclude "testimony involving [the] Alex
Cervantes case," including both Cervantes's and Gabe T.'s testimony. (Some
capitalization omitted.) According to our record, approximately a month after the
shootings in this case, Cervantes stabbed two minor half-siblings of Gabe T. and
raped one of them, after which Cervantes was found "naked in the house of the
victims and just was kind of talking to himself when the police came." Cervantes,
who was a juvenile at the time but was tried as an adult, was convicted in
September 2012. In conjunction with his motion for a new trial, Cervantes submitted
a declaration in which he claimed for the first time that during the attacks he was
under the influence of mushrooms he had purchased from Gabe T. The prosecution here
argued that evidence of Cervantes's crimes was irrelevant to proving Calkins's
intent, particularly because Cervantes "had a history of mental health issues and
sexually sadistic behavior." In addition, noting that the evidence of any tie
between Cervantes's and Calkins's crimes was "highly speculative," the prosecution
argued that the evidence was also unduly prejudicial under Evidence Code section
352.

Cervantes's appeal from his convictions is currently pending in Division Four of

this court. (People v. Cervantes, A140464.)

All further statutory references are to the Evidence Code unless otherwise noted.

At a hearing on the issue, the prosecutor expounded on the differences between the
two cases. There was evidence that Cervantes had previously "exhibited acts of
sexual violence or had tendencies towards acts of sexual violence," including
having "drawn some very, very violent drawings of women with parts of their private
areas being mutilated." In contrast, Calkins did not commit "sexually-motivated"
crimes, and there was no indication that he was predisposed to commit violent acts.
Observing that there was a "very, very attenuated" connection between the two
cases, the prosecutor asked the trial court to exclude the Cervantes evidence under
section 352 because it would require a mini-trial and confuse the jury. Calkins's
trial counsel responded that behavior such as Cervantes's and Calkins's "is unusual
in regard to mushroom intoxication" and that "more bizarre behavior by someone
else committing a crime under the influence of mushrooms" purchased from the same
source and around the same time confirmed that the mushrooms caused Calkins's
behavior.

The trial court ruled that the parties could not mention the Cervantes incident
without first seeking a hearing under section 402. In doing so, the court suggested
that much of the Cervantes evidence would be inadmissible under section 352,
stating, "I don't see how you get into the particulars of [the Cervantes] case
which is so different unless the D.A. opened the door on cross-examination, because
the number of differences as well as the internal inconsistences in the Cervantes
case do[] raise a legitimate [section] 352 issue . . . [and] I don't know how we
could effectively put on just bits and pieces of that case and not permit the D.A.
to fully expose any inconsistencies or inapplicability to our case."

The issue was revisited after Cervantes's attorneys sent a letter stating that
Cervantes would invoke his privilege against self-incrimination if called to
testify in Calkins's case. The trial court stated, "I've heard nothing so far that
leads me to believe I would change my tentative ruling," and it reiterated its
inclination that evidence about the Cervantes case would require "a full other
trial" and would be of "very little value" and thus inadmissible under section 352.
The court said it was willing to reconsider if Cervantes did testify and had
"anything new or different" to say but expressed doubt that would happen given his
intention to invoke his Fifth Amendment privilege.

Calkins's trial counsel later made an offer of proof of a connection between the
Cervantes case and this one, stating that he intended to elicit evidence that
Cervantes was found naked in the victims' home after committing the crimes, told
the police he had "no recollection of what had occurred," and told his attorneys
that before the crimes he had taken mushrooms he bought from Gabe T. Counsel argued
that "the reasonable inference is that[,] . . . at least in regard to this batch of
mushrooms, there's something that causes people to go haywire."

The prosecutor responded that Cervantes had made conflicting statements about whom
he had obtained mushrooms from and that his primary defense at trial had been
alcohol intoxication. At the trial court's invitation, the prosecutor identified
some of the evidence he would introduce in rebuttal if Calkins was permitted to
present evidence of the Cervantes incident, including testimony to establish that
Cervantes's crimes had a "sexual component," Cervantes had previously "act[ed] out
in a sexual manner," Cervantes was under the influence of multiple substances, and
Cervantes had given conflicting statements about the source of the mushrooms he
took.

The trial court again said that its "prior [section] 352 analysis" remained the
same, stating, "It sounds like any nexus, if at all, is scant. And then in terms of
the undue consumption of time, as well as . . . confus[ion] to the jury, I don't
see it as relevant, especially in the context of the testimony we've already heard.
Every person is different. Mr. Cervantes'[s] situation is completely different in
terms of motivation and prior history. . . . [¶] . . . [I]f there's evidence of
prior mutilation of women in addition to inconsistent statements, it bolsters my
view that it has nothing to do with this particular trial, and I wouldn't allow
it." The court stated that it would permit the defense to see if Cervantes invoked
his Fifth Amendment privilege but if he did "that's likely the end of it."

Cervantes did ultimately invoke his Fifth Amendment privilege outside the jury's
presence. The defense then made an additional offer of proof that included a
transcript of the older victim's testimony in Cervantes's trial, evidence that
Cervantes told one of his prior attorneys he had taken mushrooms obtained from Gabe
T., and expert declarations opining that Cervantes was under the influence of
mushrooms during his crimes. After reading the proffered materials, the trial court
ruled that evidence of the Cervantes incident was "clearly" subject to exclusion
under section 352. The court explained, "Not only is it an undue consumption of
time, [there are] so many possible motivations and unexplored avenues. All I had
[were] certain excerpts provided by the defense. What [the prosecutor] said in
response to that is that he had many other avenues that would have been explored if
those limited topics were introduced. So I'm convinced that the prior ruling was
correct."

2. The trial court did not err by excluding the Cervantes evidence.

Calkins never directly argues that the ruling was erroneous under section 352, but
instead contends that the ruling violated his federal constitutional right to
present a complete defense. We consider both arguments in an abundance of caution.

Section 352 provides that evidence may be excluded "if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." We review the trial court's
ruling under section 352 for an abuse of discretion. (People v. Waidla (2000) 22
Cal.4th 690, 724.)

Calkins maintains that evidence of the Cervantes case was relevant and admissible
to support Dr. Stalcup's opinion that Calkins was unconscious when he shot the
victims. But even if evidence is otherwise relevant and admissible, that does not
end the section 352 inquiry. Calkins argues that the evidence was not "prejudicial
to either party," but, in doing so, he ignores the multiple other grounds on which
evidence can be excluded under section 352, including ones relied on by the trial
court here: undue consumption of time and confusion of the issues. (§ 352.) As a
result, he has not demonstrated an abuse of discretion under section 352.

Calkins's more direct argument is that the trial court's ruling violated his
federal constitutional right to " 'a meaningful opportunity to present a complete
defense' " (Crane v. Kentucky (1986) 476 U.S. 683, 690), a claim we review de novo.
(See People v. Quiroz (2013) 215 Cal.App.4th 65, 70.) "[A] state court's
application of ordinary rules of evidence—including the rule stated in Evidence
Code section 352—generally does not infringe upon this right." (People v. Cornwell
(2005) 37 Cal.4th 50, 82.) Calkins bases his argument on Crane, which held that the
right to present a complete defense is violated by the exclusion of "competent,
reliable evidence bearing on the credibility of a confession when such evidence is
central to the defendant's claim of innocence." (Crane, at p. 690.) In Crane, that
standard was met where the trial court excluded evidence that the defendant sought
to introduce to discredit his confession. (Id. at pp. 685-686, 690-691.)

Here, the excluded evidence would not have tended to establish Calkins's innocence
or otherwise "impact[ed] the credibility of his defense as directly as the
exclusion of evidence that was at issue in Crane." (People v. Wright (2005) 35
Cal.4th 964, 974; see also People v. Roberts (1992) 2 Cal.4th 271, 302 [rejecting
claim under Crane because excluded evidence at issue was not "evidence 'central to
the defendant's claim of innocence' "].) Calkins argues that evidence of the
Cervantes case "was an essential part of the foundation for the unconsciousness
defense" and key to supporting Dr. Stalcup's testimony. But while the evidence may
have strengthened that defense, the trial court's ruling "did not completely
preclude him from pursuing [it]." (People v. Masters (2016) 62 Cal.4th 1019, 1079.)
Rather, Calkins was able to present, and did present, evidence that the mushrooms
could have rendered him unconscious, including expert testimony about other users
who had violent, bizarre reactions to the drug. There was no constitutional error.
C. Calkins's Claim that the Trial Court Should Have Granted Use Immunity to Gabe T.
Lacks Merit.

Calkins next argues that the trial court violated his federal constitutional rights
to compulsory process and to present a complete defense by not conferring use
immunity on Gabe T. after it found Gabe T. had a Fifth Amendment privilege not to
testify. We conclude that Calkins forfeited this claim and that, even if he had
not, the claim fails under a recent decision of our state Supreme Court.

After the defense subpoenaed Gabe T. to testify at trial, the parties learned that
he intended to invoke his Fifth Amendment privilege against self-incrimination. In
a hearing outside the jury's presence, Calkins's trial counsel expressed an
intention to elicit Gabe T.'s testimony that all the mushrooms found in his
possession came from one batch, which was the source of the mushrooms he sold to
Calkins. Given that some of the mushrooms in Gabe T.'s possession had tested
positive for MDMA, the defense sought to raise the possibility that the mushrooms
Calkins took also contained MDMA. The prosecutor said that a "foundational link"
was missing, as Calkins tested negative for amphetamines and the two sets of
mushrooms recovered from his apartment tested negative for MDMA.

Gabe T.'s attorney explained that her client "was charged with possession for sale
or selling mushrooms" in juvenile court and the case had been resolved. She voiced
concern that the statute of limitations had not run on all the crimes with which he
might be charged, such as accessory to murder. Calkins's trial counsel argued that
there was no indication that the police intended to charge Gabe T. with any other
crimes and asked the trial court to convey immunity if the prosecutor refused to do
so. When asked whether he objected to that request, the prosecutor replied that the
determination was left to the court's "independent discretion" but stated that
court-conveyed immunity was "a very rare occurrence," appropriate only if "a severe
miscarriage of justice" would otherwise result.

The District Attorney ultimately declined to offer immunity to Gabe T. The trial
court found that Gabe T. had a Fifth Amendment privilege not to testify, and Gabe
T. then invoked the privilege outside the jury's presence. Calkins did not renew
his request for the court to extend immunity to Gabe T., and the court never
explicitly ruled on the original request.

We agree with the Attorney General that Calkins forfeited this claim, because
Calkins never requested a ruling from the trial court on his request. " ' "[W]here
the court, through inadvertence or neglect, neither rules nor reserves its
ruling[,] . . . the party who objected must make some effort to have the court
actually rule. If the point is not pressed and is forgotten, [the party] may be
deemed to have waived or abandoned it, just as if [the party] had failed to make
the objection in the first place." ' " (People v. Braxton (2004) 34 Cal.4th 798,
813.) "This is an application of the broader rule that a party may not challenge on
appeal a procedural error or omission if the party acquiesced by failing to object
or protest under circumstances indicating that the error or omission probably was
inadvertent. [Citations.] ' "In the hurry of the trial many things may be, and are,
overlooked which would readily have been rectified had attention been called to
them. The law casts upon the party the duty of looking after his [or her] legal
rights and of calling the judge's attention to any infringement of them." ' " (Id.
at pp. 813-814.) Here, Calkins never asked that the court rule on his request even
after the court determined that Gabe T. could invoke his Fifth Amendment right not
to testify. As a result, Calkins forfeited the issue.

Even if the claim had been properly preserved, it would fail because of a recent
decision of our state Supreme Court. At the time Calkins filed his opening brief,
it was an open question whether a California trial court had authority to grant use
immunity to a witness. (See People v. Stewart (2004) 33 Cal.4th 425, 468 [assuming,
without deciding, that such authority existed even though characterizing it as a "
'doubtful' " proposition].) On the same day that Calkins filed his reply brief,
however, the Supreme Court issued People v. Masters, supra, 62 Cal.4th 1019, which
decisively resolved the issue by holding that "California courts have no authority
to confer use immunity on witnesses." (Id. at p. 1051.) As a result, there was no
error.

D. Calkins Is Not Entitled to Relief on His Claims of Juror Misconduct.

Finally, Calkins claims that he was denied a fair trial because of two different
instances of juror misconduct: one juror's failure to disclose involvement in a
prior criminal case, and another juror's receiving and spreading of outside
information about Calkins's gang affiliation. We conclude that in both instances
the juror misconduct was serious and gave rise to a presumption of prejudice. But
our independent review of the record ultimately persuades us that Calkins's motion
for a new trial was properly denied because there is no substantial likelihood that
any juror was actually biased against Calkins.

1. General legal standards.

A criminal defendant has a constitutional right to a trial by impartial and

unbiased jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; In
re Hitchings (1993) 6 Cal.4th 97, 110.) "A juror who conceals relevant facts or
gives false answers during the voir dire examination . . . undermines the jury
selection process," which is aimed at discovering whether prospective jurors are
impartial, and such untruthfulness constitutes misconduct. (Hitchings, at pp. 110-
111.) A juror's "receipt of information about a party or the case that was not
part of the evidence received at trial," even if inadvertent, undermines " 'the
fundamental integrity of all that is embraced in the constitutional concept of
trial by jury' " and also constitutes misconduct. (People v. Nesler (1997) 16
Cal.4th 561, 578-579 (Nesler).)

Juror misconduct is grounds for granting a new trial. (Pen. Code, § 1181, subds.
(2)-(4).) If misconduct is established, a presumption of prejudice arises. (People
v. Gamache (2010) 48 Cal.4th 347, 397; In re Hitchings, supra, 6 Cal.4th at p.
119.) As relevant here, "the presumption of prejudice is rebutted, and the verdict
will not be disturbed, if a reviewing court concludes after considering the entire
record, including the nature of the misconduct and its surrounding circumstances,
that there is no substantial likelihood that the juror in question was actually
biased against the defendant." (People v. Merriman (2014) 60 Cal.4th 1, 95.) "[I]f
it appears substantially likely that a juror is 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 defects . . . which defy analysis by "harmless-error" standards.' " (In
re Carpenter (1995) 9 Cal.4th 634, 654 (Carpenter).)

In reviewing the denial of a motion for a new trial based on juror misconduct,
"[w]e accept the trial court's credibility determinations and findings on questions
of historical fact if supported by substantial evidence. [Citations.] Whether
prejudice arose from juror misconduct, however, is a mixed question of law and fact
subject to an appellate court's independent determination." (Nesler, supra, 16
Cal.4th at p. 582.)

2. The record reveals no substantial likelihood that Juror No. 1 was actually
biased against Calkins.

a. Additional facts.
According to Calkins's motion for a new trial, Juror No. 1 reported on his jury
questionnaire that he had never "had contact with employees of the criminal justice
system," "called the police," or "been involved in a criminal case." A postverdict
investigation by the defense, however, revealed that Juror No. 1 had in fact
received deferred entry of judgment a few years before the trial after pleading no
contest to a misdemeanor count of destroying evidence. According to the motion,
Juror No. 1 had been an eyewitness to the shooting of his friend and "then
attempted to destroy evidence and lied to the police who were investigating the
case."

Neither the police report on which the motion relied for its characterization of
the offense nor Juror No. 1's questionnaire is in our record.

The trial court held a hearing to question Juror No. 1. Juror No. 1 confirmed that
he had been involved in an incident during which "[p]olice were summoned" but
nevertheless indicated on the questionnaire that he had never "called the police"
before. He explained that he believed the prior incident "didn't have to do with
any involvement in this case anyway, so [he] just didn't put it down." He also
confirmed that he had failed to mention the incident in response to another
question about whether he had ever had a positive or negative interaction with law
enforcement. Juror No. 1 stated that he had not intended to give either side an
advantage, the incident did not affect his deliberations, and he was able to be
fair to both sides.

The trial court indicated that "it certainly would have been preferable to have all
the information" and that "both sides were denied the opportunity to further
explore the incident." The court found Juror No. 1 to be credible, however, when he
said he could be fair. It therefore denied the motion for a new trial on the basis
of this juror's misconduct, stating, "I don't believe the information that he did
not provide did constitute any prejudice to Mr. Calkins. Recognizing it would have
been better to have, but the legal inquiry doesn't stop with whether [Juror No. 1]
should have given the information. The question is whether it prejudiced the
defense such that the verdict is patently unfair, and there was some manifestation
of an injustice. And I don't believe that occurred."

At oral argument, Calkins's counsel expressed the belief that the trial court did
not make a credibility determination as to Juror No. 1. In fact, right after
observing that Juror No. 1 had "indicated he could be fair," the court stated, "I
believed the witnesses - excuse me, the jurors when they indicated they could be
fair. If I didn't believe that, I would have granted the motion [for a new trial],
but I do believe they were fair, and I believed them in their testimony to the
Court."

b. Discussion.

"Intentional concealment of relevant facts or the giving of false answers by a

juror during the voir dire examination constitutes misconduct [citations], and the
occurrence of such misconduct raises a rebuttable presumption of prejudice."
(People v. Blackwell (1987) 191 Cal.App.3d 925, 929.) Although the trial court did
not make an explicit finding on this point, it apparently concluded that the
concealment was intentional (as Juror No. 1 effectively admitted) and therefore
constituted misconduct giving rise to a presumption of prejudice. The Attorney
General does not seriously challenge this conclusion, and we therefore proceed to
determine whether the record reveals a substantial likelihood that Juror No. 1 was
actually biased against Calkins.

Initially, Calkins contends that reversal is required because the trial court
applied the wrong standard, whether "the verdict [was] patently unfair," in
assessing whether the presumption of prejudice was dispelled. But even if the
court's framing of the issue was incorrect, reversal is not required because we
apply de novo review in determining whether there is a substantial likelihood of
juror bias. (People v. Green (1995) 31 Cal.App.4th 1001, 1017-1018 [trial court's
failure to determine whether presumption of prejudice rebutted "of no consequence"
because issue subject to appellate court's independent review]; see also Green v.
Superior Court (1985) 40 Cal.3d 126, 138 ["a correct decision of the trial court
must be affirmed on appeal even if it is based on erroneous reasoning"].)

Calkins claims that both the offense of destroying evidence and the failure to
disclose it suggests an unwillingness on Juror No. 1's part to follow the law, and
that this shows bias against the defense because Juror No. 1 "may have fashioned
himself something of a vigilante, obstructing justice when he felt it appropriate,
and administering personal justice under his own standards" instead of accepting
and applying the reasonable-doubt standard. This argument is speculative, as there
is nothing in the record to suggest that any such unwillingness to follow the law
would tend to benefit the prosecution instead of the defense or that Juror No. 1
was in fact biased against Calkins. (See People v. Green, supra, 31 Cal.App.4th at
p. 1018 [inappropriate to assume ex-felon would be biased in favor of defense in
absence of any evidence in record of such bias].) Moreover, the trial court found
credible Juror No. 1's claim that he was fair, a determination to which we defer.
Although Juror No. 1's willingness to conceal information when answering the
questionnaire is troubling, it did not compel a finding that he was untruthful when
he disclaimed any bias.

The primary decision on which Calkins relies, People v. Diaz (1984) 152 Cal.App.3d
926, is distinguishable. In that case, the trial court refused to discharge the
jury foreperson after learning that she had failed to disclose during voir dire
that "she had been feloniously assaulted at knifepoint during an appointed rape,"
and the defendant was convicted of assault with a knife. (Id. at p. 930.) The Court
of Appeal reversed, holding that " 'prejudice reasonably could be inferred' " from
the juror's failure to disclose the incident "because she had been the victim of a
felonious knife assault, the same crime for which she was being evaluated to sit in
judgment." (Id. at p. 936.) Here, in contrast, Calkins does not identify, and
nothing in our record reveals, any similarity between the incident Juror No. 1
failed to disclose and the charged crimes that would suggest an anti-defense bias.
In sum, there is no substantial likelihood that Juror No. 1 was actually biased
against Calkins, and the trial court therefore properly denied the motion for a new
trial based on this juror's misconduct.

3. There is no substantial likelihood of juror bias based on extraneous information

about Calkins's gang affiliation.

a. Additional facts.

Before trial, Calkins moved to exclude any evidence that he "at some time claimed
gang affiliation or association prior to the offense date in this case." In
particular, he sought to exclude evidence that he had admitted to police that he
was previously affiliated with a gang, that he had a particular gang moniker, and
that gang-related objects were found at his apartment after the shootings. The
prosecutor stated that he did not intend to introduce evidence of Calkins's gang
affiliation. The trial court, noting that it was not aware of any evidence "that
there was any retaliation, any gang-oriented, long-going dispute or anything
related to any prior events" to explain the shootings, stated that the defense
"would most likely win a [section] 352" motion should the prosecutor later seek to
introduce gang-related evidence.

A few days after the jury began deliberating, Juror No. 7 sent a note to the trial
court indicating that Juror No. 9 " 'said that her twin sister told her that
[Calkins's] family may be affiliated (gangster). Her sister told her she should try
to get off the case. Should we be worried?' " In response, the court questioned all
the jurors individually.

When asked whether she was aware of any outside communications to any jurors "about
this case," Juror No. 7 said that she "remember[ed] someone . . . saying that the
defendant was affiliated." She explained that toward the end of the trial, when
some jurors were gathered during a break, she heard Juror No. 9 say that Juror No.
9's "twin sister told her that she needs to get off the case or that she should try
to get off the case because the family is affiliated." Juror No. 7 interpreted the
term "affiliated" to mean affiliated "in a bad way, pertaining to [Juror No. 9]
should get off the case." Juror No. 7 suspected that at least a few other jurors
had heard the comment because they were all together and Juror No. 9 was not
speaking quietly. Juror No. 7 experienced some concern about whether " 'everyone
[is] looking at us when we go out to lunch or we're coming back in' " based on
Juror No. 9's comment, but she said that the comment would not affect her
deliberations and that she could be fair and impartial.

Juror No. 9 disclosed that she had shared with other jurors that there had been "a
previous trial" in the case, which she had learned from her sister. Juror No. 9 was
not sure whether she had learned what had occurred at any previous proceeding, and
she could not remember whether she had said anything about Calkins to the other
jurors. She specifically denied that the term "affiliated" had come up, saying,
"It's not a word I would commonly use, so I doubt it." Juror No. 9 said that she
had not been affected by the information she had learned from her sister and could
keep an open mind. No other juror disclosed knowledge of the sharing of any outside
information.

After the trial court finished questioning the jurors, Calkins's trial counsel
stated that the court could correct the misinformation that a previous trial had
occurred but that Juror No. 9 should be removed if she believed Calkins was "gang
affiliated." The prosecutor responded that if Juror No. 9 was going to be
dismissed for this reason, Juror No. 7 should be as well, because Juror No. 7 had
"stated it was a concern going to and from" the courtroom. The prosecutor also
observed that it was hard to predict how the information regarding affiliation
would affect these jurors, as it could incline them to either be more " 'tough' "
on Calkins or to find him not guilty out of fear of gang-related reprisals.
Calkins's counsel then amended his position and stated that "the only action really
to take is to tell Juror [No.] 9 that there hasn't been a prior trial in regard to
this case." The court agreed to do so and decided it was unnecessary to remove
either juror.

Juror No. 9 returned, and the trial court instructed her that no previous trial had
occurred. Juror No. 9 then said that she also remembered her sister saying "that
she wished [Juror No. 9] could get off" the case and "had heard that there had been
a problem before." The court reaffirmed that there had been no previous trial, and
Juror No. 9 again said that she could still be fair and impartial. The court then
instructed the jurors as a group that receiving outside information would be unfair
to the parties and that they must base their verdict only on evidence presented at
trial. It also instructed them not to discuss the case with anyone except other
jurors and not to "allow anything that happens outside of the courtroom to affect
[their] decision."

After the jurors left the courtroom, Calkins moved for a mistrial. The trial court
indicated that it would remove Juror No. 9 if the parties agreed, but the
prosecutor argued that Juror No. 7 should be dismissed instead. The court denied
"both the requests to remove one juror" and denied Calkins's mistrial motion.

In his motion for a new trial, Calkins argued that Juror No. 9's receipt of outside
information and her passing it to Juror No. 7 was juror misconduct justifying a new
trial. Before the hearing on the motion, a public defender investigator filed a
declaration of due diligence about his attempts to serve a subpoena on Juror No.
9's sister. The investigator averred that when he spoke to the sister by telephone,
she said she had read a story in a local newspaper about Calkins's "having been
accused of being [a] gang member in another case in which [there] was a hung jury
or he was acquitted and that there might have been some juror or audience
misconduct mentioned." The sister mentioned the story to Juror No. 9 "before they
started deliberating (she was not 100% sure)" and asked "if there were any problems
with people (family members of people involved) in the audience and [the juror]
said no."

At a hearing on Calkins's motion for a new trial, Juror No. 9's sister testified
that she remembered reading in the newspaper that "the trial had been planned
earlier and . . . was held over because of a problem with evidence or something."
She also read that Calkins was in a gang or affiliated with a gang. The sister
remembered asking Juror No. 9 whether "there [were] any concerns leaving the
courthouse with problems related to the case," but the sister said she could not
recall whether she had specifically told the juror that she was worried because of
Calkins's gang involvement.

The trial court denied the motion for a new trial based on the outside information
about Calkins's gang affiliation. The court effectively agreed that Juror No. 9's
conversation with her sister constituted misconduct. But it found that Juror No. 9
was not actually biased, observing, "Juror [No.] 9 indicated she could continue on,
could be fair, and we dispelled her of the falseness of the information in her mind
at the time[.] . . . If there were indeed those fears, I highly suspect [Juror No.
9] would have asked to be removed, but she didn't and she promised she could be
fair, and I believed her."

b. Discussion.

We begin by accepting Calkins's position that Juror No. 9's conversation with her
sister about the case and Juror No. 9's sharing outside information with at least
one other juror constituted misconduct, as the trial court found. (See Hitchings,
supra, 6 Cal.4th at p. 118 [a juror's conversation with anyone " 'on any subject
connected with the trial' " before case submitted constitutes "serious
misconduct"].) In particular, we will assume Calkins is correct that Juror No. 9's
sister disclosed that he was in or affiliated with a gang, a point the Attorney
General does not seriously dispute. Although Juror No. 9's actions are troubling,
our review of the record convinces us that there is no substantial likelihood of
actual bias.

When juror misconduct based on outside information about a case is at issue, a

substantial likelihood of actual bias may be demonstrated in 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." (Nesler,
supra, 16 Cal.4th at pp. 578-579.) "The first of these tests is analogous to the
general standard for harmless error analysis under California law. Under this
standard, a finding of 'inherently' likely bias is required when, but only when,
the extraneous information was so prejudicial in context that its erroneous
introduction in the trial itself would have warranted reversal of the judgment."
(Carpenter, supra, 9 Cal.4th at p. 653; see also People v. Danks (2004) 32 Cal.4th
269, 303.) But "even if the extraneous information was not so prejudicial, in and
of itself, as to cause 'inherent' bias under the first test, the totality of the
circumstances surrounding the misconduct must still be examined to determine
objectively whether a substantial likelihood of actual bias nonetheless arose.
Under this second, or 'circumstantial,' test, the trial record is not a dispositive
consideration, but neither is it irrelevant. All pertinent portions of the entire
record, including the trial record, must be considered," including "the nature of
the juror's conduct, the circumstances under which the information was obtained,
the instructions the jury received, the nature of the evidence and issues at trial,
and the strength of the evidence against the defendant." (Carpenter, at p. 654.)

Although Calkins does not specifically refer to the first test, he appears to
center his argument on it by arguing that actual bias was demonstrated because the
information about his gang affiliation was "highly inflammatory" and likely to
prompt the conclusion that he "had a violent character in keeping with [that]
affiliation and was, therefore, more likely to have committed the shootings
intentionally." He primarily relies on People v. Holloway (1990) 50 Cal.3d 1098,
which found that the presumption of prejudice from juror misconduct was not
rebutted in a murder case where a juror learned about the defendant's prior
conviction for assault, evidence the trial court had previously ruled inadmissible
under section 352. (Holloway, at pp. 1107, 1111-1112.) We are mindful that the
trial court here indicated it would probably exclude evidence of Calkins's gang
affiliation were the defense to bring a section 352 motion. But "a [trial] court's
in limine determination of prejudice is not the same as the determination that we
must make on appeal" to decide whether a substantial likelihood of bias is
demonstrated based on inherently prejudicial extraneous information. (Holloway, at
p. 1112; see In re Boyette (2013) 56 Cal.4th 866, 892-893.) Thus, even if we assume
that the gang-affiliation information's admission would have been erroneous under
section 352, we must still determine whether it "was so prejudicial in context that
its erroneous introduction in the trial itself would have warranted reversal of the
judgment." (Carpenter, supra, 9 Cal.4th at p. 653.)

This position is in tension with Calkins's position below that only Juror No. 9
needed to be dismissed: if the information about Calkins's gang affiliation was so
inherently prejudicial, it is far from apparent why Juror No. 7 should not have
been dismissed as well. Moreover, after the possibility of dismissing Juror No. 7
arose, Calkins's trial counsel indicated that an admonishment to Juror No. 9 that
there had not been a prior trial was sufficient to address the situation.

Because Calkins does not follow the traditional framework in making his claim, he
does not explicitly argue that the extraneous information would have required
reversal if it had been introduced at trial. He does argue, however, that the
information was "prejudicial" because "motive was critical to this case" and
"evidence of gang membership is generally viewed as providing a motive for
otherwise senseless violence." In particular, Calkins argues that jurors privy to
the outside information would have been more likely to accept the prosecution's
theory that he shot Richard P. because Richard P. was making fun of him, as "gang
members are notorious for shooting people for seemingly trivial motives such as a
showing of disrespect." Of course, the jury did not return a conviction for Richard
P.'s killing, and Calkins does not explain how we are to evaluate the prejudice
issue in light of that. In any event, we are unwilling to assume that had evidence
of gang affiliation been introduced at trial, the jury would have been more likely
to convict Calkins of killing Richard P. Although it is unclear why the jury
returned convictions for the shootings of only Cameron S. and Sarah B., motive
apparently was not determinative: there was even less evidence of a motive to kill
either of them than there was of a motive to kill Richard P. As Calkins has not
shown that the outside information would have required reversal if admitted, it was
not inherently prejudicial.

Having concluded that no substantial likelihood of actual bias is demonstrated

under the "inherently prejudicial" test, we turn to whether the totality of the
circumstances nevertheless establishes such a likelihood. (Nesler, supra, 16
Cal.4th at pp. 578-580.) Besides the "highly inflammatory" nature of the extraneous
information, the only other factor Calkins relies on is that Juror No. 9 relayed
the information to Juror No. 7. Nesler observed that "[a] juror's disclosure of
extraneous information to other jurors tends to demonstrate that the juror intended
the forbidden information to influence the verdict and strengthens the likelihood
of bias." (Id. at p. 587.) In Nesler, however, the offending juror shared the
extraneous information with other jurors "during deliberations when she disagreed
with them." (Id. at p. 586.) She "made reference to extrajudicial evidence despite
admonitions from other jurors not to do so" and brought up that evidence
specifically when "attempting to change the views of other jurors" and "to persuade
the jury to disregard the opinions of [the] defendant's experts." (Id. at pp. 588-
589.) In holding that there was a substantial likelihood of bias, Nesler
distinguished Carpenter, supra, 9 Cal.4th 634, which held there was no substantial
likelihood of bias where a juror received outside information but did not reveal it
to other jurors, "stress[ing] that nothing about the juror's conduct indicated that
she had 'failed to base her verdict solely on the evidence.' " (Nesler, at pp. 586-
587, 589, quoting Carpenter, at p. 656.)

Although Juror No. 9 did reveal the gang-affiliation information to at least one
other juror, as in Carpenter, supra, 9 Cal.4th 634, there is no suggestion that she
did so to try to influence deliberations. The record demonstrates that the
extraneous information's primary significance to both her and Juror No. 7 was that
it raised a concern about the safety of serving on the jury—not that the
information tended to suggest Calkins was guilty or should otherwise affect the
case's outcome. There is no evidence that Juror No. 9 ever mentioned the
information during deliberations or otherwise used it to try to influence the
verdict. Moreover, the trial court found Juror No. 9 credible when she stated that
the information would not affect her consideration of the case. Given the absence
of evidence that Juror No. 9 intended the information to affect the jury's
deliberations or any other circumstances suggesting she harbored an actual bias, we
cannot disregard the court's finding on this point.

Finally, we find it significant that the trial court reiterated instructions

related to relying only on the evidence presented after it finished questioning the
jurors about the issue of outside information. "The presumption of prejudice may be
dispelled by an admonition to disregard the improper information. [Citations.] We
generally presume that jurors observe such instructions." (People v. Pinholster
(1992) 1 Cal.4th 865, 925.) Calkins argues that the subsequent instructions could
not cure the harm because of the gang-affiliation information's "inflammatory
nature." As we have said, that information was not inherently prejudicial. And even
if it were, we would not be compelled to conclude that the instructions could not
cure the harm: Holloway, which held that the outside information at issue was
inherently prejudicial, emphasized that its holding might have been different had
the juror misconduct "been revealed in time for the [trial] court to have taken
corrective steps to cure it through admonition or by other prophylactic measures."
(People v. Holloway, supra, 50 Cal.3d at pp. 1106, 1111-1112.)

In sum, the gang-affiliation information was not inherently prejudicial, and the
totality of the circumstances does not reveal a substantial likelihood of actual
bias.

c. The failure to ask one juror about outside information was harmless.

Calkins alternatively argues that the trial court "failed to make an adequate
inquiry into the extent of the misconduct" because the court failed to question one
of the jurors about the receipt of extraneous information. This claim lacks merit
because Calkins cannot demonstrate that any prejudice resulted.

When the trial court questioned all the jurors during deliberations about potential
misconduct, it asked each juror except Juror No. 2 whether he or she had received
any outside information about the case. Juror No. 2 had sent a note to the court
around the same time expressing concern about Juror No. 7's participation in
deliberations, and the court asked Juror No. 2 questions only about that topic.
The court's concluding question was, "Is there anything else you haven't already
either told us in writing or here orally in open court?," to which Juror No. 2
responded, "No." The court then asked whether the parties' attorneys had any
further questions for Juror No. 2, and both responded that they did not.

" '[O]nce the [trial] court is put on notice of the possibility a juror is subject
to improper influences it is the court's duty to make whatever inquiry is
reasonably necessary to determine if the juror should be discharged.' " (People v.
Cleveland (2001) 25 Cal.4th 466, 477.) "Although courts should promptly investigate
allegations of juror misconduct 'to nip the problem in the bud' [citation], they
have considerable discretion in determining how to conduct the investigation. 'The
court's discretion in deciding whether to discharge a juror encompasses the
discretion to decide what specific procedures to employ including whether to
conduct a hearing or detailed inquiry.' " (People v. Prieto (2003) 30 Cal.4th 226,
274.)

Calkins argues that the trial court abused its discretion by not asking Juror No. 2
about receiving outside information. The court questioned every other juror about
the topic, and it appears that the court's omission as to Juror No. 2 was an
oversight. Even if we were to conclude that this omission constituted an abuse of
discretion, however, Calkins fails to demonstrate the requisite prejudice. (See
People v. Prieto, supra, 30 Cal.4th at p. 275.) Although he may not have waived
this claim through his tacit agreement below that the trial court's inquiry of
Juror No. 2 was sufficient, his failure to ask Juror No. 2 any follow-up questions
when he had the opportunity to do so means that there is no evidence in the record
to support his claim that "further inquiry might have shown that [Juror No. 2] also
heard extrinsic information." (See People v. Farnam, supra, 28 Cal.4th at pp. 141-
142 [inquiry adequate where "trial court made whatever inquiries were requested by
the defense, and terminated questioning only after the prosecution and the defense
each affirmatively indicated that no further inquiry was desired"]; People v. Davis
(1995) 10 Cal.4th 463, 535-536 [defendant's claim that juror could have heard
extrinsic information was speculative where defendant agreed below "that no further
inquiry [of that juror] was necessary"].) Juror No. 7 told the court that she
thought at least a few jurors besides her had heard Juror No. 9's comments about
gang affiliation, but no other juror admitted to awareness of any outside
communications about the case when asked. In the absence of any more concrete
indication of how Juror No. 2 would have responded to further inquiry, Calkins is
not entitled to reversal based on the court's failure to question that juror about
receiving outside information.

As the Attorney General does not argue otherwise, we will assume that Calkins did
not waive this claim despite the fact his trial counsel did not ask Juror No. 2 any
additional questions when given the opportunity to do so. (See People v. Cowan
(2010) 50 Cal.4th 401, 506-507 [no action by defendant required to preserve claim
that "trial court erred by failing, sua sponte, to conduct an adequate inquiry"
into possible juror misconduct].) --------

III.
DISPOSITION
The judgment is affirmed.

/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.
Make your practice more effective and efficient with Casetext’s legal research
suite.
Get a Demo
Casetext research
Parallel Search
Compose
Pricing
Switch
Big firm
Coverage
SmartCite
Public records search
Partnerships and Resources
Law school access
Bar associations
About us
Jobs
Blog
Podcast
News
Twitter
Facebook
LinkedIn
Instagram
Help articles
Customer support
Contact sales
Privacy
Terms
© 2021 Casetext Inc.
Casetext, Inc. and Casetext are not a law firm and do not provide legal advice.