P. v. Gott

Filed 1/8/07 P. v. Gott CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JEREME MICHAEL GOTT,
Defendant and Appellant.
F048866
(Super. Ct. No. F04907237-2)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Lawrence
Jones, Judge.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and William K.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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Jereme Michael Gott was convicted of rape and forcible oral copulation. (Pen.
Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2).)1 He argues that juror misconduct requires
reversal of the judgment and that the trial court erred in imposing consecutive sentences.
We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Gott and his accuser, 17-year-old S.F., attended the wedding of a mutual friend.
The two spoke at various times throughout the evening. Gott asked S.F. several times if
she wanted to go for a walk in the woods surrounding the community center where the
wedding reception was held. S.F. initially refused but then agreed to accompany Gott as
the bride and groom left the reception. While in the woods the two had intercourse. S.F.
left after the encounter and drove home, where relatives found her crying hysterically.
S.F. accused Gott of raping her and forcing her to copulate him orally. The
sheriff’s department was called and S.F. was transported to the hospital for a sexual
assault examination. She received an injury to her right eye during the encounter, as well
as several suction type injuries to her neck and right breast. Although S.F. consistently
claimed she was raped, she initially failed to identify Gott as the perpetrator and
misrepresented some of the circumstances.2 Two days after the encounter, S.F. identified
Gott to the police and gave an account of the encounter that essentially was consistent
with her trial testimony.
Gott gave a statement to the police claiming the encounter was consensual and he
did not know S.F. was only 17. He pointed out that S.F. did not identify him
immediately as her assailant and relied on witnesses who saw them together before and
1 All further statutory references are to the Penal Code unless otherwise stated.
2 For example, S.F. initially claimed she was dragged to the woods by an unknown
man, instead of admitting she willingly accompanied Gott to the woods.

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after the encounter. Some of these witnesses testified that S.F. looked fine when the two
returned to the community center after the encounter.
In addition, the prosecutor introduced evidence pursuant to Evidence Code section
1108 that Gott previously had attempted to sexually assault another woman, but was
interrupted when a friend came to the aid of the woman.
Gott was charged with rape by force or fear (§ 261, subd. (a)(2)), oral copulation
by force or fear (§ 288a, subd. (c)(2)), dissuading a witness by force or threat (§ 136.1,
subd. (c)(1)), and sexual penetration by force or fear (§ 289, subd. (a)(1)). The jury
found Gott guilty of rape and forced oral copulation, but found him not guilty of the other
two counts.
Gott moved for a new trial alleging juror misconduct. The trial court denied the
motion and sentenced Gott to consecutive midterm sentences for a total term of 12 years.
DISCUSSION
I. Juror Misconduct
Gott argues the trial court erred in denying his motion for a new trial based on
juror misconduct. He urges us to reverse the judgment and remand the matter for a new
trial.
“An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘ “ capable and willing to decide the case solely on the evidence
before it” ’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) The right to
an impartial jury means the “defendant is ‘entitled to be tried by 12, not 11, impartial and
unprejudiced jurors. “Because a defendant charged with a crime has a right to the
unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot
stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.]”
(People v. Nesler (1997) 16 Cal.4th 561, 578.)

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Juror misconduct occurs when an event suggests that one or more of the jurors
were influenced by improper bias. “When the overt event is a direct violation of the
oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a
juror conceals bias on voir dire, consciously receives outside information, discusses the
case with nonjurors, or shares improper information with other jurors, the event is called
juror misconduct.” (In re Hamilton, supra, 20 Cal.4th at p. 294.)
Gott claims two types of misconduct occurred in this case, both involving Juror
No. 23. The first claim of misconduct relates to the concealment of information during
voir dire. The second claim relates to the sharing of improper information with other
jurors.
The facts that form the basis for Gott’s claims are not disputed: Juror No. 23
failed to disclose during voir dire that she volunteered for approximately one year as a
rape crisis counselor. In her declaration filed in support of the opposition to the motion
for new trial, Juror No. 23 stated that in the late 1980’s she volunteered for a rape
counseling service center in Fresno County. She did not volunteer on a full-time basis,
but spoke to alleged sexual assault victims on occasion. She received training to act as a
volunteer. She quit volunteering after approximately one year because she did not care
for the work. She has not had contact with victims of sexual assault since that time. She
did not disclose this service during voir dire because she never was asked about her prior
volunteer experience and did not understand questions about past employment to include
volunteer service. She denied any bias and claimed she followed the trial court’s
instructions throughout the trial.
Declarations from other jurors established that Juror No. 23 disclosed her
volunteer experience to the jurors both before and during deliberations. Juror No. 23 also
stated during deliberations that many rape victims do not know how to act after the rape.
The trial court, after ruling on the admissibility of the declarations submitted on
behalf of Gott, found that Juror No. 23 did not intentionally conceal that she had acted as

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a volunteer rape counselor in the past and that no misconduct occurred. The trial court
found no indication that Juror No. 23 was biased.
In making its ruling, the trial court identified a three-step process that it must
follow in reaching a decision. (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.)
We will follow the same procedure in reviewing the matter.
A. Admissibility of evidence
The first step in the analysis is to determine the admissibility of the evidence
submitted in support of the motion, in this case the declarations of various jurors. Our
task is driven by Evidence Code section 1150, which limits the evidence that may be
considered in determining whether juror misconduct occurred.
“Evidence Code section 1150, subdivision (a), provides: ‘Upon an inquiry
as to the validity of a verdict, any otherwise admissible evidence may be
received as to statements made, or conduct, conditions, or events occurring,
either within or without the jury room, of such a character as is likely to
have influenced the verdict improperly. No evidence is admissible to show
the effect of such statement, conduct, condition, or event upon a juror either
in influencing him to assent or to dissent from the verdict or concerning the
mental processes by which it was determined.’ (Italics added.)
“This statute distinguishes ‘between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the
individual juror, which can be neither corroborated nor disproved ....’
[Citation.] ‘This limitation prevents one juror from upsetting a verdict of
the whole jury by impugning his own or his fellow jurors’ mental processes
or reasons for assent or dissent. The only improper influences that may be
proved under [Evidence Code] section 1150 to impeach a verdict, therefore,
are those open to sight, hearing, and the other senses and thus subject to
corroboration.’ [Citations.]
“‘ “[A] verdict may not be impeached by inquiry into the juror’s
mental or subjective reasoning processes, and evidence of what the juror
‘felt’ or how he understood the trial court’s instructions is not competent.” ’
[Citations.]” (People v. Steele (2002) 27 Cal.4th 1230, 1260-1261.)
Gott challenges only one evidentiary ruling made by the trial court. The trial court
struck from the declaration of Juror No. 5 the following statement: “Also on the first day

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of deliberations, Random Juror #23 held up a picture of the ‘victim’s’ neck with the
hickeys and said ‘Random Juror #3 and #38 think this is normal sex.’” Gott argues this
evidence is nothing more than a statement made during deliberations and thus is
permitted by Evidence Code section 1150.
We conclude there was no error in the trial court’s ruling. While the stricken
evidence is a statement made by Juror No. 23, there is no admissible use for the
statement. The statement appears to be consistent with the give and take we expect a jury
to undertake during jury deliberations. To the extent that Gott claims that this statement
shows Juror No. 23’s view of the evidence, it is inadmissible under Evidence Code
section 1150 because it is an example of the juror’s mental processes. The statement
does not have any relevance to the question of Juror No. 23’s bias. The trial court
properly refused to consider the statement.
B. Occurrence of misconduct
1. Failure to disclose
The second step in the analysis is to determine whether the admissible facts
establish juror misconduct. To summarize, Juror No. 23 had worked for one year as a
volunteer at a rape counseling service center 15 years before the trial. She received
training to act as a volunteer, but did not volunteer on a full-time basis. She spoke with
several alleged rape victims, but was not required to assess their credibility. Juror No. 23
stopped volunteering after one year, deciding she did not like the work. She did not
disclose her volunteer work during voir dire because she did not believe the information
was responsive to any question asked of her.
The trial court determined there was not misconduct and, if the information should
have been disclosed, the failure to do so was inadvertent.
“‘Whether a failure to disclose is intentional or unintentional and whether a juror
is biased in this regard are matters within the discretion of the trial court. Except where
bias is clearly apparent from the record, the trial judge is in the best position to assess the

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state of mind of a juror or potential juror on voir dire examination. [Citations.]’”
(People v. San Nicolas (2004) 34 Cal.4th 614, 644.) Our task, then, is to determine
whether the trial court abused its discretion in concluding (1) Juror No. 23 did not
conceal information during voir dire, and (2) if Juror No. 23 should have disclosed her
prior volunteer service, the failure to disclose was inadvertent. “A trial court abuses its
discretion when its ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]” (People
v. Waidla (2000) 22 Cal.4th 690, 713-714.)
Considering the importance of voir dire, a strong argument could be made that
Juror No. 23 should have disclosed her volunteer service when questioned about her prior
work history. “Voir dire is the crucial means for discovery of actual or potential juror
bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions
truthfully.” (In re Hamilton, supra, 20 Cal.4th at p. 295.) Because voir dire is so crucial
to the jury selection process, “jurors are required to be cooperative, and should volunteer
information about any matter which could be construed as rendering them biased.”
(Cabe v. Superior Court (1998) 63 Cal.App.4th 732, 741-742.) Juror No. 23’s failure to
disclose information about her volunteer service could be construed as a violation of the
spirit of cooperation required of jurors.
We need not resolve this issue because substantial evidence supports the trial
court’s conclusion that Juror No. 23’s failure to disclose her volunteer service was
inadvertent. It is not outside the bounds of reason to accept Juror No. 23’s assertion that
she did not believe information about her volunteer service was responsive to any
question posed. No juror was asked about his or her volunteer service, or whether he or
she had ever worked in a field related to counseling rape victims. Instead, the questions
related to witnesses, people in law enforcement, work history, and whether the potential
juror was ever a victim of a crime or related to anyone who had been the victim of a
crime. On this record, we cannot conclude the trial court abused its discretion in

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concluding that there was no misconduct because any failure to disclose was at most
inadvertent.
2. Injecting personal experience into deliberations
As a second ground of misconduct, Gott argues Juror No. 23 injected her personal
experience into deliberations based on the following statement: “[Juror] #23 told us that
in her experience as a rape counselor, she had learned that many victims do not know
how to act after they have been assaulted.”3
“It is not improper for a juror, regardless of his or her educational or employment
background, to express an opinion on a technical subject, so long as the opinion is based
on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily
informed by their life experiences, including their education and professional work. A
juror, however, should not discuss an opinion explicitly based on specialized information
obtained from outside sources. Such injection of external information in the form of a
juror’s own claim to expertise or specialized knowledge of a matter at issue is
misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963.)
The Supreme Court addressed a similar issue in People v. Steele, supra, 27 Cal.4th
1230. The defendant argued that jurors with military experience and medical experience
offered their expertise during deliberations. While discussing the issue, the Supreme
Court made the following pertinent observation:
“A juror may not express opinions based on asserted personal expertise that
is different from or contrary to the law as the trial court stated it or to the
evidence, but if we allow jurors with specialized knowledge to sit on a jury,
and we do, we must allow those jurors to use their experience in evaluating
and interpreting that evidence. Moreover, during the give and take of
deliberations, it is virtually impossible to divorce completely one’s
background from one’s analysis of the evidence. We cannot demand that
jurors, especially lay jurors not versed in the subtle distinctions that
3 Juror No. 5 made a similar claim in his declaration.

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attorneys draw, never refer to their background during deliberations.
‘Jurors are not automatons. They are imbued with human frailties as well
as virtues.’ [Citation.]
“A fine line exists between using one’s background in analyzing the
evidence, which is appropriate, even inevitable, and injecting ‘an opinion
explicitly based on specialized information obtained from outside sources,’
which we have described as misconduct. [Citation.]” (Id. at p. 1266.)
The Supreme Court found the trial court did not abuse its discretion in finding no
misconduct primarily because the evidence at trial was consistent with the statements
alleged to constitute misconduct. Gott finds himself in the same position.
Eric Hickey, Ph.D., testified as an expert on behalf of the prosecution. Hickey
explained that it was a popular misconception that if a woman is raped she will report it
to the police. He explained that research suggests that approximately 75 percent of rapes
are not reported to the police. Included in the many reasons for not reporting a rape are
fear of retaliation, embarrassment, fear of being victimized by the court system, and fear
of the reaction of friends and family. Whether a woman reports a rape depends on a
variety of factors, including coping skills, stress level, family support, community
support, education level, and resources. Many victims are confused because it is a unique
experience, they feel alone, and they are not certain of what they should do or to whom
they can turn.
Juror No. 23’s statement that many victims do not know how to act after being
raped is nothing more than a summary of Hickey’s testimony. That Juror No. 23
prefaced her statement by referring to her experience as a rape crisis counselor did not
inject her personal expertise into deliberations. Juror No. 23’s statement was a
permissible use of one’s background to examine the evidence. There was no misconduct
and the trial court did not abuse its discretion in so finding.
C. Prejudice
“[A]n 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. Moreover,

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the juror’s 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.) The Supreme
Court has stated on one occasion that the analysis for deciding whether the potential juror
was biased is similar to the analysis for deciding whether a juror may be challenged for
cause. (People v. Nesler, supra, 16 Cal.4th at p. 581.)
We are familiar with the numerous cases that have declared that in a juror
misconduct case there is a presumption of prejudice that the prosecution must overcome.
(See, e.g., In re Malone, supra, 12 Cal.4th at pp. 963-964.) But these cases apply when
there has been a finding of juror misconduct. We are bound, however, by the trial court’s
conclusion that there was no misconduct in this case because the failure to disclose was
inadvertent.
Our review of the trial court’s conclusion that Juror No. 23 was not biased is again
reviewed for an abuse of discretion. (People v. San Nicolas, supra, 34 Cal.4th at p. 644.)
A review of the entire record in this case convinces us that the trial court did not abuse its
discretion.
We, like the trial court, do not rely on Juror No. 23’s assertion that she was not
biased, as such assertion violates Evidence Code section 1150. Instead, we look at the
facts that can be discerned from the admissible portions of the declarations.
Juror No. 23’s volunteer service occurred over 15 years before the trial. She
volunteered at the rape counseling service for only one year. These facts would not have
supported a challenge for cause. Nor do they establish that Juror No. 23 was biased
against people accused of rape, or biased against a consent defense to accusations of rape.
While perhaps unfortunate that trial counsel was not afforded the opportunity to examine
these issues in voir dire or, if deemed necessary, use a peremptory challenge, this record
does not support a conclusion that the trial court abused its discretion in concluding that
Juror No. 23 was not biased.

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II. Imposition of Consecutive Sentences
The trial court imposed consecutive sentences for the two counts for which Gott
was convicted. Gott contends that in so doing the trial court violated his Sixth
Amendment right to a jury trial as explained in Blakely v. Washington (2004) 542 U.S.
296. The California Supreme Court has rejected this challenge. (People v. Black (2005)
35 Cal.4th 1238.) We are bound by this precedent (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455), even though the issue is currently pending before the
United States Supreme Court in Cunningham v. California (2006) ___ U.S. ___ [S.Ct.
1329].
DISPOSITION
The judgment is affirmed.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
GOMES J.

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