P. v. Lavender

Filed 7/10/12 P. v. Lavender CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FLOYD LAVENDER et al.,
Defendants and Appellants.
D057655
D057686
(Super. Ct. Nos. JCF21566,
JCF21567)
APPEAL from a judgment of the Superior Court of Imperial County, Donal B.
Donnelly, Judge. Reversed.
A jury convicted defendants Floyd Lavender and Michael Gaines of the
kidnapping (Pen. Code,1 § 207, subd. (a)) and first degree murder (§ 187, subd. (a)) of
Courtney Bowser, and the torture (§ 206) of Bowser and two other victims (Kristen
Martin and Michael Hughes) during the same alleged crime spree. The court sentenced
each defendant to an indeterminate term of 25 years to life on the murder charge and a
1 All further statutory references are to the Penal Code unless otherwise specified.

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consecutive five-year determinate term for the kidnapping conviction. The court also
sentenced each defendant to three life terms on the torture counts, to run concurrently
with each other but consecutive to the term for the murder conviction.
On appeal, defendants argue there was insufficient evidence to support the
convictions, and there were a host of other errors, including the claim the jury engaged in
prejudicial misconduct, because the jurors discussed during deliberations the adverse
inference to be drawn from fact the defendants did not testify on their own behalf, and it
was therefore error to deny their new trial motion based on juror misconduct. They also
assert (1) the pretrial identification procedures were unduly suggestive and therefore
tainted the in-court identifications; (2) the court erroneously instructed the jury under
CALCRIM No. 315 that a witness's level of confidence in his or her identification is a
factor to be weighed when assessing the accuracy of that identification; (3) the court
erroneously admitted expert testimony that relied on hearsay in violation of Crawford v.
Washington (2004) 541 U.S. 36 and Melendez-Diaz v. Massachusetts (2009) 557 U.S.
305; (4) the prosecutor engaged in acts of misconduct during closing argument, including
adverting to defendants' failure to testify; and (5) because of the weakness of the
evidence, these errors and misconduct should warrant a finding that there was cumulative
error that rendered defendants' trial fundamentally unfair.
We conclude that, although there is sufficient evidence from which a jury could
have found defendants guilty, the misconduct by this jury in discussing the adverse
inference to be drawn from defendants' failure to testify was presumptively prejudicial,

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and the record in this case is inadequate to rebut that presumption. Accordingly, we
reverse the judgment and remand the matter for a new trial.2
FACTUAL BACKGROUND
In late August 2003, Bowser's lifeless body was found in an irrigation canal in
Imperial County, California, although it remained unidentified for two and one-half
years. The prosecution's theory of how she died, and the identities of the persons
responsible for placing her body into the canal, was diametrically opposed to the defense
theory of events. The prosecution, relying largely on the testimony of a group of
methamphetamine users (including Martin and Hughes) with Bowser when she was last
seen alive, alleged defendants became enraged when one of the methamphetamine users
stole valuable checks belonging to defendants, and that they tortured Bowser, Martin and
Hughes (and ultimately murdered Bowser) in an effort to recover the checks.
In contrast, the defense argued Bowser had engaged in a multiple-day
methamphetamine party with the prosecution's principal percipient witnesses, and then
died from a drug overdose, and these witnesses then panicked and disposed of her body.
The defense argued the numerous discrepancies (both internally and when compared to
other evidence) in the versions given by prosecution witnesses showed that the
methamphetamine party participants, who had remained silent for many years about
2 Because we reverse because of juror misconduct, we do not address the balance of
defendants' claims of error except for their claims of insufficient evidence, because these
claims, if successful, would bar retrial under double jeopardy principles. (See, e.g.,
People v. Seel (2004) 34 Cal.4th 535, 550.)

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Bowser's disappearance, waited until her body was identified to concoct a story designed
to scapegoat the two African-American defendants for Bowser's death.
A. Prosecution Version
The Methamphetamine Party
While residing at Juvenile Hall, Martin met Hughes and they became friends.
Martin also met Thayne Tolces at Juvenile Hall. Tolces and Hughes were longtime
friends. Hughes was released from Juvenile Hall on August 2, 2003, Tolces was released
from Juvenile Hall three days later, and Martin was released from Juvenile Hall on
August 14, 2003.
Martin visited Hughes and Tolces (either the day Martin was released from
Juvenile Hall or the following day) at an apartment in Palm Desert, California, where
Hughes and Tolces were living. They decided to visit Angela Vereen at her apartment.
When they arrived at Vereen's apartment, Bowser was already there. Vereen supplied the
group with methamphetamine. Hughes believed they spent the better part of the next
four days3 playing video games and consuming methamphetamine.
3 In contrast to Hughes, Tolces and Martin believed they spent only one evening at
Vereen's apartment, while Vereen believed it was a day or two but she could not
remember.

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The Theft and Defendants' Involvement
At some point, Vereen noticed that some "blank" American Express traveler's
checks, which she had left on her desk, were missing.4 Gaines had entrusted these blank
checks to Vereen a few days earlier.5 Vereen immediately called Gaines to report the
suspected theft. Defendants were angry because a "high-powered" person from Los
Angeles was coming to get the checks, and if the checks could not be produced, they
would be "capped." Vereen suspected one of the meth users might have taken the
checks.6 Vereen then called Hughes at his apartment and told Hughes that he, Tolces
and Martin needed to return to her apartment right away.7
4 Martin testified the checks were extremely valuable, because Vereen at some point
told her the checks were worth $250,000, even though (according to Vereen) the checks
were blank. The genesis of these blank checks is unclear, because the prosecution
produced no evidence of any reported thefts of blank traveler's checks. On cross-
examination, Vereen (who testified on direct examination she had only met Gaines "a
few times" and "all those meetings [were] pretty much drug transactions"), could not
articulate any reason why Gaines would have entrusted her with stolen travelers checks
for safekeeping.
5 Vereen was interviewed by police on multiple occasions. In one interview, she
told police she had been holding the checks for about 45 days. The precise number of
checks she claimed to have received from Gaines also varied.
6 Vereen told police in February 2008 that she had shown the blank checks to
Tolces and Hughes because Gaines had asked her if she knew anyone who might be able
to cash them, and Vereen therefore asked Tolces and Hughes if they could cash them.
Tolces testified the first time he met Gaines was at Vereen's apartment, where they
discussed whether Tolces (or anyone he knew) had the ink necessary for forging the
checks.
7 According to Tolces's version, "the girls" (Martin and Bowser) were not with him
and Hughes when Vereen contacted them by telephone demanding they return, and that it

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As Hughes and Tolces were climbing the stairs towards Vereen's apartment,
Vereen was yelling at them, saying, "You guys fucked up. . . . Where are the checks at?"
and "[Gaines is] coming over [here right] now so you guys messed up." Hughes got
apprehensive and returned to his own apartment, but Tolces decided he would stay to talk
with Vereen to assure her he had not taken anything. While Tolces was still at the bottom
of the stairs, Gaines arrived and they walked up together and entered Vereen's
apartment.8 Tolces recalled that Martin was already inside the apartment when he and
Gaines walked inside. Lavender arrived soon after.9
After some discussion, Gaines obtained a gun and then took Tolces to look for
Bowser. They went to an apartment occupied by "Renn," a former boyfriend of Bowser,
who told them Bowser might be at a nearby apartment. Tolces and Gaines went to that
apartment and Gaines knocked or kicked the door open, brandished his gun, and took
Bowser from the apartment. They then returned to, and left Bowser at, Vereen's
was he and Hughes who then went to Vereen's apartment. However, Martin's version
was that she was at Hughes's apartment with Tolces and Hughes when the telephone call
from Vereen came in, and she could not remember if just she and Hughes responded by
going to Vereen's apartment, or whether Tolces also went. Hughes's version was that he
did not voluntarily respond to Vereen's demand, but that he and Tolces (but not Martin)
were later forced by Gaines to accompany Gaines to Vereen's apartment.
8 Tolces acknowledged he had told police during an interview that Gaines and
Lavender had taken him to Vereen's apartment at gunpoint, but claimed his memory at
trial was better than it was at the time of the interview.
9 Martin's recollection was that she arrived at Vereen's apartment with Hughes, and
Tolces was already there when she arrived. Tolces believed both Martin and Bowser had
stayed at Vereen's apartment and were already there.

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apartment.10 Gaines then took Tolces with him to get Hughes. Tolces attracted
Hughes's attention by tossing a small rock against a window of Hughes's apartment.
When Hughes looked out, he saw Gaines holding a gun and heard Gaines order him to
come downstairs. Gaines threatened to kill him and his (Hughes') mother if he did not
comply. Hughes came outside but was reluctant to go with them. Tolces was able to
persuade Hughes to accompany them, and they got into a black car driven by Gaines.11
On the drive back to Vereen's apartment, Hughes and Tolces asked Gaines what
was going on, but Gaines told them to "shut the fuck up" or he would "hit [them] with his
gun," and periodically told them they were "going to get what [they] had coming [to
10 Precisely how Bowser arrived at Vereen's apartment was also a matter of some
disagreement among the prosecution's witnesses. According to Tolces, he and Gaines
collected Bowser and then went to get Hughes. However, according to Hughes,
defendants were at Vereen's apartment with Vereen, Hughes, and others. At some point
during the night, defendants directed Vereen and Hughes to go get Bowser. Vereen and
Hughes went to a couple of places before finding Bowser and taking her back to Vereen's
apartment, where defendants were waiting. When Hughes was asked to explain one
discrepancy between his trial testimony (that he went to get Bowser during the night) and
the statements he had earlier given to police (that he had gone to collect Bowser around
2:00 p.m.), he responded "I don't know. Something just is not right right now. . . .
[¶] . . . [¶] . . . Something is a blur right now. [¶] . . . [¶] . . . I know what I know. I do. I
just got my story mixed up. That's all it is." Vereen, for her part, denied that Hughes's
story of Vereen's involvement in getting Bowser was true. In contrast to Hughes's
testimony, Martin testified she arrived at Vereen's apartment with Hughes and that
Bowser was already there when Martin arrived.
11 Hughes agreed with Tolces that Gaines came to Hughes's apartment to get him,
but testified (contrary to Tolces) that Tolces was with Hughes in the apartment when
Gaines arrived, and that Gaines forced both of them to accompany him back to Vereen's
apartment. Hughes's trial testimony―that Gaines came and got Hughes and Tolces from
Hughes's apartment―also diverged from his own statement to police investigators that
Gaines and another man came to Hughes's apartment to get Hughes and Tolces.

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them]." Gaines also said Tolces was "going to die tonight," and would be digging his
own grave.
As soon as they arrived at Vereen's apartment, Gaines pushed Hughes inside
where Vereen began hitting, punching and kicking him. Gaines and Vereen then stood
Hughes up and escorted him and Tolces into a back bedroom. Eventually, all four targets
of defendants' inquisition (Hughes, Martin, Tolces and Bowser) were taken to the back
bedroom with Lavender, Gaines and Vereen, and the physical abuse began in earnest.12
Vereen slapped Hughes, grabbed him by the ears and shook him, trying to force
him to reveal the location of the checks. While in the back bedroom, Gaines and
Lavender heated up spoons, knives and forks with a lighter, and used these heated
instruments to burn Bowser's breasts, and also burned Martin's forehead. They also stuck
the tines of the fork into Bowser's legs. Both Martin and Bowser were screaming.
Martin also testified that, after being burned with the heated utensils, Lavender
took the girls into a bathroom and handcuffed them over the shower rod. Lavender then
12 The description of this segment of the events also differed among Hughes, Martin
and Tolces. Hughes testified that, after he and Vereen brought Bowser back to Vereen's
apartment, all four went into the back bedroom where the initial questioning and abuse
occurred. Martin agreed with Hughes that all four victims spent some time in the
bedroom together when Gaines and Lavender commenced questioning and torturing
them. Martin testified it was only later that Gaines and Lavender separated the girls
(Martin and Bowser) from the boys (Hughes and Tolces). However, Tolces testified he
and Gaines (not Vereen and Hughes) retrieved Bowser and returned with her to Vereen's
apartment, that he and Hughes were immediately separated from Bowser and Martin on
arriving at the apartment, and that he and Hughes remained in the living room the entire
time. Vereen recalled that Lavender took the girls (Bowser and Martin) into the back
bedroom to question them about the checks while Gaines questioned the boys (Tolces
and Hughes) in the living room.

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used a pair of scissors to cut Martin's shirt from the bottom up, cutting through her bra
and exposing her breasts. Lavender did the same thing to Bowser, and also pulled down
Bowser's pants. While rubbing the scissors against them, Lavender told them that if they
did not reveal the location of the checks, he was "going to put the scissors up [them]." At
some point, either Gaines or Lavender also threatened that they would take the girls out
to the desert and "make [them] dig [their] own hole."
Gaines was also busy trying to extract the information from the boys in the living
room. At one point, Gaines threw a knife at Tolces. Gaines also struck Hughes in the
face or forehead with his gun. At some point during the ordeal, which Hughes estimated
lasted from 8:00 or 9:00 p.m. until 6:00 a.m., Gaines also grabbed a hammer and chisel
and threatened to hit Hughes if he did not reveal the location of the checks. He then
forced Hughes to the floor and began to tap the end of the chisel on Hughes's ear. Gaines
then used the hammer to pound the flat end of some nails against Hughes's head. By this
time, the girls had been brought back into the living room and were handcuffed together.
Bowser had no clothes on and Martin was wearing only the shirt and bra that had been
cut open. As Gaines was about to again use the hammer and nail on Hughes, Bowser
blurted out that she had taken the checks and said she had given them to a friend of
Tolces.
Gaines, Lavender and Vereen began punching and slapping Bowser, and told her
she was going to die. Bowser was screaming for her life. Next, either Gaines or
Lavender began to shave Bowser's head with some clippers, which were pulling her hair
out and causing her to bleed. They then forced Tolces to take over shaving her head. He

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shaved a sizeable amount of hair from her head before he stopped, and her skin was
ripped at the hairline.13
Around daybreak, Gaines and Lavender wrapped something around the still
sobbing Bowser and led her in handcuffs from the apartment. This was the last time any
of the witnesses saw Bowser.14 However, when Vereen encountered Gaines the next
morning, Gaines (referring to Bowser) told Vereen that the "girl is in a canal with a bag
over her head barely breathing." Vereen did not take the remark seriously and thought
Bowser had simply run away.
It appears neither Vereen nor any of the others elected to make any
contemporaneous reports to police of the abuse or the abduction. During this all-night
series of events, there was no evidence any neighboring apartment dweller complained or
reported anything unusual.
Discovery of the Body
Around 3:00 a.m. on August 20, 2003, Bowser's lifeless body was discovered in
an irrigation ditch in Imperial County. However, her body was not identified until
February 2006.
13 Martin told police investigators that Hughes was forced to shave some of Bowser's
hair, and that Vereen then shaved off the remainder.
14 Although Vereen testified she did not see Bowser again, she told police during an
interview that she had last seen Bowser walking her bike in the company of Hughes and
Tolces.

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The autopsy by Dr. Garber was performed the day after discovery of Bowser's
body. He believed the body had been in the ditch no more than one or two days before it
was discovered. He concluded, based on the condition of the body, that she had been
alive when she was placed in the water, had struggled while being held, and had died of
drowning. However, he found no pathognomic evidence of drowning, i.e. no indicators
that permitted him to say absolutely that drowning was the cause of death. For example,
he did not find water or foam or frothy liquids in any of the airways, but he attributed the
absence of these materials to the level of decomposition of the body. His opinion as to
the cause of death was premised on the fact that she (1) was found in a body of water, (2)
had emergent wrinkling or changes on her hands and feet, and (3) had a hemorrhage in
her middle ears. However, he agreed the hemorrhage in her middle ears did not preclude
other causes of death.
Dr. Garber characterized drowning as "a diagnosis of exclusion," which means the
pathologist rules out other causes of death (such as strangulation or natural causes) before
concluding that drowning was the actual cause of death. One of the exclusions was
whether intoxication played a role in the death, and he testified he awaited the results of
toxicology tests before reaching his conclusion that drowning was the cause of death. He
acknowledged a toxicology report showed some levels of gamma hydroxybutyric acid
(GHB, a so-called "date rape" drug), but he stated that GHB is normally present in the
body and was at normal postmortem levels. He excluded drug overdose as the cause of
death based on the toxicology reports and his discussions with the toxicologist.

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He could not determine whether the body exhibited any burns or abrasions
because of the level of decomposition of the body, but there was bruising present. The
photographs of the body showed no signs any of Bowser's hair had been shaved, and the
autopsy report contained no mention that Dr. Garber observed any shaving of Bowser's
hair.
B. The Defense Case
The parties stipulated that Hughes, Tolces and Martin were all released from
Juvenile Hall between August 2, 2003, and August 14, 2003. Another actor in
defendants' scenario, Joshua Thibideaux, was incarcerated in Juvenile Hall during the
same time frame. On October 23, 2007, over a year and one-half after police identified
the body as Bowser, Thibideaux gave a statement to police that was read to the jury.
Although he was released on the same day that Bowser's body was found, Thibideaux's
statement to police claimed he was at the apartment during the inquisition and torture of
his fellow Juvenile Hall inmates. He prefaced his story by saying, "you gotta understand
like small details like what we were doing and stuff I don't really remember but I
remember huge things," but then related a description of events that tracked many of the
salient aspects of the story conveyed by those fellow Juvenile Hall inmates. Specifically,
he described the triggering events―that Hughes, Tolces and Bowser15 planned to and
15 Thibideaux told police he did not know Bowser well but saw her occasionally
before she disappeared. He agreed with the police detective that, prior to the night in
question, "everybody was doing [Bowser]" and "were passing her around," although he
never had sex with her.

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did steal the checks belonging to defendants―and that when the theft was discovered,
Hughes, Tolces, Bowser and Thibideaux went to Vereen's apartment where defendants
were waiting; when the group arrived, defendants struck Hughes and tortured Bowser
with heated implements to get the checks back. When the detective asked if another
victim had been present, Thibideaux agreed a "Mary" was present, but initially denied
any recollection that Martin was present because she was Thibideaux's "ex-girlfriend
[and] I'm pretty sure I'd know if she was in there." However, when police told
Thibideaux that Martin claimed to have been one of the victims, Thibideaux eventually
agreed Martin was there because "[i]f she said she was there, she probably has a better
memory than I do." Thibideaux went on to describe defendants tying up of Martin and
Bowser and torture of the naked girls, and defendants' pistol whipping and use of a
hammer to torture Hughes. However, the following day, police confronted Thibideaux
with the impossibility of his being present at Vereen's apartment because Thibideaux's
incarceration at Juvenile Hall did not end until hours after Bowser's body had already
been found.
The body, found in Imperial County, was finally identified as Bowser in February
2006. By that time, Hughes had moved from Palm Desert (located in Riverside County
where all the events had transpired) and was living in Michigan. Ms. Fowler (an
investigator with Imperial County) called Hughes at his new home and identified herself
as an investigator with Imperial County, but did not otherwise state the reason she was
calling. Although Hughes had no apparent connection to Imperial County and was not

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told the reason for her call, he nevertheless immediately responded, "I'm glad you called.
I've been wanting to tell somebody about this."16
The defense forensic pathologist, Dr Bonnell, reviewed numerous documents on
which he relied for his opinions.17 He would not have concluded Bowser's death was
due to drowning because there was no "foamy edema" (water in the lungs) or water in the
stomach, and the factors on which Dr. Garber relied (skin wrinkling and middle ear
hemorrhaging) are present any time a body is immersed in water for a sufficient length of
time, even if that immersion is post mortem. He also reviewed the autopsy and other
photographs and found no evidence Bowser had been stabbed with a fork, or had any
burn marks, or that any hair had been shaved from her head.
Dr. Bonnell agreed with Dr. Garber that drowning was a diagnosis of exclusion,
requiring the pathologist to rule out other causes (such as preexisting conditions or drugs)
that might explain the death. Dr. Bonnell explained that, because he could not rule out
toxicology as the cause of death, he could not conclude drowning was the actual cause of
Bowser's death. He explained that toxicology reports showed an elevated level of GHB
in Bowser's vitreous fluids of 54.4 milligrams per liter. That amount was well above the
1 milligram per liter considered a normal therapeutic level, and studies had shown that
16 Fowler had talked to a Mr. Loomis before she contacted Hughes, and Loomis was
a friend of Hughes, but there was no evidence Loomis had talked to Hughes about
Fowler's call.
17 He reviewed Sheriff's investigative reports, the autopsy report, the coroner's
memo, the toxicology results, photographs of the scene and the autopsy, the testimony of
Dr. Garber, and interview transcripts from various individuals.

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anything above 7 milligrams per liter is attributable to administrated GHB rather than the
amount of GHB produced by the body after death. Accordingly, Dr. Bonnell concluded
Bowser had ingested GHB sometime before her death. Dr. Bonnell also noted that GHB
is a respiratory depressant, and any levels above 50 milligrams per liter in the blood is
normally considered toxic and anything above 700 milligrams is lethal in and of itself.
Dr. Bonnell stated he could not determine the amount of GHB Bowser had
ingested because the body metabolizes GHB and therefore the residual levels decrease
over time. An excessive dose can render the user unconscious, and he concluded there
was a strong possibility Bowser overdosed on GHB but could not prove it.
Dr. Bonnell also testified Bowser had been dead between six and 12 hours before
her body was discovered, and that her body had been in the water for only about an hour
when it was discovered. This opinion was based in part on a witness's account of how
the body was discovered,18 and in part because there was no sunburn or severe
decomposition that would suggest the body had been exposed to the extreme summer
heat and sun associated with the desert in the summer. He believed Bowser was already
dead when placed into the water because the scrape on her left upper chest showed no
"vital reaction" and therefore was a postmortem scrape.
C. Rebuttal and Surrebuttal
The rebuttal and surrebuttal presentations were limited to scientific witness
testimony. The prosecution witness, Mr. Anderson, is a toxicologist experienced with
18 Dr. Bonnell relied on a witness who stated the body was not there around midnight
but was there when the witness returned around 3:00 a.m.

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GHB. He testified that GHB levels of 54 milligrams per liter is insufficient to be the sole
cause of death, and when levels are that low, "you better look for another contributing
cause of death." He conceded the test results strongly suggested Bowser had consumed
GHB, but it was not a "substantial" ingestion. However, he agreed GHB has a very short
half-life of between 20 and 60 minutes, so Bowser's GHB levels could have been twice
that level just 20 to 30 minutes before her death. He agreed there were studies that
attributed death to levels below 54, but he disagreed with those conclusions and stated the
data had been misinterpreted.
Dr. Bonnell, testifying in surrebuttal, reaffirmed that any GHB levels above 7
show the decedent ingested GHB, and studies have indicated a minimum level to be 55 or
60 milligrams, while some studies have suggested toxicity can begin as low as 20, and
the variation was likely attributable to the different body masses and metabolation rates
of the subjects. He also noted that, because the half-life of GHB can be as fast as 18
minutes, a reading of 54 at the time of Bowser's death could mean her GHB levels were
over 400 a little over an hour before her death if Bowser was a "fast metabolizer," and her
body would have continued to metabolize the GHB even if she had lapsed into a coma.
ANALYSIS
A. The Jury Misconduct Claim
Defendants contend the trial court erred when it denied their motion for a new trial
based on jury misconduct because it erroneously restricted the evidence presented in

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support of the motion, failed to conduct a Hedgecock19 hearing to resolve the disputed
issue of whether the jury's misconduct was substantial rather than fleeting, and concluded
the presumption of prejudice had been sufficiently rebutted.
The Motions
Gaines filed a motion for new trial, in which Lavender joined, alleging jury
misconduct. They argued the jury improperly discussed and considered during their
deliberations defendants' failure to testify, which was likely encouraged by the Griffin20
error committed by the prosecutor during her rebuttal closing argument. Defendants
supported the motion with declarations from three jurors. Juror No. 10 averred that,
"There was no testimony from the defendants and we discussed this fact during the
deliberations and openly talked about why they did not testify and that this fact made
them appear guilty to us. [¶] There was not enough testimony from defendants'
witnesses. The jury discussed that the defendants should have provided more witnesses,
including themselves, to testify on their behalf." Declarations from two other jurors
confirmed there were discussions concerning defendants' failure to testify. The
prosecution filed opposition to the motion, including two declarations from two of
defendants' declarants (the "clarifying" declarations),21 and a declaration from the
19 People v. Hedgecock (1990) 51 Cal.3d 395.
20 Griffin v. California (1965) 380 U.S. 609.
21 Juror No. 9's declaration, filed by defendants in support of the motion for new
trial, stated "[s]everal jurors . . . discussed the fact that the Defendants did not testify in
this case." However, the prosecution's opposition to the motion for new trial included a

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foreperson averring there was a single reference to their failure to testify and that it was
immediately quashed by his admonishment.
In reply, Gaines filed a declaration from the investigator who interviewed the
jurors to obtain their original declarations, and provided proposed testimony to buttress
the extent of the jury's discussions about defendants' failure to testify, and to undermine
the clarifying declarations of Juror Nos. 4 and 9 filed by the prosecution. The
investigator stated he read Juror No. 4's clarifying declaration and averred "[t]his is . . .
not what he told me . . . . [Juror No. 4] told me that the defendants not testifying was
discussed for some period of time and was more than a mere mentioning of that fact. He
also told me that the jury discussed that if they were really innocent they would have
testified. He never said that [the foreperson] or any other juror admonished them to stop
talking about that or that they could not consider this in their deliberations." (Italics
added.) The investigator also stated that he read Juror No. 9's clarifying declaration and
averred "[t]his is not what she told me when I first interviewed her. [Juror No. 9] told me
that several jurors discussed the fact that the defendants did not testify. She did say that
clarifying declaration from Juror No. 9 that stated only one juror mentioned the failure to
testify, and the foreman admonished that they could not consider that issue, and the
"several jurors" mentioned in her original declaration referred to several jurors verbally
agreeing with that admonishment. Juror No. 4's declaration, filed by defendants in
support of the motion for new trial, stated "the fact that the defendants did not testify was
discussed at length during the deliberations and also played a large part in our decision.
We discussed the fact that if the [defendants] were innocent then they should've
testified." (Italics added.) However, in the clarifying declaration filed by the prosecution
in opposition to the motion for new trial, Juror No. 4 said only one juror mentioned the
failure to testify, the foreman admonished that they could not consider that issue, and that
was the end of the discussion. Juror No. 4 did not explain why his previous description
(e.g. that it was an "at length" discussion that played a "large part" in the decision) was
inaccurate.

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at some later point in time that a juror said that they should not discuss that. She never
told me that the foreperson immediately put a stop to that discussion." (Italics added.)
Finally, the investigator described his interview with another juror (M.G.), who told the
investigator the jury discussed defendants' failure to testify and the adverse inference
drawn from their silence.22
The trial court, recognizing the delicate and fine line separating admissible
evidence of objective facts occurring in the jury room and inadmissible evidence of
subjective reasoning processes of jurors (see, e.g., People v. Cissna (2010) 182
Cal.App.4th 1105, 1116 (Cissna)), ruled on the defense evidence as follows:
(1) Juror No. 9's statement in her original declaration that "[s]everal
jurors also discussed the fact that the Defendants did not testify in
this case" was admitted. The court excluded the balance of her
original declaration as reflecting thought processes of the jury.
(2) Juror No. 4's statement in his original declaration that "the fact
that the defendants did not testify was discussed at length during the
deliberations" was admitted. The court excluded his statements that
these discussions "played a large part in our decision" and that "[w]e
discussed the fact that if the defendants were innocent then they
should've testified" as reflecting thought processes of the jury.
(3) Juror No. 10's statement in his declaration that "[t]here was no
testimony from the defendants and we discussed this fact during the
22 The investigator averred that M.G. told him the fact the defendants did not testify
was "the main reason they found them guilty. [M.G.] said that the jury discussed this
during their deliberations. [M.G.] said that the jury said during deliberations that if they
were really innocent then they should have testified and told us they were innocent."
However, the investigator explained that when he went back to M.G.'s house to obtain
her signature on a declaration, M.G.'s husband told the investigator they would not file a
declaration and if M.G. had known the investigator was assisting the defense, M.G.
would not have spoken to him.

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20
deliberations" was admitted. The court excluded the balance of the
declaration, including the statements that the jury "openly talked
about why they did not testify and that this fact made them appear
guilty to us" and the statement that "[t]he jurors discussed that the
defendants should have provided more witnesses, including
themselves, to testify on their behalf" as reflecting thought processes
of the jury.
(4) The court excluded the entirety of the investigator's declaration
as hearsay, irrelevant, and a "violation of Evidence Code section
[1150]."
The trial court, applying the same distinction between admissible evidence of
objective facts and inadmissible evidence of the subjective reasoning processes of jurors,
ruled on the prosecution evidence as follows:
(1) Juror No. 9's statement in her clarifying declaration that "[t]he
only discussion that occurred during deliberations regarding the
defendants not testifying is when one of the jurors mentioned it. The
foreperson immediately admonished that juror that we could not
consider that issue. Several other jurors then also repeated that it
was an issue that we could not consider" was admitted. The court
excluded the balance of her original declaration as reflecting thought
processes of the jury, or as irrelevant or hearsay.
(2) Juror No. 4's statement in his clarifying declaration that "[t]he
only discussion that occurred during deliberations regarding the
defendants' not testifying is when a juror mentioned it. The
foreperson immediately told the juror that we could not consider that
issue" was admitted.
(3) Juror No. 12's statement that "[t]he only discussion that occurred
during deliberations regarding the defendants not testifying is when
one of the jurors mentioned it. I immediately admonished that juror
that we could not consider that issue. I specifically recall that Juror
No. 11 . . . also stated that we were not to consider that issue and

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21
must follow the instructions" was admitted. The court excluded the
balance of Juror No. 12's declaration.23
On this record, the court found misconduct did occur. However, the court found
the presumption of prejudice had been rebutted by the prosecution's showing that no
actual prejudice occurred, because the foreperson's admonition cured the misconduct.
The court also found there was insufficient basis for ordering a Hedgecock hearing,
because there were no clearly defined and specific disputes on material issues relating to
the misconduct, and a hearing would present a danger of inquiring into the thought
processes of the jurors.
Legal Principles
A defendant has a constitutional right to a trial by an impartial jury. (In re
Hamilton (1999) 20 Cal.4th 273, 293.) "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]." ' " (Id. at p. 294.)
"Prejudicial jury misconduct constitutes grounds for a new trial." (People v.
Blackwell (1987) 191 Cal.App.3d 925, 929.) In general, jurors commit misconduct when
they directly violate the oaths, duties, and admonitions imposed on them. (In re
Hamilton, supra, 20 Cal.4th at p. 294.)
23 When the prosecution asked whether Juror No. 12's statement, averring "[t]hat was
the one and only reference to the defendants not testifying that occurred during
deliberations" would be admitted, the court stated it would not admit it "because it will
impact on whether there should be an evidentiary hearing."

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22
It is well established that a jury commits misconduct when it violates a trial court's
instruction not to discuss the defendant's failure to testify. (People v. Leonard (2007) 40
Cal.4th 1370, 1425 (Leonard).) "This misconduct gives rise to a presumption of
prejudice, which 'may be rebutted . . . by a reviewing court's determination, upon [an
examination of] the entire record, that there is no substantial likelihood that the
[defendant] suffered actual harm.' " (Ibid.)
Procedural Framework
"When a defendant moves for a new trial based on jury misconduct, the trial court
undertakes a three-part inquiry. 'First, the court must determine whether the evidence
presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is
admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally,
if misconduct is found to have occurred, the court must determine whether the
misconduct was prejudicial.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
This court recently explained that, when challenging the validity of a verdict based
on juror misconduct, the first step requires a defendant to "present evidence of overt acts
or statements that are objectively ascertainable by sight, hearing, or the other senses."
(Cissna, supra, 182 Cal.App.4th at p. 1116.) We also cautioned that "[n]o evidence may
be presented concerning the subjective reasoning processes of a juror that can neither be
corroborated nor disproved . . . ." (Ibid.) Thus, the first step requires the court to cull
admissible evidence of overt conduct from inadmissible evidence purporting to describe
the subjective reasoning processes of the juror or jury.

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23
In the second step, the court must examine the admissible evidence assembled
during the first step to determine whether misconduct occurred. Where the admissible
evidence raises a strong possibility that misconduct has occurred, the trial court also has
discretion to determine whether to conduct an evidentiary hearing to resolve factual
disputes raised by the claim of juror misconduct. (People v. Avila (2006) 38 Cal.4th 491,
604.) A defendant is not entitled to an evidentiary hearing "as a matter of right. Such a
hearing should be held only when the court concludes an evidentiary hearing is 'necessary
to resolve material, disputed issues of fact.' [Citation.] 'The hearing . . . should be held
only when the defense has come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred. Even upon such a showing, an
evidentiary hearing will generally be unnecessary unless the parties' evidence presents a
material conflict that can only be resolved at such a hearing.' " (Ibid.)
If the court determines there was misconduct, it must then turn to the final step of
determining prejudice. As to the last step, our Supreme Court has explained that
"[m]isconduct by a juror . . . usually raises a rebuttable 'presumption' of prejudice.
[Citations.] This presumption aids parties who are barred by statute from establishing the
actual prejudicial effect of the incident under scrutiny [citations] and accommodates the
fact that the external circumstances of the incident are often themselves reliable
indicators of underlying bias [citation]. [¶] Still, whether an individual verdict must be
overturned for jury misconduct or irregularity ' " 'is resolved by reference to the
substantial likelihood test, an objective standard.' " ' [Citations.] Any presumption of
prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the

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24
particular case, including the nature of the misconduct or other event, and the
surrounding circumstances, indicates there is no reasonable probability of prejudice." (In
re Hamilton, supra, 20 Cal.4th at pp. 295-296.)
Our Supreme Court in In re Carpenter (1995) 9 Cal.4th 634, after noting a verdict
will be set aside if there appears to be a substantial likelihood of juror bias, expanded on
the relevant inquiry by explaining that juror bias:
"can appear in two different ways. First, we will find bias if the
[improper conduct], judged objectively, is inherently and
substantially likely to have influenced the juror. [Citations.]
Second, we look to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely the juror
was actually biased against the defendant. [Citation.] The judgment
must be set aside if the court finds prejudice under either test.
"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 [improper conduct] was so prejudicial in context that its
erroneous introduction in the trial itself would have warranted
reversal of the judgment. Application of this 'inherent prejudice' test
obviously depends upon a review of the trial record to determine the
prejudicial effect of the [improper conduct].
"But a finding that the [improper conduct] was 'harmless' by
appellate standards, and thus not 'inherently' biasing, does not end
the inquiry. Ultimately, the test for determining whether juror
misconduct likely resulted in actual bias is 'different from, and
indeed less tolerant than,' normal harmless error analysis, for if 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. [Citation.] A
biased adjudicator is one of the few 'structural defects in the
constitution of the trial mechanism, which defy analysis by
"harmless-error" standards.' [Citations.] Thus, even if the
[misconduct] 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

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25
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. 'The presumption of prejudice may
be rebutted, inter alia, by a reviewing court's determination, upon
examining the entire record, that there is no substantial likelihood
that the complaining party suffered actual harm.' " (In re Carpenter,
supra, 9 Cal.4th at pp. 653-654, first and second italics added.)
Whether prejudice arose from juror misconduct is a mixed question of law and
fact. "On appeal from a ruling denying a new trial motion based on juror misconduct, we
defer to the trial court's factual findings if supported by substantial evidence, and exercise
our independent judgment on the issue of whether prejudice arose from the
misconduct . . . ." (Cissna, supra, 182 Cal.App.4th at p. 1117.)
Analysis of First Step
As a preliminary matter, we conclude the court erred when it excluded, and
therefore did not weigh, certain evidence relevant to showing the scope of the
misconduct. Although the court admitted Juror No. 4's statement (in his original
declaration) that "the fact that the defendants did not testify was discussed at length
during the deliberations," it excluded his statements that these discussions "played a large
part in our decision" and that "[w]e discussed the fact that if the [defendants] were
innocent then they should've testified." The latter statement clearly represented
"statements that are objectively ascertainable by sight, hearing, or the other senses"
(Cissna, supra, 182 Cal.App.4th at p. 1116), and should have been admitted. The former
statement, while arguably describing the "subjective reasoning processes" of the jury, is
at least equally capable of an interpretation that described the quantitative level at which

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26
the failure to testify was involved in the jury's discussions,24 and therefore was
admissible as objectively ascertainable conduct.
Although the court admitted Juror No. 10's statement that "[t]here was no
testimony from the defendants and we discussed this fact during the deliberations," it
excluded the balance of the declaration. While most of the balance of Juror No. 10's
statement was inadmissible, the court excluded two statements (e.g. that the jury "openly
talked about why they did not testify and that this fact made them appear guilty to us" and
that "[t]he jurors discussed that the defendants should have provided more witnesses,
including themselves, to testify on their behalf")25 that clearly represented "statements
that are objectively ascertainable by sight, hearing, or the other senses" (Cissna, supra,
182 Cal.App.4th at p. 1116), and should have been admitted.
24 Indeed, the context of the phrase lends additional weight to our interpretation that
the phrase "played a large part in our decision" conveyed the quantitative level of the
jury's discussions concerning defendants' failure to testify. Juror No. 4 stated "the fact
that the defendants did not testify was discussed at length during the deliberations and
also played a large part in our decision," suggesting his description of the "large part" was
connected to his description of the "discussed at length" part of his declaration.
25 Juror No. 10's statement that the jury discussed that "the defendants should have
provided more witnesses, including themselves, to testify," may have been prompted by a
statement made by the prosecutor during rebuttal closing argument. The prosecutor,
responding to the defense argument that the prosecution had no testimony from
defendants' employers or coworkers that defendants had not shown up for work on the
day Bowser went missing, stated "[w]ell, guess what, if they had an alibi, there's nothing
stopping them from presenting it." Defendants' failure to provide an alibi, either by
testifying or calling others, may have been the "more witnesses, including themselves"
the jury discussed when evaluating their guilt.

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27
Finally, the court entirely excluded the investigator's declaration, concluding it
was hearsay.26 Certainly, unsworn hearsay is incompetent to prove misconduct (People
v. Dykes (2009) 46 Cal.4th 731, 810-811), but the investigator's declaration was
submitted under penalty of perjury, and therefore is distinct from the information
considered in Dykes. We agree the investigator's averments as to what he was told by
juror M.G. was inadmissible hearsay, because it was offered for the truth of the matters
asserted, i.e. that the jury discussed defendants' failure to testify during their deliberations
and "the jury said during deliberations that if they were really innocent then they should
have testified and told us they were innocent." However, the investigator's testimony,
offered to impeach the clarifying declarations submitted by Juror Nos. 4 and 9, was not
inadmissible hearsay because it was offered as prior inconsistent statements by those
jurors, which at a minimum made the statements admissible under Evidence Code section
1202.27 (Cf. People v. Williams (1976) 16 Cal.3d 663, 668.)
26 The court also excluded the declaration as irrelevant and because it comprised an
unspecified violation of Evidence Code section 1150. The People on appeal do not seek
to justify exclusion under either of those grounds, and we do not further consider those
bases.
27 The investigator said he read Juror No. 4's declaration and stated "this is . . . not
what [Juror No. 4] told me. [Juror No. 4] told me that the defendants not testifying was
discussed for some period of time and was more than a mere mentioning of that fact. He
also told me that the jury discussed that if they were really innocent they would have
testified. He never said that [the foreperson] or any other juror admonished them to stop
talking about that or that they could not consider this in their deliberations." The
investigator also stated that he read the clarifying declaration submitted by Juror No. 9,
and "[t]his is not what she told me when I first interviewed her. [Juror No. 9] told me
that several jurors discussed the fact that the defendants did not testify. She did say that
at some later point in time that a juror said that they should not discuss that. She never

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28
Analysis of Second Step
The state of the admissible evidence before the trial court showed the jury, in
violation of the court's instructions and the defendants' rights, discussed the defendants'
failure to testify and the adverse inference to be drawn from that fact. The trial court
found, and the People acknowledge, "[b]y discussing the fact that [defendants] had not
testified, [the] jurors committed misconduct." Indeed, the People also concede " ' "[t]his
misconduct gives rise to a presumption of prejudice, which 'may be rebutted' " ' "
(quoting People v. Loker (2008) 44 Cal.4th 691, 749 (Loker)). Because the People's
concessions appear consonant with applicable law (see Leonard, supra, 40 Cal.4th at
p. 1425), we accept these concessions and therefore turn to the issue of whether the
presumption of prejudice has been rebutted. (Ibid.; accord, People v. Hord (1993) 15
Cal.App.4th 711, 725 (Hord).)
Analysis of Third Step
Our independent review of the entire record convinces us the presumption of
prejudice has not been rebutted because the evidence does not show there was no
substantial likelihood defendants suffered actual harm as a result of the jury misconduct.
We begin by noting there was no forensic evidence connecting defendants to Bowser's
death at all, and even the forensic evidence and opinions concerning the cause of her
told me that the foreperson immediately put a stop to the discussion." Moreover, to the
extent that the declarations submitted by the prosecution made Juror Nos. 4 and 9
"witness[es] . . . at the hearing" on the issue of jury misconduct within the meaning of
Evidence Code section 1235, their prior inconsistent statements would also be admissible
under Evidence Code section 1201 for the truth of the statements contained in the
declarations. (Evid. Code, §§ 1201 & 1235.)

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29
death were sharply conflicting and approaching equipoise. Because of this dearth of
forensic certainties, the jury was required to assess defendants' guilt or innocence by
deciding whether it believed the prosecution's version of what transpired, or whether it
instead gave sufficient credit to the defense theory of what happened as to raise a
reasonable doubt as to the prosecution's version.
The prosecution's version rested entirely on the testimonies of the prosecution's
four witnesses whose testimonies (at best) were inconsistent in numerous details among
the four witnesses' versions and (at worst) were inconsistent with the forensic
evidence.28 In this milieu, the jury expressly discussed to some degree (and according to
one juror's declaration discussed to an extensive degree) that its credibility calculus
would be influenced by defendants' failure to testify in their own defense. In Cissna,
supra, 182 Cal.App.4th 1105, this court considered an analogous claim of misconduct. In
Cissna, a juror extensively discussed the case with an outsider, and one of the topics of
their conversations was "the implications to be drawn from the fact defendant would not
likely be testifying . . . ." (Id. at p. 1119.) This court, noting the nature of the case
28 Martin and Hughes testified defendants repeatedly burned Bowser. The
prosecution's expert could not determine whether the body exhibited any burns, which he
attributed to the level of decomposition of the body, even though the body was found less
than 24 hours after Bowser disappeared and was in the water less than eight hours. In
contrast, the defense pathologist affirmatively stated there was no evidence of burn
marks. The prosecution witnesses also said Bowser's head had been partly (or fully)
shaved, and there was no evidence the body was missing any hair. One witness also told
police that defendants had stabbed Bowser's leg with a fork; again, there was no forensic
evidence of any stab wounds. Finally, Vereen testified Gaines told her that the "girl is in
a canal with a bag over her head barely breathing." There was no evidence there was any
bag found on or near Bowser's body.

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30
(charges of continuous sexual molestation against a victim under the age of 14) made the
credibility of the prosecution's witness of pivotal importance, observed:
"[T]he fact that Juror D. and G. discussed the import of defendant's
decision not to testify demonstrates that this outside influence was
directed to a critical issue and one that was potentially highly
detrimental to the defense. As is true in all criminal trials, the jury
was instructed that it is not permitted to consider or discuss the fact
that defendant exercised his constitutional right not to testify.
[Citation.] This rule is designed to prevent the jury from drawing
adverse inferences against the defendant in violation of the
constitutional right not to incriminate oneself. [Citation.] In some
cases the courts have found comments about a defendant's failure to
testify to be nonprejudicial misconduct. [Citing Hord, supra, 15
Cal.App.4th 711, Leonard, supra, 40 Cal.4th 1370 and Loker, supra,
44 Cal.4th 691.]
"Unlike the situations in Hord, Leonard and Loker, the
circumstances of this case show the discussion of defendant's
decision not to testify carried a high potential of prejudice to the
defense. In the absence of physical evidence, sexual molestation
cases inevitably turn largely on the jury's evaluation of the victim's
credibility. A defendant is entitled to have all 12 jurors make this
evaluation without considering whether the defendant took the stand
to deny the accusations. The defendant's silence should not be a
factor adding to any inferences that the victim is telling the truth.
The fact that Juror D. discussed defendant's silence with G. reflects
that Juror D. considered this factor. . . . This improper influence
obviated the defendant's constitutional right not to have his silence
play any role in his conviction." (Id. at pp. 1120-1121, fns. omitted.)
Here, as in Cissna, there was no physical evidence remotely connecting
defendants to Bowser. Accordingly, as in Cissna, the entire case turned on the credibility
of witnesses whose versions were at best internally inconsistent in many particulars.
Under the facts of this case, we cannot conclude the jury's discussion of defendants'
failure to testify, which "presumptively establish[ed] prejudicial jury misconduct"
(People v. Perez (1992) 4 Cal.App.4th 893, 908-909), did not warrant a new trial because

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31
we cannot conclude " 'upon examining the entire record, that there is no substantial
likelihood that [defendants] suffered actual harm [from the misconduct].' " (In re
Carpenter, supra, 9 Cal.4th at p. 654.)
The People, relying on Leonard and Loker, argue the presumption of prejudice
was rebutted because the jury foreman's declaration averred that there was a single
comment about the defendants' failure to testify and that he immediately reminded the
jury that it could not consider their failure to testify. Even assuming the foreman's
declaration did not create the necessity for a Hedgecock hearing, the actions below differ
markedly from the actions considered in Leonard and Loker and instead more closely
resemble the conduct in Cissna and Lopez. For example, in Leonard, the offending
conduct was limited to comments (made during the penalty phase deliberations) by jurors
that they " 'would have liked for [defendant] to testify during the penalty phase so that we
could better understand why he killed six people, and whether he was truly remorseful
. . .' [and] understand the extent of his impairment.' " (Leonard, supra, 40 Cal.4th at
p. 1424.) Leonard, concluding this was not prejudicial misconduct, reasoned:
"[T]he purpose of the rule prohibiting jury discussion of a
defendant's failure to testify is to prevent the jury from drawing
adverse inferences against the defendant, in violation of the
constitutional right not to incriminate oneself. Here, the comments
on defendant's failure to testify mentioned in defendant's new trial
motion merely expressed regret that defendant had not testified,
because such testimony might have assisted the jurors in
understanding him better. In the words of the trial court: 'I think that
wanting to hear defendants testify is natural. We do the best we can
to deter jurors from speculating and from drawing negative
inferences, but merely referencing that they wish he would have
testified is not the same as punishing the Defendant for not

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32
testifying. It is not the same as drawing negative inferences from the
absence of testimony.' " (Id. at p. 1425.)
Similarly, in Loker, the defendant's failure to testify was " 'mentioned only
briefly' " and only in the context of the penalty phase (Loker, supra, 44 Cal.4th at p. 748,
fn. 27), and Loker (following Leonard) found any presumption of prejudice was rebutted
because the offending conduct was brief and relatively innocuous. (Loker, at pp. 748-
749.)
Here, in contrast, the evidence showed the discussions, in addition to being more
extensive than in Leonard or Loker, involved a discussion of precisely the type of
inference not present in Leonard or Loker: an inference of guilt based on their failure to
testify. That distinction was recognized by the Hord court when it considered a claim of
misconduct. The declarations from the jurors in Hord stated there was a "comment" or it
was "discussed" that the defendant did not testify. (Hord, supra, 15 Cal.App.4th at
pp. 721-722.) Hord stated:
"Here, during deliberations there was a comment or comments made
about defendant's not testifying and a comment regarding
defendant's sentence. Although these matters were not to be
discussed, the discussion was very different than when a juror
performs experiments or brings in new law or facts into
deliberations. The jury was obviously well aware here that defendant
did not testify and equally aware that he would be punished if the
jury found him to be guilty. Thus the comments did not interject any
new material into deliberations that was not already known by the
jury from the trial itself. Transitory comments of wonderment and
curiosity, although misconduct, are normally innocuous, particularly
when a comment stands alone without any further discussion. . . ."
"When comments go beyond natural curiosity and their content
suggests inferences from forbidden areas, the chance of prejudice
increases. For example, if a juror were to say, 'The defendant didn't

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33
testify so he is guilty,' . . . the comments go beyond mere curiosity
and lean more toward a juror's drawing inappropriate inferences
from areas which are off limits. Such comments are more likely to
influence that juror and other jurors.
"In [the juror's] initial declaration, he recited a juror's oblique remark
about a party not saying anything to protect himself. Although this
comment may have carried a greater potential for prejudice than a
mere statement of curiosity, in light of the record before us it does
not require reversal. It does not appear that there was a lengthy
discussion . . . . The comments did not involve extra record material
but were regarding matters already obvious to the jurors. More
importantly, the foreperson admonished his fellow jurors and
reminded them they could not consider defendant's not testifying
during deliberations." (Hord, supra, 15 Cal.App.4th at pp. 727-728.)
Here, unlike the situations in Hord, Leonard and Loker, the discussion about
defendants' failure to testify was not limited to expressions of regret or curiosity, but
instead was expressly linked to the adverse inference of guilt to be drawn from the failure
to testify.29 In Hord's words, when such comments arise in the jury room, "the chance of
prejudice increases . . . [because] the comments go beyond mere curiosity and lean more
toward a juror's drawing inappropriate inferences from areas which are off limits. Such
29 Although the foreman here told the jury not to consider the fact of the defendant's
failure to testify, as occurred in Loker and Hord (Loker, supra, 44 Cal.4th at p. 748;
Hord, supra, 15 Cal.App.4th at p. 728), neither Loker nor Hord involved a jury that also
discussed the inference of guilt it would draw from that fact, and therefore neither case
supports the notion that a jury foreman's admonition can cure the taint created by such
discussions. Indeed, when a jury chooses to place that inference on the table
notwithstanding the court's express prior instruction not to consider the same inference,
we have difficulty understanding why the foreman's repetition of that instruction would
have any curative effect on a jury that has already evinced a willingness to disregard the
court's instructions.

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34
comments are more likely to influence that juror and other jurors." (Hord, supra, 15
Cal.App.4th at p. 728.)
We conclude that, because the evidentiary landscape in this case turned entirely on
close and substantial credibility assessments, and a "defendant is entitled to have all 12
jurors make this evaluation without considering whether the defendant took the stand to
deny the accusations [and] [t]he defendant's silence should not be a factor adding to any
inferences that the victim is telling the truth" (Cissna, supra, 182 Cal.App.4th at p. 1121),
the presumption of prejudice from the misconduct has not been rebutted. Accordingly,
we reverse the convictions and remand the case for a new trial.
B. The Sufficiency of the Evidence Claims
Defendants contend the evidence was insufficient to support any of the
convictions, and alternatively the evidence was insufficient to support the torture
convictions.
Legal Standards
When we review a challenge to the sufficiency of the evidence to support a
verdict, we review all of the evidence most favorably to the verdict. We draw all
reasonable inferences in support of the verdict, but do not make credibility judgments or
reweigh the evidence. The question we must decide is whether there is sufficient,
substantial evidence from which a reasonable jury could find the charge proved beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
" 'Circumstantial evidence may be sufficient to connect a defendant with the crime
and to prove his guilt beyond a reasonable doubt.' " (People v. Bloyd (1987) 43 Cal.3d

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35
333, 347.) " ' "Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court[,] which must be
convinced of the defendant's guilt beyond a reasonable doubt" ' " (People v. Rodriguez
(1999) 20 Cal.4th 1, 11), and we may neither reweigh the evidence nor reevaluate a
witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Where the
circumstances reasonably justify the trier of fact's findings, the reviewing court's opinion
that the circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
The Global Argument
Defendants first argue that all of the convictions lack evidentiary support because
the evidence was too speculative and rested on patently unbelievable testimony.
Although there were numerous contradictions among the witnesses, a trier of fact could
have found rational explanations for resolving the discrepancies, including the passage of
time, the traumatic impact of the events, or the fact the witnesses' ability to perceive and
recall had been hampered by their drug-induced fog. We cannot conclude the evidence
was so inherently improbable that it could not support a conviction.
We are not persuaded the case was so speculative that there was insufficient
evidence to support the convictions. Defendants argue, for example, that how and by
whom Bowser was placed in the canal was necessarily speculative. However, if the trier
of fact accepted that defendants (after threatening they would take Bowser and Martin out
to the desert a "make [them] dig [their] own hole") in fact took Bowser with them around

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36
6:00 a.m., and that her body was discovered around 3:00 a.m. the next morning, the trier
of fact could infer that they followed through on their threat to kill Bowser, particularly if
the jury further credited Vereen's testimony that Gaines told Vereen the next day that the
"girl is in a canal with a bag over her head barely breathing." We cannot conclude as a
matter of law that the evidence is insufficient to support the convictions.
The Torture Argument
Defendants alternatively argue that, even assuming the evidence supported the
kidnapping and murder charges, there was no substantial evidence supporting the torture
convictions because there was no evidence any of the victims suffered the requisite level
of bodily injury required for a torture count under section 206.
"[T]orture has two elements: (1) a person inflicted great bodily injury upon the
person of another, and (2) the person inflicting the injury did so with specific intent to
cause cruel and extreme pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose." (People v. Baker (2002) 98 Cal.App.4th 1217,
1223.) Defendants do not contest the sufficiency of the evidence on the intent element,
but instead argue there was no evidence any of the victims suffered the requisite level of
bodily injury. However, as this court reaffirmed in People v. Pre (2004) 117 Cal.App.4th
413, 420, "[s]ection 206 does not require permanent, disabling, or disfiguring injuries;
'[s]ection 206 only requires "great bodily injury as defined in Section 12022.7" . . . .
"Abrasions, lacerations and bruising can constitute great bodily injury." ' " As to Bowser,
Dr. Garber observed her body had bruising present. As to Martin, she testified
defendants burned her forehead with heated utensils. As to Hughes, he testified he was

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struck in the head with a gun butt with sufficient force that he still had a scar, that
defendants also used a chisel and the flat end of nails pounded with a hammer to inflict
such pain that he got dizzy and almost blacked out, and that he was "covered in blood" in
the aftermath of their torture.
We cannot conclude as a matter of law that a jury could not have found the level
of physical harm inflicted by defendants satisfied the requirements for conviction under
section 206.
DISPOSITION
The convictions are reversed and the matter is remanded for a new trial.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.

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