People v. Strange CA4/3

Opinion

Filed 8/24/26 P. v. Strange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G064868 v. (Super. Ct. No. 18WF2186)

CYNTHIA ROBERTA STRANGE, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Cynthia Roberta Strange appeals her conviction for first degree murder, asserting the trial court erred in denying her motion for a new trial on the grounds of jury misconduct. Finding no error, we affirm. FACTS Strange was charged with murdering her 92-year-old mother. (Pen. Code, § 187, subd. (a).) The complaint further alleged she committed the murder for financial gain. (Id., § 190.2, subd. (a)(1).) Strange did not testify at trial. The trial court instructed the jury she had an absolute constitutional right not to testify, and jurors could not consider, for any reason, the fact she did not testify. (CALCRIM No. 355.) During deliberations, the jury’s initial vote was six for guilty, and six for not guilty. After three days of deliberations, the jury ultimately convicted Strange of first degree murder but found the financial gain enhancement not true. Strange filed a motion for new trial on the grounds of jury misconduct. In support, she submitted declarations from most of the jurors attesting that during deliberations, they had discussed Strange’s failure to testify in her own defense. The trial court held a two-day evidentiary hearing, during which all 12 jurors testified. As detailed below, the jurors gave conflicting testimony on how long their discussion about Strange’s failure to testify lasted (with most describing it as very brief, but a few recalling it as lasting 30 minutes). They also gave conflicting testimony about whether anyone reminded them during deliberations that such discussions were not permitted. However, most jurors recalled being aware that they could not take Strange’s failure to testify into account, and all 12 confirmed they gave no weight to her failure to testify when evaluating the evidence and finding her guilty.

2 The trial court determined that although the jury had committed misconduct, the prosecution had rebutted the resulting presumption of prejudice. The court therefore denied Strange’s motion for new trial and sentenced her to 25 years to life in prison. DISCUSSION I. APPLICABLE LAW A criminal defendant’s Fifth Amendment right not to testify against herself “would be vitiated if the jury could draw adverse inferences from [her] failure to testify.” (People v. Leonard (2007) 40 Cal.4th 1370, 1424 (Leonard).) To minimize that danger and prevent the jury from drawing adverse inferences, a criminal defendant may request that the jury be instructed not to discuss her failure to testify. (Id. at pp. 1424−1425.) Jurors commit misconduct when they disregard a trial court’s instruction to not discuss a defendant’s decision to not testify. (People v. Lavender (2014) 60 Cal.4th 679, 687 (Lavender).) That misconduct creates “a presumption of prejudice, which may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct.” (Ibid.) Courts consider three factors when evaluating whether the prosecution carried its burden of showing no prejudice: (1) “whether jurors drew adverse inferences of guilt from defendant’s decision not to testify”; (2) “the length of discussion about the topic”; and (3) “whether jurors were reminded not to consider the defendant’s decision not to testify.” (People v. Solorio (2017) 17 Cal.App.5th 398, 409−410 (Solario), citing Lavender, supra, 60 Cal.4th at pp. 689−690, 692.)

3 In considering the first factor—whether jurors drew adverse inferences of guilt from a defendant’s decision not to testify—courts look to whether the jurors’ “‘comments go beyond natural curiosity and their content suggests inferences from forbidden areas.’” (Solorio, supra, 17 Cal.App.5th at p. 409.) “Comments of mere ‘wonderment and curiosity’ are normally innocuous.” (Ibid.) For example, “merely express[ing] regret that [the] defendant had not testified, because such testimony might have assisted the jurors in understanding him better,” does not suggest the jurors “‘punish[ed] the [d]efendant for not testifying.’” (Leonard, supra, 40 Cal.4th at p. 1425.) By comparison, a comment like “‘“The defendant didn’t testify so he is guilty”’” would suggest a juror drew an inappropriate inference. (Solorio, at pp. 409–410.) “The second rebuttal factor considers the length of discussion about the topic.” (Solorio, supra, 17 Cal.App.5th at p. 410.) “‘“Transitory comments of wonderment and curiosity” about a defendant’s failure to testify, although technically misconduct, “are normally innocuous.”’” (People v. Manibusan (2013) 58 Cal.4th 40, 59; see Leonard, supra, 40 Cal.4th at p. 1425 [“jury’s brief discussion of [defendant’s] failure to testify” was not prejudicial]; contrast Solorio, supra, 17 Cal.App.5th at p. 410 [discussion was prejudicial where topic was raised several times over the course of an hour]; People v. Cissna (2010) 182 Cal.App.4th 1105, 1122 [judgment reversed because of juror’s extensive and “pervasive” daily discussions with non-juror regarding defendant’s failure to testify and other matters].) The fact that only some jurors recall comments about the defendant’s failure to testify tends to suggest “the discussion was not of any length or significance.” (People v. Avila (2009) 46 Cal.4th 680, 727.)

4 “The third rebuttal factor—the crux of Lavender—considers whether jurors were reminded not to consider the defendant’s decision not to testify.” (Solorio, supra, 17 Cal.App.5th at p. 410.) Such a reminder, in the absence of objective evidence otherwise, is “strong evidence that prejudice does not exist.” (Lavender, supra, 60 Cal.4th at p. 687; see, e.g., People v. Loker (2008) 44 Cal.4th 691, 749 [presumption of prejudice rebutted where “the foreperson promptly . . . remind[ed] the jurors that defendant had a right not to testify and that his assertion of that right could not be held against him”]; People v. Hord (1993) 15 Cal.App.4th 711, 728 [no prejudicial misconduct where jury briefly discussed defendant’s failure to testify but foreperson admonished them they could not consider that fact].) In an appeal challenging the denial of a motion for new trial based on jury misconduct, “[w]e accept the court’s credibility determinations and factual findings if supported by substantial evidence but independently assess whether prejudice arose.” (Solorio, supra, 17 Cal.App.5th at p. 407.) II. THE PROSECUTION REBUTTED THE PRESUMPTION OF PREJUDICE The People rightly concede the jury committed misconduct and prejudice is presumed. We therefore must determine whether the prosecution rebutted the presumption by establishing there was no substantial likelihood that Strange suffered actual harm. We first consider whether the jury drew any adverse inferences of guilt from Strange’s failure to testify. Strange notes that two jurors (Nos. 174 and 183) said they wanted Strange to testify so she could defend herself, and several others found her failure to testify “strange” or “weird” or noted it would have been “nice” if she had testified. According to Strange, the discussion therefore went well beyond a manifestation of curiosity—it 5 demonstrated the jurors expected Strange to defend herself and prove her innocence and suggested her failure to take the stand established her culpability. We are not persuaded. Nothing in the jurors’ declarations or testimony suggests they drew an adverse inference of guilt. To the contrary, all 12 jurors testified they did not give any weight to Strange’s failure to testify. Next we consider the length of discussion about Strange’s failure to testify. Three jurors (Nos. 142, 149, and 174) initially estimated that the discussion lasted about 30 minutes. A majority of the jurors, however, described the comments as “brief” or made in passing. And some did not recall any details about the discussion, which further suggests it was not significant. Our final consideration is whether the jurors were reminded not to consider Strange’s decision not to testify. Six jurors (Nos. 124, 132, 142, 174, 185, and 193) could not recall anyone reminding them during deliberations that they were not to discuss Strange’s failure to testify. However, three jurors (Nos. 114, 143, and 149) recalled someone reminding them during deliberations that they could not consider the fact that Strange did not testify. And more than half the jurors recalled the trial court’s instruction, or confirmed they were otherwise aware, that Strange had a right not to testify or the jury should not consider Strange’s failure to testify when determining her guilt. We recognize this record is a mixed bag, so to speak. Some jurors described the discussion as quite brief; others suggested it was considerable (30 minutes or more). Some jurors recalled being reminded they were not to consider Strange’s decision not to testify; others did not. On balance, however, there is nothing to suggest the jurors inferred guilt from Strange’s 6 decision. To the contrary, the jurors either were reminded or were aware they should not consider Strange’s decision not to testify, and they uniformly testified they did not give her failure to take the stand any weight when evaluating her guilt. On this record, there is not a reasonable probability of actual harm resulting from the misconduct, and the trial court properly denied Strange’s motion for new trial. DISPOSITION The judgment is affirmed.

SCOTT, J.

WE CONCUR:

MOORE, ACTING P. J.

DELANEY, J.