People v. Merritt CA1/4

Filed 11/4/24 P. v. Merritt CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A168414 v. (Lake County AUSTIN TYLER MERRITT, Super. Ct. No. CR963871) Defendant and Appellant.

MEMORANDUM OPINION1 Austin Tyler Merritt appeals from the trial court’s denial of his motion for new trial. After trial, Merritt brought a motion for new trial under Penal Code section 1181, subdivisions (3), (4), and (6).2 The motion was based upon a letter written by a juror to the court. In the letter, the juror stated, “I had a lot of ‘reasonable doubt’. However, I was the only one of the twelve, and after some deliberation, it became obvious that none of the other eleven, some of whom were adamant, would ever change their minds, so I felt compelled to

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We do not belabor the facts because our opinion is unpublished and the parties know, or should know, “the facts of the case and its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.) 2 All further references are to the Penal Code unless otherwise

specified.

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consent to the consensus.” On appeal, Merritt raises only subdivisions (3) and (4) of section 1181. We address Merritt’s arguments under these provisions below and affirm the trial court’s denial of Merritt’s motion for new trial. Section 1181 permits the court to grant a new trial: “3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; [and] [¶] 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all jurors.” Here, Merritt contends the verdict should be reversed because of both jury misconduct and failure to convict by a unanimous jury. Moreover, Merritt argues the trial court erred in not conducting a further inquiry. Whether the trial court erred in denying Merrit’s motion for new trial or refusing to inquire further of the juror who authored the letter is subject to abuse of discretion. (People v. Dykes (2009) 46 Cal.4th 731, 810.) Merritt’s arguments that the court abused its discretion are without merit. Merritt’s contention that a new trial should have been granted because of juror misconduct is not supported by competent evidence. “ ‘It is settled . . . that “a jury verdict may not be impeached by hearsay affidavits.” ’ ” (People v. Dykes, supra, 46 Cal.4th at p. 811.) Here, the trial court had a letter authored by a juror rather than a sworn affidavit. Thus, the trial court could not have granted a new trial “in the absence of sworn juror affidavits.” (People v. Bryant (2011) 191 Cal.App.4th 1457, 1461.) And while Merritt argues the court should have conducted further inquiry “where there was a strong possibility that further inquiry of the letter-writing juror would have uncovered misconduct,” the court had no duty to conduct any