People v. Paine CA3

Filed 3/24/15 P. v. Paine CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C074375

Plaintiff and Respondent, (Super. Ct. No. CRF11-271)

v.

ANTHONY TODD PAINE,

Defendant and Appellant.

A jury convicted defendant Anthony Todd Paine of continuous sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a)) and found true an allegation that the abuse involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). Defendant was sentenced to state prison for 16 years. On appeal, defendant contends the trial court violated its duty to investigate juror misconduct. He also takes the fallback position that if we decline to address his juror misconduct contention because of counsel’s failure to raise the issue in the trial court,

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then he received ineffective assistance of counsel. We address defendant’s primary contention and conclude there was no juror misconduct and, therefore, the trial court had no duty to investigate. STATEMENT OF FACTS Since the sufficiency of the evidence is not an issue, we briefly set forth the facts. Defendant was convicted of one count of continual sexual abuse against M., his stepgranddaughter. Defendant was married to M.’s grandmother. M. frequently stayed with defendant and her grandmother. During M.’s stays, starting when she was about 11 years old, defendant rubbed her chest on more than three occasions and rubbed her vaginal area at least three times during the accusatory period. M. did not tell her parents or her grandmother about the touching because she feared they would be angry with her. M. did tell her friend about the touching and the friend persuaded her to tell her teacher, which she did. Defendant testified, denying ever molesting M. Defendant thought M. was lying because she was jealous of his relationship with her grandmother. DISCUSSION Defendant contends the trial court violated its duty to conduct a hearing into juror misconduct based on a letter given to the court by Juror No. 2 after the verdict had been rendered and the jury dismissed. The letter cited various reasons why Juror No. 2 believed that some of the jurors had engaged in misconduct, including the following portion upon which defendant relies: “Eight of the twelve [jurors] decided [defendant] was guilty. Four of us were not convinced. [¶] When asked why those who reached a guilty [verdict] had come to that conclusion, two members said his body language and the way he presented his testimony indicated he was guilty. These jurors indicated that they had received training in reading body language and that [defendant’s] behavior clearly indicated he was not telling the truth.”