People v. Renteria CA1/3

Filed 9/30/15 P. v. Renteria CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Appellant, A143345 v. FERNANDO DANIEL RENTERIA, (City & County of San Francisco Super. Ct. No. 222161) Defendant and Respondent.

The trial court vacated a jury verdict and granted defendant Fernando Daniel Renteria’s motion for a new trial following an evidentiary hearing in which the court found that prejudicial juror misconduct occurred during deliberations. The trial concerned robberies unrelated to gang activity, yet a juror injected an opinion explicitly based on extraneous information obtained as a law enforcement officer that defendant is the member of a dangerous street gang. The district attorney appeals. We shall affirm the order. Summary of Evidence Presented at Trial Resolution of the issues raised on appeal does not require a detailed statement of the evidence. A short summary suffices. On the night of April 22, 2014, in little over an hour three separate robberies were committed in San Francisco within one and a half miles of each other. The three victims each testified they were walking alone on a city street when two men, one with a handgun, robbed them of their cell phones and wallets. Most of the gunman’s face was

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obscured by a bandana, according to two victims, or a ski mask according to the third victim. The third victim electronically traced the location of his stolen phone and informed the police of the phone’s location. The police arrived at that location less than 20 minutes after the robbery and found a vehicle with a female driver and two male passengers, one of whom was defendant. The police detained the occupants and recovered from inside the vehicle the traced phone and other stolen items belonging to the victims. In a jacket on the vehicle’s back seat the police also found an air pellet gun resembling a firearm. One of the victims testified he recognized defendant as the gunman based on defendant’s eyes and another based on defendant’s ears and eyebrows. The third victim could not make an identification. Defendant denied committing the robberies. The defense claimed the robberies were committed by the other male passenger in the vehicle, Phillip, and another unidentified man. Defendant testified that he and his girlfriend had picked up his friend Phillip just before they were stopped by the police and noticed that Phillip had cell phones and a pellet gun when he entered the vehicle. The defense challenged the victims’ identification of defendant as the gunman by eliciting on cross-examination the victims’ admission that none had seen any tattoos on the gunman. Defendant has tattoos on his neck and right hand that were displayed to the jury. The large tattoo on the back of defendant’s hand is an ornate character that was described at trial as the letter “B” by defense counsel and the letter “R” by one of the victims looking at defendant from the witness stand. A photograph of the tattoo shows either interpretation to be reasonable. In closing argument to the jury, defense counsel asked: “How is it possible that if [defendant] is up close and personal with three separate people that not one of them remembers such a distinctive obvious tattoo?” Verdict and New Trial Motion The jury found defendant guilty of three counts of second degree robbery. (§ 211.) Defendant filed a motion for new trial asserting juror misconduct, among other claims. (§ 1181.) Defendant claimed the jury strayed from the subject of whether the victims’