People v. Lamas CA3

Filed 4/14/21 P. v. Lamas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Glenn) ----

THE PEOPLE, C090384

Plaintiff and Respondent, (Super. Ct. No. 19CR13722)

v.

OCTAVIO LAMAS,

Defendant and Appellant.

Defendant Octavio Lamas appeals from the trial court’s denial of his request for a new trial following the discovery that the bailiff charged with safeguarding the jury was present for some portion of the jury’s deliberations. Defendant argues the bailiff’s presence during deliberations was per se prejudicial in violation of the federal and state Constitutions. The People agree that the bailiff’s presence during jury deliberations was error, but contend it created a rebuttable presumption of prejudice. Nevertheless, the People concede that the record does not support the trial court’s finding that the presumption of prejudice was rebutted, and ask us to remand the matter for further proceedings.

1

We agree with the People. We will conditionally reverse the judgment and direct the trial court to conduct further proceedings to determine whether the presumption of prejudice is rebutted. If the presumption of prejudice is rebutted, the judgment shall be reinstated. BACKGROUND On April 16, 2019, a jury found defendant guilty of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (f)(2)),1 resisting arrest (§ 69), and violation of a criminal protective order (§ 273.6, subd. (a)). On April 22, 2019, the trial court disclosed to the parties that it had learned the bailiff was present for part of the jury’s deliberations. The defense indicated it would be researching a motion for a mistrial, including the possibility of requesting an investigation concerning any impact this may have had on the jury’s deliberations, especially in reference to the resisting arrest count. The parties did not ask the trial court to release juror information at that time. On June 3, 2019, defendant filed a motion for a new trial, arguing the bailiff’s presence during deliberations denied defendant a fair trial and there was no earlier opportunity to raise the issue. Defendant argued the bailiff’s presence infringed on the deliberation’s secrecy thereby inhibiting the deliberations, and that it was unlawful under section 167 [unauthorized recording, listening, or observing deliberation of jury]. Defendant asked that the trial court grant his motion even though the parties and the court had not interviewed the jurors. The People’s opposition disagreed, arguing the verdict was presumed correct, none of the statutory bases for granting a new trial applied, a violation of section 167 did not occur because the jury had been aware of the bailiff’s presence, and defendant had