MAURO, J., Concurring. The majority opinion states that “even assuming Juror Number One’s Facebook postings are protected by the [Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.)], that protection applies only [869]as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.” (Maj. opn., ante, at p. 864.)
It is true the compulsion is on Juror Number One to “consent” to the production of documents. But the trial court is seeking the documents from Facebook, not from Juror Number One. The trial court crafted its order to take advantage of the consent exception in the SCA (Stored Communications Act). (18 U.S.C. § 2702(b)(3).) It ordered Juror Number One to “execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made by [Juror Number One] during trial.” In essence, the trial court’s order is an effort to compel indirectly (through Juror Number One) what the trial court might not be able to compel directly from Facebook. This is arguably inconsistent with the spirit and intent of the protections in the SCA. Compelled consent is not consent at all. (See, e.g., Schneckloth v. Bustamonte (1973) 412 U.S. 218, 228, 233 [36 L.Ed.2d 854, 863, 866, 93 S.Ct. 2041] [coerced consent is merely a pretext for unjustified intrusion].)
The majority opinion explains that “[i]f the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook.” (Maj. opn., ante, at p. 865.) This may ultimately be true, but here the trial court bypassed a determination as to whether it could compel Juror Number One to produce the documents. Defendant Demetrius Royster had issued subpoenas to both Facebook and Juror Number One directing them to produce Juror Number One’s postings. Facebook and Juror Number One both moved to quash the subpoenas. The trial court continued the hearing on Facebook’s motion to quash and granted Juror Number One’s motion to quash, ruling that the subpoena against Juror Number One was overbroad. The trial court then concluded it was “unnecessary” to determine whether it could directly compel Facebook or Juror Number One to produce the documents in their possession.1 Thus, the trial court compelled consent even though other statutory procedures to directly compel production of the documents were still available and had not yet been exhausted.
Nonetheless, Juror Number One does not assert these specific concerns as contentions in his petition for writ of prohibition, perhaps recognizing that raising such procedural matters would merely delay resolution of the ultimate issues in the case. Instead, he argues the trial court’s order violated his rights under constitutional and federal law. He also asserts that the order was an unreasonable intrusion because there is no evidence the Facebook posts were [870]prejudicial. This final contention encompasses the appropriate balance between Juror Number One’s privacy concerns and defendants’ right to a fair trial, and it warrants further discussion.
Juror Number One’s Facebook posts violated the trial court’s instructions to the jury. (Pen. Code, § 1122, subd. (a)(1); CALCRIM No. 101.) This was serious misconduct giving rise to a presumption of prejudice. (In re Hitchings (1993) 6 Cal.4th 97, 118 [24 Cal.Rptr.2d 74, 860 P.2d 466]; accord, People v. Wilson (2008) 44 Cal.4th 758, 838 [80 Cal.Rptr.3d 211, 187 P.3d 1041] (Wilson).)
“The disapproval of juror conversations with nonjurors derives largely from the risk the juror will gain information about the case that was not presented at trial.” (People v. Polk (2010) 190 Cal.App.4th 1183, 1201 [118 Cal.Rptr.3d 876].) Nonetheless, the presumption of prejudice that arises from discussing the case with nonjurors “is rebutted ... if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (In re Hamilton (1999) 20 Cal.4th 273, 296 [84 Cal.Rptr.2d 403, 975 P.2d 600], original italics (Hamilton); accord, In re Lucas (2004) 33 Cal.4th 682, 697 [16 Cal.Rptr.3d 331, 94 P.3d 477].)
As the California Supreme Court explained in Hamilton, “The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life’ [citation] and of society’s strong competing interest in the stability of criminal verdicts [citations]. It is ‘virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ [Citation.] Moreover, the jury is a ‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] ‘[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. . . . [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.’ [Citation.]” (Hamilton, supra, 20 Cal.4th at p. 296.)
Accordingly, juror conversations involving peripheral matters, rather than the issues to be resolved at trial, are generally regarded as nonprejudicial. (Wilson, supra, 44 Cal.4th at pp. 839-840 [“trivial” comments to a fellow juror were not prejudicial where not meant to persuade]; People v. Page (2008) 44 Cal.4th 1, 58-59 [79 Cal.Rptr.3d 4, 186 P.3d 395] [circulation of a cartoon in the jury room that did not bear on guilt was not misconduct]; People v. Avila (2006) 38 Cal.4th 491, 605 [43 Cal.Rptr.3d 1, 133 P.3d 1076] [871][juror statements disparaging counsel and the court were not material because they had no bearing on guilt]; People v. Stewart (2004) 33 Cal.4th 425, 509-510 [15 Cal.Rptr.3d 656, 93 P.3d 271] [a juror who complimented the appearance of the defendant’s former girlfriend committed nonprejudicial misconduct of a “ ‘trifling nature’ ”]; People v. Majors (1998) 18 Cal.4th 385, 423-425 [75 Cal.Rptr.2d 684, 956 P.2d 1137] [general comments by jurors that did not address the evidence were not prejudicial]; People v. Loot (1998) 63 Cal.App.4th 694, 698-699 [74 Cal.Rptr.2d 324] [a juror who asked a public defender whether the prosecutor was “ ‘available’ ” committed “technical,” but nonprejudicial, misconduct].)
In determining whether communications are prejudicial or if the presumption of prejudice has been rebutted, the court must consider the “ ‘ “nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” ’ [Citation.]” (Wilson, supra, 44 Cal.4th at p. 839, italics omitted; see People v. Polk, supra, 190 Cal.App.4th at pp. 1201-1202.)
Four jurors testified under oath at the posttrial hearing. Juror No. 5 testified that she had access to Juror Number One’s Facebook postings when she became a Facebook friend of his after the jury was discharged. She said she did not receive any Facebook communications regarding the trial during trial or deliberations. After the jury was discharged, Juror No. 5 found at least one Facebook posting by Juror Number One that he made during the trial, but she did not remember any others. She did not notice any comments in response to Juror Number One’s post. When presented in the posttrial hearing with a copy of five pages from Juror Number One’s Facebook wall—exhibit D, pages 19 through 23 in the record—Juror No. 5 said they appeared to be the Facebook pages that she had previously seen. Juror No. 5 recognized on those five pages the Facebook posting on May 18, at 7:36 a.m. from Juror Number One that she had seen. Juror No. 5 testified that there was nothing missing on the copy of the five Facebook pages from what she remembered seeing. She is still a Facebook friend with Juror Number One, and other jurors had been “friended” by Juror Number One, too. Juror No. 5 did not talk to the other juror Facebook friends about what Juror Number One had posted.
Exhibit D, the copy of Facebook postings, includes the following relevant entries (with original ellipsis points):
“May 17 at 3:09pm via Facebook for iPhone”: “Week 5 of jury duty . . . [.]” Below that post was the following comment from a Facebook friend later that afternoon: “[W]ow . . . never been on jury duty that long . . . .” And below that, another friend posted a comment later that evening, saying “5 weeks, difil [szc] de creer, pues que hicieron para estar en un caso tan largo” which [872]could be understood to mean “5 weeks, hard to believe, but what did they do in order to be in a case so long.”
“May 18 at 7:36am”: “Back to jury duty can it get any more BORING than going over piles and piles of metro pcs phone records . . . .uuuggghhhhhh.” Below the post, a Facebook friend indicated that he or she “like[d]” that comment.
“May 24 at 12:28am”: “Jury duty week six . . . [.]” The copy indicates there were four comments from friends, but only two are visible on the copy. One comment that evening says, “did they convict [S]acramento for pretending to have a pro basketball team?” The other comment that evening says, “You still doing that shit? Sorry to hear holmes!”
“June 27 at 11:21pm via Facebook for iPhone”: “Great to have my life back to normal .... NO MORE JURY DUTY . . . .” The copy indicates that the post was made after the jury had been discharged, and that there were five comments to the post.
Juror Number One testified next. He admitted posting Facebook entries sporadically about the trial even though the trial judge had instructed the jurors not to talk about the case with anyone. He authenticated exhibit D as depicting him on Facebook. He testified that he did not recall posting anything other than that he was on jury duty, counting down the days, and in one posting he said the piles and piles of Metro PCS phone record evidence was boring and that he almost fell asleep. He said if they had access to his Facebook that day, he did not think they would still find the postings he made during the trial, because he tries to delete a lot of things. But he said he had no idea prior to the hearing why he had been called in for the hearing.
Juror Number One testified that he never had verbal discussions with people about the case. He said he never talked to other jurors about the Facebook postings, and they did not know about them during the trial.
Juror No. 8 testified that Juror Number One never mentioned Facebook to her, she does not use Facebook, and she does not know anything about it. Juror No. 5 told her, as they were waiting in the hall prior to the posttrial hearing, that Juror Number One had posted on Facebook, but Juror No. 8 did not have any personal knowledge about that.
Juror No. 3 testified that he was not aware that any juror might have been doing anything with Facebook, and he had no Facebook communications with other jurors.
[873]The evidence presented at the posttrial hearing indicated that the Facebook posts involved peripheral matters and did not involve issues to be resolved at trial. Although Juror Number One admitted deleting Facebook posts, he testified that the only things he ever posted regarding the trial were comments about the number of weeks he was on jury duty, counting down the days, and in one post mentioning that the phone record evidence was boring. Juror No. 5 and Juror Number One both testified that exhibit D accurately reflected the type of Facebook posts made by Juror Number One about the trial. There was no evidence that Juror Number One deleted Facebook posts in anticipation of the posttrial hearing. Juror No. 5 said in her declaration that the alleged inappropriate conduct did not influence her decision in the case, and the other jurors did not have access to the posts during the trial and did not talk about them during the trial. After the hearing, the trial court said the testifying jurors were credible and seemed to be doing their very best to be open and honest. The trial court added, “I did not get an impression from any one of the four jurors that there was an effort to hide anything.”
The question is whether this evidentiary record rebuts the presumption of prejudice. Juror Number One says it does. The majority opinion says this record cannot rebut the presumption until all of the Facebook posts are reviewed by the trial court, noting that “Juror Number One would bar the trial court from examining the posts to determine if there was prejudice because there has been no showing of prejudice.” (Maj. opn., ante, at p. 868.)
The majority opinion is correct that there has been no showing of prejudice on this record. Moreover, the evidence elicited at the posttrial hearing could be construed to negate the possibility of prejudice, even in the deleted posts. Thus, it is possible to conclude, as Juror Number One urges, that the record does not establish a substantial likelihood that one or more jurors were actually biased against defendants. (Hamilton, supra, 20 Cal.4th at p. 296.)
That might have been the end of the analysis if the trial court had made such findings and declined to continue the investigation. But here, the trial court—which was in the best position to evaluate the evidence—determined that it needed to see the deleted Facebook posts in order to rule out prejudice. At the same time, the trial court sought to balance Juror Number One’s privacy concerns by ordering in camera review of the posts.
Although a trial court must avoid a “ ‘fishing expedition’ ” when considering allegations of alleged misconduct (People v. Hedgecock (1990) 51 Cal.Sd 395, 419 [272 Cal.Rptr. 803, 795 P.2d 1260]), I am unaware of any authority preventing a trial court from taking steps to rule out prejudice once juror misconduct has been established. Because prejudice is presumed based on Juror Number One’s misconduct in posting about the trial on Facebook, and [874]because we do not have all of Juror Number One’s Facebook posts regarding the case, I cannot say there is “no substantial likelihood” Juror Number One was biased against defendants. (Hamilton, supra, 20 Cal.4th at p. 296, italics omitted.) Under these circumstances, the balance between Juror Number One’s privacy concerns and defendants’ right to a fair trial tips in favor of defendants.
Accordingly, I concur in the disposition.
A petition for a rehearing was denied June 21, 2012, and petitioner’s petition for review by the Supreme Court was denied August 22, 2012, S203713.
Counsel for Juror Number One admitted during oral argument in this court that Facebook sent him the posts sought by the trial court.