FACTS AND PROCEEDINGS BELOW
Defendant was convicted of committing lewd acts upon a child, his stepdaughter, I. He appeals and seeks relief via habeas corpus on the ground of juror misconduct. We ordered the petition for habeas corpus considered with defendant's appeal.
Following defendant's conviction, his counsel learned that during deliberation some of the Spanish-speaking jurors had expressed disagreement with some of the English translation of defendant's testimony given in Spanish. Specifically, Juror Leon told her fellow jurors defendant testified he had "pushed" I. when attempting to get her to do her chores rather than that he "touched" her, as the interpreter translated his testimony. According to a statement Ms. Leon made to defendant's investigator, other Spanish-speaking jurors also retranslated portions of the testimony for the benefit of the non-Spanish-speaking jurors. There is no evidence as to the specific retranslations by these other jurors.
For the reasons set forth below, we affirm the judgment and deny the writ.
1. Did a juror commit misconduct in retranslating for other jurors a portion of testimony as translated by the court interpreter?
2. If so, was this misconduct prejudicial under the facts of this case?
3. Where there was evidence other Spanish-speaking members of the jury told the non-Spanish-speaking jurors the court interpreter made mistakes in translating testimony from Spanish to English and retranslated some of the testimony for the other jurors, did the trial court err in not conducting an evidentiary hearing into the nature, scope and potential prejudice to defendant of the retranslated testimony?
I. IT IS MISCONDUCT FOR A JUROR TO RETRANSLATE FOR OTHER JURORS THE TESTIMONY AS TRANSLATED BY THE COURT-APPOINTED INTERPRETER.
"Even if, as the State suggests, a translation of the recording would reveal that the conversations thereon are totally admissible, we nonetheless must conclude that the potential of some members of the jury interpreting the otherwise incomprehensible testimony for other members of the jury is so fraught with the danger of prejudice that what is actually on the recording can serve only to exacerbate the prejudice." (469 So.2d at p. 925.)
The present case can also be analogized to numerous California cases holding it is misconduct for a juror to refer to a dictionary for the definition of a term used but not defined in an instruction. (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 323 [276 Cal.Rptr. 430], and cases cited therein.)
Here, Juror Leon committed misconduct by failing to rely on the court interpreter's translation, as she promised she would during voir dire. She committed further misconduct by sharing her personal translation with her fellow jurors thus introducing outside evidence into their deliberations.
If Juror Leon believed the court interpreter was translating incorrectly, the proper action would have been to call the matter to the trial court's attention, not take it upon herself to provide her fellow jurors with the "correct" translation.
II. UNDER THE FACTS OF THIS CASE, A JUROR'S RETRANSLATION OF "TOUCH" TO "PUSH" DID NOT PREJUDICE THE DEFENDANT.
"A judgment adverse to a defendant in a criminal case must be reversed or vacated `whenever ... the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.' [¶] `The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood
The presumption of prejudice is rebutted if the outside evidence is neutral or irrelevant to defendant's guilt. In Marshall a juror told his fellow jurors he had a background in law enforcement and the lack of evidence of prior criminal activity by defendant did not mean the defendant had no criminal record "because juvenile records are automatically sealed at 18 years of age." (Marshall, supra, 50 Cal.3d at p. 947.) The court found this statement constituted juror misconduct but was not prejudicial. Even assuming the juror's comment inferred defendant might have a criminal background "such an inference was immaterial under the penalty charge given." (Id. at p. 951; see also People v. Sutter (1982) 134 Cal.App.3d 806, 821 [184 Cal.Rptr. 829] [juror's unauthorized view of the scene not prejudicial because "the scene of the crime was not at issue and there were no conflicts in the evidence ..."].)
Again looking to dictionary cases, we find the determination of prejudice has turned on the degree of significance the defined word bore to an issue in the case. In People v. Karis (1988) 46 Cal.3d 612, 645 [250 Cal.Rptr. 659, 758 P.2d 1189], the court held it was misconduct of a juror to look up the definition of "mitigate" and share it with the rest of the jury. The misconduct was found not to be prejudicial, however, because the dictionary definition "may not have been particularly helpful to the jury" in understanding instructions on mitigating circumstances. Furthermore, defendant offered no persuasive argument the jury had been misled in determining mitigating circumstances. On the other hand, in People v. Harper (1986) 186 Cal.App.3d 1420, 1428 [231 Cal.Rptr. 414], the court observed it would be prejudicial misconduct in a murder case for a juror to substitute a dictionary definition of murder for the definition provided in the trial court's instructions.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FAILING TO CONDUCT AN EVIDENTIARY HEARING INTO POSSIBLE PREJUDICIAL MISCONDUCT BY OTHER JURORS.
"This does not mean ... that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct. The hearing should not be used as a `fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred."
The declaration of Juror Leon and the report of the public defender's investigator suggest other Spanish-speaking jurors besides Leon made comments to the non-Spanish-speaking jurors about inaccuracies in the court interpreter's translation of testimony. The evidence also suggests where a conflict existed between the court interpreter's translation and the Spanish-speaking jurors' translations, the jury accepted the translation by the Spanish-speaking jurors. The People submitted no counterdeclarations. Therefore, we will assume the truth of these allegations.
The actions of the other Spanish-speaking jurors in retranslating the testimony was misconduct. (See pp. 303-304, ante.) However, unlike the retranslation by Juror Leon, the evidence does not show specifically what words the other jurors retranslated.
If the only evidence before the trial court was that one or more jurors had retranslated part of the testimony for other jurors, this might be a sufficient showing to require an evidentiary hearing into exactly what words had been retranslated. Without knowing this, the court could not make an informed decision as to whether the presumption of prejudice was rebutted. (See discussion, ante, pp. 304-305.)
No juror, except Ms. Leon, found the interpreter's errors significant enough to mention to the court. The only error Ms. Leon could remember was minor and did not prejudice the defendant. The defendant did not request an evidentiary hearing. For these reasons, we conclude the trial court did not abuse its discretion in failing to conduct an evidentiary hearing.
The judgment is affirmed. The petition for writ of habeas corpus is denied.
Lillie, P.J., and Woods (Fred), J., concurred.
Appellant's petition for review by the Supreme Court was denied August 14, 1991.