DETJEN, Acting P.J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF149855B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Anthony Scott Searles-Harris (defendant) and Randy Dale Miller (Miller) were jointly charged with acting in concert to commit forcible oral copulation upon K.M. and C.W. (Pen. Code, § 288a, subd. (d)(1) [count 1]); acting in concert to commit forcible oral copulation upon K., a minor under 14 years of age (id., subd. (d)(2) [count 2]); participating in oral copulation with K., a minor under 14 years of age and more than 10 years younger (id., subd. (c)(1) [count 5]); participating in oral copulation with K., a minor under 18 years of age (id., subd. (b)(1) [count 6]); and committing a lewd or lascivious act upon K., a minor under 14 years of age (§ 288, subd. (a) [count 7]). Defendant was separately charged with making criminal threats (§ 422 [counts 3 & 4]); committing a lewd or lascivious act upon K., a minor under 14 years of age (§ 288, subd. (a) [count 8]); participating in oral copulation with K., a minor under 14 years of age and more than 10 years younger (§ 288a, subd. (c)(1) [count 9]); participating in oral copulation with C., a minor under 18 years of age (id., subd. (b)(1) [count 10]); possessing child pornography (§ 311.11, subd. (a) [count 11]); annoying or molesting C., a minor under 18 years of age (§ 647.6, subd. (a)(1) [count 12]); opening or maintaining a place for the purpose of unlawful selling, giving away, or using a controlled substance (Health & Saf. Code, § 11366 [count 13]); committing an assault with a firearm (§ 245, subd. (a)(2) [count 14]); and contributing to the delinquency of minors (§ 272 [count 15]). Prior to trial, the case against Miller was resolved. At the close of the People's case-in-chief, the People dismissed counts 3, 4, 13, and 14. During defendant's case, the People dismissed count 15.
In accordance with our Supreme Court's policy regarding protective nondisclosure, we identify certain individuals by their initials or their given name. No disrespect is intended.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Miller is not a party to this appeal.
The jury found defendant guilty as charged in counts 2, 8, and 9, but could not reach a verdict on counts 1, 5 through 7, and 10 through 12. The trial court declared a mistrial as to the deadlocked counts, which were then dismissed on the motion of the People. Defendant's motion for a new trial based on juror misconduct was denied. The court imposed the middle term sentence of 12 years on count 2 and stayed execution of the middle term of six years on count 8 and the middle term of six years on count 9 pursuant to section 654.
On appeal, defendant contends: (1) the evidence did not support the conviction for forcible oral copulation on count 2; (2) the trial court should have conducted an evidentiary hearing to inquire into the alleged juror misconduct; and (3) defense counsel rendered ineffective assistance by failing to request an instruction on corroboration of accomplice testimony. For the reasons set forth below, we reverse the conviction on count 2 and remand for resentencing.
STATEMENT OF FACTS
I. Prosecution's case-in-chief.
a. Lisa G.
On July 29 or 30, 2011, Lisa G. became aware that her daughter Savanna, then 13 years old, attended parties at a residence on Oildale Drive in Bakersfield. On the night of July 30, 2011, Lisa G. passed by the house and "saw a bunch of kids out drinking in the yard . . . ." One of these "kids" was C. Lisa G. called 911 and reported underage drinking. A sheriff's deputy dispatched to the scene verified the address on Oildale Drive.
b. Stormy
During the summer of 2011, Stormy, then 15 years old, attended four or five parties at the residence on Oildale Drive. Defendant and Harry Duckworth lived at that residence. Several of Stormy's schoolmates under 18 years of age also attended these gatherings, including K., C., Bryant, and Shelbie. Stormy saw K. "three or four times" and C. "[a]ll five times."
According to Stormy, "[t]here w[ere] more minors . . . than adults" at these parties. In addition, whenever she was introduced to an adult, she was either asked about her age or identified as a minor. Stormy once observed defendant handing out beer to various minors. She herself "did a shot of" "hard liquor" on one occasion and "shotgunned a beer" on another occasion.
Defendant once showed Stormy and Duckworth video footage on his camcorder. In the footage, an unidentified male carried a case of beer into a bathroom, where K. and C. were naked in the bathtub. When the girls indicated they "wanted to get drunk," they were told "they would get to drink" "if they had done foreplay or sexual intercourse." K. and C. proceeded to engage in an act of oral copulation. Defendant, who was recording the act, turned the camcorder toward himself and "kind of did like a thumb's up like he digged it . . . ."
c. Bryant
During the summer of 2011, Bryant, then 17 years old, attended "drinking parties" at the residence on Oildale Drive. He knew K. and C. but only saw the latter at the house. Before the end of the summer, defendant told "everybody" "he had a video of K[.] and C[.] going down on each other" "in his bathroom in the bathtub." Bryant did not view the footage.
d. K.
During the summer of 2011, K., then 13 years old, attended at least four or five parties at the residence on Oildale Drive. At these parties, she "[go]t drunk." Defendant, who was aware of K.'s age, provided the alcohol "[e]very single time." He also supplied marijuana and pills, which he claimed were Xanax and/or Vicodin. K. remembered the house had surveillance cameras that would let partygoers know "when the cops came" so they could "run out the back door."
At one party, which transpired sometime after July 4, 2011, but before August 2011, defendant offered K. and C. money and drugs if they "made a video for him" "t[a]k[ing] a shower" and engaging in an act of oral copulation. He gave the girls pills, which he claimed were Vicodin, and filmed them naked in the bathtub. At defendant's direction, K. "place[d] [he]r mouth" on C.'s vagina and vice versa. When two male guests entered the bathroom, the girls stopped because they were embarrassed and "already uncomfortable enough as it was." The following day, defendant showed the footage to K. and promised not to share it with other people.
A "couple of weeks" after the filming, K. and C. were at the residence for another party when defendant "made everybody leave" except them. When they attempted to leave, he told them to "stay there" because "he had a job for [them]." Thereafter, Miller arrived. Defendant offered K. and C. money if they gave Miller a "blow job." The girls accepted and proceeded to orally copulate Miller's penis in defendant's bedroom while defendant waited in the living room. Afterward, however, defendant refused to pay them because Miller "didn't finish."
According to K., at or around the time of the filming and the "blow job," defendant warned her and C. that "if [they] told anybody what he was doing or what [they] were doing," i.e., "that stuff . . . with [Miller] and the stuff . . . with the video," "he would kill [them]." He also mentioned "he had already killed somebody before," "he had buried them in his backyard," and "[they] would end up just like them if [they] said anything." K. "wasn't scared then . . . ." She did not believe defendant would kill her or C. because he was their friend. Moreover, K. did not believe he had buried someone in his backyard. At trial, however, she was "[n]ow" fearful because she was "putting [defendant] on blast" in his presence.
In defendant's living room, a mirror displayed the words "[t]he fuck mirror" and the names of several girls 18 years of age or younger, including K., C., Becca, Mercedes, Hannah, Monique, and Shelbie.
e. C.
During the summer of 2011, C. attended more than five parties at the residence on Oildale Drive. Several of her schoolmates under 18 years of age also attended these gatherings, including K. At these parties, C. and other partygoers consumed beer and pills, both of which were provided by defendant.
C. turned 18 years old on July 10, 2011. She recounted two sexual encounters that occurred before this date: (1) defendant filmed her "plac[ing] [he]r mouth on" K.'s vagina and vice versa while they were naked in a bathtub; and (2) defendant "had [her] and K. go to a room" and orally copulate Miller.
According to C., defendant told her "not to tell anyone" about the partying, the drinking, and the pills. She was "okay" with the request because she "was young" and "wanted to drink." Defendant never threatened to kill C. and did not indicate "what would happen to [her] if [she] told anyone about the drinking and the pills."
C. signed her name on a mirror in defendant's house sometime during the summer of 2011. She saw K. and other friends sign the same mirror.
f. Miller
Miller has known defendant for approximately 15 years. He could not recall where defendant lived in the summer of 2011 because defendant "was homeless during that time," "was moving around here and there," and "never really had a spot that he stayed at." Miller did visit a residence on Oildale Drive owned by defendant's mother "a couple times."
Sometime in 2011, Miller received a phone call or text message from defendant at 2:00 a.m. asking him to "come over because [defendant] had some girls at his house." Miller went to the residence on Oildale Drive and met two girls. In defendant's bedroom, the girls removed Miller's pants and "place[d] their mouth[s] on [his] penis." Defendant and Miller never exchanged money.
Miller turned 27 years old on August 21, 2011.
g. Law enforcement.
On April 30, 2012, Sheriff's Deputy Michael Dorkin interviewed Stormy "with the intention of investigating . . . Duckworth." Upon learning about the film featuring K. and C., however, the focus shifted from Duckworth to defendant.
On July 12 or 13, 2012, Dorkin conducted a search at the Oildale Drive residence. No one was home at the outset. A note affixed to the front window advised that law enforcement needed defendant's express permission "to check the welfare or serve a search warrant." A mirror in the living room displayed the words "[t]he fuck mirror" and various names in different handwriting. Indoor monitors were connected to outdoor surveillance cameras. In a bedroom, Dorkin found defendant's driver's license or state identification card and May 4, 2012, court documents bearing his name. They listed the Oildale Drive residence as his home address. At some point during the search, defendant and his mother arrived.
Thomas Fugitt, an evidence technician employed by the Kern County Sheriff's Office, examined computers and hard drives seized from the Oildale Drive residence. On one computer, someone used the web search engine Google to look for the following terms: "CA statutory rape laws," "CA child molestation laws," and "child molestation laws, CA." Fugitt could not determine exactly when the "CA statutory rape laws" search was performed. He determined the other two searches were initially performed on April 1, 2012, and last accessed on June 28, 2012. The same computer contained photographs of defendant.
II. Defense's case-in-chief.
Defendant turned 27 years old on June 21, 2011.
Between 2009 and 2012, defendant and his ex-wife Toni Barber regularly exchanged custody of their daughter in front of the Oildale Drive residence which was owned by his grandfather. The surveillance cameras had already "been there for years" as part of the security system "prior to [defendant] moving there."
During the summer of 2011, defendant lived in an apartment on the corner of Decatur Street and Hurrle Avenue. He "never attended any parties" at the Oildale Drive residence, which were thrown by Duckworth. Duckworth, not defendant, provided alcohol to minors at the house.
On November 13, 2011, defendant sent an e-mail to the Kern County Sheriff's Office "reporting . . . Duckworth for . . . statutory rape and child molestation against several minors." He detailed that he entered a bedroom at the Oildale Drive residence and came across Duckworth "having sexual relations" with Alicia and Monique.
Defendant has known Miller, his best friend, for about 21 years. He met C. "maybe two, three times" in October 2011 and considered her an acquaintance. On the other hand, defendant saw K. for the first time in 2014 during a pretrial proceeding. He denied encouraging K. and C. to "have sex" in exchange for alcohol and drugs; filming the girls "hav[ing] sex"; and arranging a "meeting" between the girls and Miller at the Oildale Drive residence.
Regarding the July 2012 search of the residence, defendant maintained the seized computer that was used to search for statutory rape and child molestation laws belonged to Barber. He added the computer could have been accessed by "[a]nybody in the residence." Defendant admitted writing the note that was posted on the front window but denied signing it.
Defendant, who goes by the nickname Tony, claimed another Tony, i.e., Tony Bishop, signed the note.
III. Prosecution's rebuttal.
a. Toni Barber.
Barber and defendant were legally married for two years. She gave birth to their daughter on May 28, 2009. The three lived at the Oildale Drive residence between June 2009 and July 2010. Following the divorce, defendant was granted visitation rights. From May to August 2011, custody exchanges took place at Barber's residence at the beginning of each visitation period and at defendant's residence on Oildale Drive, at the end of each period. During the summer of 2011, when Barber went to defendant's residence to pick up their daughter, she observed beer cans and/or empty beer boxes in the front yard "[a]t times" and underage girls sitting on the front porch "[a] time or two."
Barber was familiar with defendant's handwriting. She verified that he wrote the note affixed to the front window of 506 Oildale Drive.
b. Levi.
During the summer of 2011, Levi, then 16 years old, attended "drinking parties" at defendant's residence on Oildale Drive. He confirmed K. and C. also attended these parties. Levi denied watching a film of K. and C. engaging in an act of oral copulation and denied seeing defendant "give girls pills."
c. Law enforcement.
Kern County District Attorney Investigator Daniel Stevenson interviewed Levi on October 24, 2013. Levi related that "mostly juveniles" attended the parties at defendant's residence on Oildale Drive. At these parties, the guests ingested both alcohol and narcotics. Levi also mentioned he watched video footage of K. and C. "in a shower" engaging in an act of oral copulation.
On September 24, 2011, Sheriff's Deputy Andrew Berthiaume arrived at the Oildale Drive residence in response to a 911 call. Berthiaume knocked on the door and defendant answered. Defendant stated he lived at the house and was the person who called 911.
DISCUSSION
I. The conviction on count 2 was not supported by substantial evidence.
Defendant was convicted of acting in concert to commit forcible oral copulation upon K. (count 2); committing a lewd or lascivious act upon K. (count 8); and participating in oral copulation with K. (count 9). The incident underlying these counts was the girls' sexual interaction with Miller.
On appeal, defendant contends the conviction on count 2 must be reversed due to insufficient evidence. We agree.
a. Standard of review.
"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible[,] and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.]" (People v. Tripp, supra, at p. 955, italics omitted.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis.
"Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years." (§ 288a, subd. (d)(2).)
"[F]orce" refers to "the use of force sufficient to overcome the victim's will" (People v. Guido (2005) 125 Cal.App.4th 566, 576) and "does not carry a specialized legal definition" (ibid.). (See ibid. ["Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful."].)
"Fear" means either " '[a] feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension' " (People v. Reyes (1984) 153 Cal.App.3d 803, 810) or " '[e]xtreme reverence or awe, as toward a supreme power' " (ibid.). In addition, "the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. . . . [¶] [T]he objective component . . . asks whether the victim's fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim's subjective fear and took advantage of it." (People v. Iniguez (1994) 7 Cal.4th 847, 856-857.)
The record—viewed in the light most favorable to the prosecution—shows K. and C. attended a party at defendant's residence on July or August 2011. At some point, defendant "made everybody leave" except them. Although the girls tried to leave, they stayed after defendant told them "he had a job for [them]." When Miller arrived at the house, defendant offered the girls money to copulate his friend orally. K. and C. accepted and proceeded to do so in defendant's bedroom. According to K., at or around the time of this act, defendant said he would kill her and C. and bury them in his backyard "if [they] told anybody what he was doing or what [they] were doing." He made a similar remark a few weeks earlier at or around the time of the filming.
Lacking in the record is substantial evidence from which a rational trier of fact could find beyond a reasonable doubt that the sexual encounter with Miller was accomplished against K.'s will by means of force or fear of immediate and unlawful bodily injury. At the outset, K. as well as C. agreed to copulate Miller orally in exchange for money. Neither force nor fear induced them to submit to the act. It is true that a subsequent express or implied threat to harm the girls if they did not participate in the act would have nullified this consent. (See People v. Ireland (2010) 188 Cal.App.4th 328, 335-338 [while the victims agreed to engage in sex acts with the accused in return for money, any consent was negated once he produced a knife, held it against their throats, and threatened to hurt them if they did not proceed].) Here, however, defendant threatened to harm K. and C. if they revealed they gave Miller a "blow job," not if they refused or reneged on their agreement to give him one. Moreover, K. testified she "wasn't scared" after she heard the threat because she believed defendant, a friend, was merely exaggerating. That she became afraid three years later because she was testifying as a prosecution witness does not change the fact that she did not genuinely entertain a fear of immediate and unlawful bodily injury at the time of the threat.
We additionally note the jury was only instructed, as to count 2, pursuant to CALCRIM No. 1016—oral copulation in concert. They were not instructed on the requirement that the People prove force or fear (CALCRIM No. 1015). Nor did the prosecutor address the element of force or fear in her argument to the jury. On such a record, it is not clear the jury found that element proven beyond a reasonable doubt.
II. The trial court did not abuse its discretion when it denied defendant's motion for a new trial.
a. Background.
On October 30, 2014, defendant filed a motion for a new trial. The motion included a declaration from defense counsel which read in part:
"h. After the trial, the defense spoke to three jurors, Jurors [Nos.] 3, 5, and 6. Juror [No.] 5 was the jury foreperson . . . .
"i. All three jurors reported that [J]uror [No.] 4, . . . a licensed psychologist and former co-worker of [Juror No. 5], began to sway the jury towards a conviction on counts 2, 8 and 9, stating that it was his expert opinion that the victims in the case were displaying lapses in memory caused by the fact that they had been the victims of sexual assault;
"j. All three jurors stated that without the testimony of [J]uror [No.] 4 as an expert, [defendant] would not have been convicted. The defense has been unable to complete declarations under penalty of perjury from any of the jurors as yet."
On November 4, 2014, defendant filed a supplemental declaration from Juror No. 6, who alleged three of her fellow jurors—none of whom was Juror No. 4—refused to deliberate. In a reply filed on November 5, 2014, the prosecutor argued, inter alia, the declarations were inadmissible because they focused on jurors' mental processes. In a supplemental reply filed on November 12, 2014, the prosecutor asserted defense counsel's declaration was inadmissible hearsay.
At a November 13, 2014, hearing, defense counsel insisted Juror No. 5 "had some material things to say about the deliberations and how there was misconduct," but he was "not able to get" her "to write because we just couldn't connect." He asked the court to question Jurors Nos. 4, 5, and 6 about Juror No. 4's purported statement. Ultimately, the court denied the motion:
"[U]nder Evidence Code [s]ection 1150[, subdivision ](a), the Court is bound by that code section regarding whether there has been juror misconduct during the course of deliberations and when deciding a case. And it states, in part, no evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to . . . assent to or dissent from the verdict or concerning the mental processes . . . by which it was determined. . . .
"When considering the statements attributable to jurors in the declaration filed by [counsel] himself, this [C]ourt cannot consider those since they are hearsay and would, therefore, require the attachments of affidavits to at least consider the statements alleged when determining whether those statements are even appropriate for the Court's consideration.
". . . [W]hen considering page 5 of the motion, wherein it attributes three jurors stating that a fourth juror was a licensed psychologist and conducted himself in a certain way during deliberations, the Court did look at the declaration filed on behalf of Juror No. 6, which was presented under penalty of perjury, wherein, in Juror No. 6's declaration, that conduct and information certainly is absent. So, to the extent that the Court has already decided and has stated on the record it would not consider any statements from jurors to defense counsel, that would be one great reason why not."
b. Standard of review.
"The trial court is vested with broad discretion to act upon a motion for new trial." (People v. Dykes (2009) 46 Cal.4th 731, 809 (Dykes).) Where a motion is based upon juror misconduct, the court "has discretion to determine whether to conduct an evidentiary hearing to resolve factual disputes raised by a claim of juror misconduct." (Ibid.)
" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (People v. Carter (2005) 36 Cal.4th 1114, 1210.) Likewise, "[t]he trial court's decision whether to conduct an evidentiary hearing on the issue of juror misconduct will be reversed only if the defendant can demonstrate an abuse of discretion." (Dykes, supra, 46 Cal.4th at p. 810.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 ["A court abuses its discretion when its ruling 'falls outside the bounds of reason.' "].)
"We review the correctness of the trial court's ruling at the time it was made . . . and not by reference to evidence produced at a later date." (People v. Welch (1999) 20 Cal.4th 701, 739.)
c. Analysis.
"When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . . [¶] . . . [¶] . . . [w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented . . . ." (§ 1181, subd. 3.)
"In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. (Evid. Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.]" (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704; accord, People v. Engstrom (2011) 201 Cal.App.4th 174, 182; People v. Bryant (2011) 191 Cal.App.4th 1457, 1467; People v. Garcia (2001) 89 Cal.App.4th 1321, 1338; People v. Duran (1996) 50 Cal.App.4th 103, 112-113; People v. Perez (1992) 4 Cal.App.4th 893, 906.)
We conclude the court did not abuse its discretion when it denied defendant's motion for a new trial based Juror No. 4's alleged misconduct. First, while "Evidence Code section 1150 authorizes the use of jurors' affidavits to show objective facts which occurred in the jury room and could have improperly influenced the jury" (People v. Villagren (1980) 106 Cal.App.3d 720, 729, citing People v. Hutchinson (1969) 71 Cal.2d 342, 350-351), Juror No. 6's declaration did not refer to any misconduct on Juror No. 4's part. Second, with regard to defense counsel's declaration, "[h]earsay evidence offered in support of a new trial motion that is based on alleged jury misconduct ordinarily is insufficient to establish an abuse of discretion in either denying the motion or declining to conduct an evidentiary hearing." (People v. Manibusan (2013) 58 Cal.4th 40, 55; see People v. Hayes (1999) 21 Cal.4th 1211, 1256 ["Normally, hearsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct."]; People v. Spelio (1970) 6 Cal.App.3d 685, 690 ["[S]ection 1150 of the Evidence Code should not be expanded to require action on the basis of hearsay twice and thrice removed . . . ."].) While a "persuasive" reason may justify a deviation from this general rule (People v. Manibusan, supra, at p. 55; Dykes, supra, 46 Cal.4th at p. 811), defense counsel did not offer any: in the motion, he maintained he was "unable to complete declarations under penalty of perjury from any of the jurors," but soon after filed Juror No. 6's declaration; at the hearing, he stated he was "not able to get" a declaration or affidavit from Juror No. 5 "because [they] just couldn't connect."
We conclude the court had no obligation to conduct an evidentiary hearing to inquire into Juror No. 4's alleged misconduct.
III. Defense counsel's decision not to request an instruction on accomplice testimony corroboration did not constitute ineffective assistance of counsel.
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance." (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692 (Strickland).) "To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance ' " ' "fell below an objective standard of reasonableness . . . under prevailing professional norms." ' " ' [Citation.]" (People v. Mickel, supra, at p. 198.) "To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citations.]" (Ibid.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Ledesma (1987) 43 Cal.3d 171, 218, quoting Strickland, supra, at p. 694.)
Defendant contends his counsel rendered ineffective assistance because he did not request an instruction on accomplice testimony corroboration with respect to K.'s testimony. We disagree.
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant . . . ." (§ 1111.) " 'It has long been settled that where a penal statute expressly outlaws conduct against minors, a minor who is a victim of the proscribed conduct is not an accomplice and the jury need not be instructed that the minor's testimony requires corroboration.' [Citations.]" (People v. Tobias (2001) 25 Cal.4th 327, 334 (Tobias), italics omitted; see, e.g., People v. Stanley (1967) 67 Cal.2d 812, 820; People v. Yarber (1979) 90 Cal.App.3d 895, 908.) "The rationale underlying this rule is that prosecution of the minor for cooperating with the defendant would be inconsistent with the purpose of the law, which is to protect the minor. Because the minor, even if a willing participant in the defendant's conduct, is a victim and cannot be prosecuted as an accomplice, accomplice instructions are not appropriate." (Tobias, supra, at p. 334.)
In the instant case, there is no dispute that K. was 13 years old at the time of the sexual encounter with Miller. The penal statutes that defendant was found to have violated—i.e., sections 288a, subdivisions (c)(1) and (d)(2), and section 288, subdivision (a)—explicitly prohibit sexual conduct against persons under 14 years old. K. is the only victim listed in those counts. K. "was not an accomplice as a matter of law." (People v. Yarber, supra, 90 Cal.App.3d at p. 908.) Defense counsel's decision not to request an instruction on accomplice testimony corroboration did not demonstrate incompetency. Moreover, had such a request been made, the court likely would have denied it. (Cf. Tobias, supra, 25 Cal.4th at p. 331 [" '[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required . . . to instruct the jury on the principles governing the law of accomplices,' including the need for corroboration."].) Accordingly, we reject defendant's claim of ineffective assistance of counsel.
DISPOSITION
The judgment is reversed on count 2 and the matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
BLACK, PRO TEM J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------