Cabrera

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.

Defendant brought the matter of the retranslations to the trial court’s attention through a motion for new trial. The trial court was not asked to, and did not, conduct an evidentiary hearing into the alleged…