Hill

— A jury convicted defendant of conspiracy to commit first degree murder by explosive. (Pen. Code, §§ 182, 189; further statutory references to sections of an undesignated code are to the Penal Code.) On *22 appeal, defendant contends the trial court erred: (1) in failing adequately to deal with the jury’s request for further instruction, and (2) in denying his new trial motion which was based on jury misconduct in considering the issue of penalty during deliberations. We shall affirm, holding, inter alla, that Evidence Code section 1150, subdivision (a), which excludes evidence of the jurors’ subjective reasoning processes to impeach their verdict, has not been abrogated by the “Right to Truth in Evidence” provision of the California Constitution (art. I, § 28, subd. (d)).

In early 1987, defendant came to Chico to live near his estranged wife, Vicky Hill. Defendant wanted to reconcile with Vicky or failing that, to have her killed. On April 20, 1987, Vicky and defendant had a violent argument. Shortly thereafter, Dalton Moss sold defendant six or seven sticks of dynamite, several blasting caps and fuse cord. Defendant planned to dynamite Vicky’s truck or trailer home.…

Concurring and Dissenting. — I agree with the majority’s conclusion there was no error in the trial court’s response to the jury’s request for clarifying instructions. I also share the majority’s aversion to overturning verdicts for trifling misconduct. However, the unusual facts of this case raise serious questions about what occurred during jury deliberations.

In my view, several jurors discussed and considered potential penalty in violation of the trial court’s express instruction (CALJIC No. 17.42). 1 This constituted presumptively prejudicial misconduct which was not rebutted by the prosecution. Further, the prosecution failed to perfect its objection to the subjective statements contained in several jurors’ declarations and live testimony. This permitted the trial court to consider that evidence in its entirety. Consequently, it is unnecessary to consider defendant’s contention article I, section 28, subdivision (d), 2 added to the California Constitution by Proposition 8, abrogates Evidence Code section 1150. 3 Having concluded the trial court abused its discretion in denying defendant’s new trial motion, I would reverse.

Before explaining my reasons for these…

A jury convicted defendant of conspiracy to commit first degree murder by explosive. (Pen. Code, §§ 182, 189; further statutory references to sections of an undesignated code are to the Penal Code.) On appeal, defendant contends the trial court erred: (1) in failing adequately to deal with the jury's request for further instruction, and (2) in denying his new trial motion which was based on jury misconduct in considering the issue of penalty during deliberations. We shall affirm, holding, inter alia, that Evidence Code section 1150, subdivision (a), which excludes evidence of the jurors' subjective reasoning processes to impeach their verdict, has not been abrogated by the "Right to Truth in Evidence" provision of the California Constitution (art. I, § 28, subd. (d)).

In early 1987, defendant came to Chico to live near his estranged wife, Vicky Hill. Defendant wanted to reconcile with Vicky or failing that, to have her killed. On April 20, 1987, Vicky and defendant had a violent argument. Shortly thereafter, Dalton Moss sold defendant six or seven sticks of dynamite, several blasting caps and fuse cord. Defendant planned to dynamite Vicky's truck or trailer…