Nesler

I concur in the judgment.

Like the author of the lead opinion, I am of the view that Juror Katherine Elizabeth Boje committed prejudicial misconduct bearing on the question of sanity. My reasons are as follows.

In In re Carpenter (1995) 9 Cal.4th 634 [ 38 Cal.Rptr.2d 665 , 889 P.2d 985 ], the majority recognized, under In re Hitchings (1993) 6 Cal.4th 97 [ 24 Cal.Rptr.2d 74 , 860 P.2d 466 ] and People v. Holloway (1990) 50 Cal.3d 1098 [ 269 Cal.Rptr. 530 , 790 P.2d 1327 ], that it is misconduct “for a juror to receive information outside of court about the pending case . . . .” (In re Carpenter, supra, 9 Cal.4th at p. 647.)

The Carpenter majority also recognized, under decisions including Holloway and People v. Marshall (1990) 50 Cal.3d 907 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ], that juror misconduct “gives rise to a presumption of prejudice . . . .” (In re Carpenter, supra, 9 Cal.4th at p. 651; see id. at p. 650.) That means, of course, that “unless the prosecution rebuts that presumption . . ., the defendant is entitled to a new trial.” (People v. Pierce (1979) 24 Cal.3d 199, 207 [ 155 Cal.Rptr. 657 , 595 P.2d 91 ]; accord, e.g., People v. Marshall, supra, 50 Cal.3d at p. 949;…

In a Tuolumne County courtroom, during a break in Daniel Driver’s preliminary hearing on charges of sodomizing her seven-year-old son, defendant Ellena Starr Nesler shot and killed Driver. A jury found defendant guilty of voluntary manslaughter with the use of a firearm, thereafter deciding that she was sane at the time of the commission of the offense. The Court of Appeal affirmed defendant’s conviction. We granted review to determine whether defendant was prejudiced by juror misconduct that occurred during the sanity phase of the trial. Because we determine that the presumption of prejudice arising from the misconduct was not rebutted, we conclude that the judgment of the Court of Appeal with respect to the sanity phase must be reversed.

I

In order to place defendant’s claim of juror misconduct in context, we summarize the evidence leading to her conviction, with particular emphasis upon issues related to the alleged misconduct. Because the misconduct occurred during the sanity phase of the trial, pertinent portions of the expert testimony concerning her mental state are set forth in some detail. Finally, we describe the evidence that the trial court received from the…

I respectfully dissent. In 1988 or 1989, defendant’s young son told her the victim, Daniel Driver, had molested him. Driver remained at large until 1993, while defendant’s son developed serious psychological problems as a result of the sexual assault. Defendant’s long-smoldering anger was rekindled when Driver, finally arriving in court to face molestation charges, smirked at defendant and her son. She lunged at Driver, but her sister held her back. Later, during a break in the court hearing, defendant exacted her final revenge. Using a pistol she had taken from her sister’s purse, she fired five shots into the back of Driver’s head at point-blank range and in full public view.

In an emotional but lucid statement to the police, defendant expressed moral ambivalence about her act. She said Driver was “sick” and deserved to die for the pain he had caused, but she also declared she had not planned to kill, wondered aloud if her act meant she herself was “sick," and claimed she had told her son she belonged in jail because what she had done was wrong. Defendant also admitted using “crank” (i.e., methamphetamine) on the morning of the homicide, but she said she did not use it all the…