It's been a rough year for M. Marc Kelly, an Orange County Superior Court judge. Kelly, a conservative Republican, gave a 15-year sentencing break to a man who sodomized his three-year-old half sister. The controversial punishment created heavy media coverage, press conferences by outraged politicians and an ongoing petition drive to have him recalled from office. In late June, the California Court of Appeal in Santa Ana handed Kelly another slap in a different case.
California jury instructions specifically advise a jury that "a defendant has an absolute constitutional right not to testify" and warns during deliberations not to "consider, for any reason at all, the fact that the defendant did not testify." For anyone confused, the instruction also states, "Do not discuss that fact during your deliberations or let it influence your decision in any way."
After a 2013 conviction in People v. Ricky Venegas, a juror alerted officials that during deliberations some of his colleagues said they had to vote guilty because the defendant hadn't testified.
During a special hearing, Kelly asked the juror if Venegas' assertion of his right not to testify had been a "big factor" in the guilty vote and he answered affirmatively. The judge later interviewed other members of the panel, found that just two jurors admitted to the inappropriate remarks and, though concluding misconduct occurred, believed the defendant wasn't prejudiced enough to warrant a new trial.
"I just don't see the evidence supporting that this jury based their verdict on anything inappropriate concerning [the] issue whether or not [Venegas] did not testify," Kelly observed. "The evidence doesn't support it."
Kamala Harris' California Attorney General's office argued to uphold the case by labeling juror deliberation comments about the defendant's refusal to testify as merely "transitory comments of wonderment and curiosity" that didn't impact votes for guilt.
But appellate justices David Thompson, Raymond Ikola and Eileen Moore disagreed.
"The fact that in the jury room, during deliberations, at least two, probably three, and maybe more jurors discussed a defendant's failure to testify in more than a passing manner, leads us to independently conclude there is a substantial likelihood that it influenced their decision in a way which actually harmed the defendant," Thompson, a longtime Superior Court judge who handled felony trials, wrote for the majority.
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The panel ordered a new trial for 42-year-old Venegas, who has been living in a Calipatria State Prison cell while serving a 35 years to life punishment.
Court records show the case stemmed from what the defense labeled a he said/she said November 2010 sexual intercourse encounter at an Orange County motel.