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Name: People v. Bryant
Case #: B219277
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 01/24/2011

Affidavits submitted as evidence in a motion for new trial must meet the requirements of section 2015.5 of the Code of Civil Procedure (CCP) by being signed as true under penalty of perjury and reflecting the place of execution, or that it was made under the laws of California. Following his conviction for robbery with the use of a firearm, appellant filed a motion for a new trial, attaching a declaration from a juror stating that one of the other jurors had used his cell phone to look up the definition of reasonable doubt, and that penalty was considered and pressure exerted. In its rebuttal, the prosecution included twelve declarations. Neither the defense declaration nor the prosecution declarations were made under penalty of perjury. The parties agreed to waive this “procedural defect” and the trial court found that although misconduct occurred, it was not prejudicial, and denied the motion. Juror affidavits are admissible under Evidence Code section 1150 to establish jury misconduct. However, a jury verdict may not be impeached by hearsay affidavits and the prosecution cannot rely on an unsworn statement to refute affidavits properly submitted. CCP section 2015.5 holds that a declaration has the same force as an affidavit but it must be signed, dated, and certified as true under penalty of perjury, and specify that the place of execution is California or that it is made under the laws of California. Here, because neither side presented competent declarations, no evidence of jury misconduct was presented to the trial court. Although parties may, in general, waive evidentiary objections to documents, it is not permissible to treat unsworn statements of jurors as though they were made under penalty of perjury. The appellate court return the matter to the trial court for a full and complete hearing with competent evidence.