# People v. Danks

> California Supreme Court · April 14, 2004 · 8 Cal. Rptr. 3d 767

URL: https://www.frixlaw.com/law-library/cases/9782312

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JOSEPH MARTIN DANKS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** April 14, 2004
- **Citations:** 8 Cal. Rptr. 3d 767; 32 Cal. 4th 269; 82 P.3d 1249
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** Brown, Kennard, Moreno
- **Cited by:** 133 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782312

## How later opinions describe it (automated extraction)

- finding no procedural unconscionability when the failure to attach 9 arbitration rules would not result in surprise for the professional security analyst employee
- holding a juror engaged in misconduct by "bringing a copy of the [Biblical] passage into the jury room, and passing it around to the other jurors"

## Opinion text

KENNARD, J., Concurring and dissenting.
I join the majority in upholding defendant’s convictions for murder (Pen. Code, § 187) 1 and for assault by a prisoner serving a life sentence, resulting in great bodily injury or death (§ 4500), as well as the prior-murder special-circumstance allegations (§ 190.2, subd. (a)(2)). Unlike the majority, however, I would reverse the judgment of death because of jury misconduct during the penalty phase deliberations.
*317 I
After the jury’s verdict of a death sentence, defendant moved for a new trial, alleging that two jurors, B.P. and K.A., had engaged in misconduct during the penalty phase deliberations. Because neither party had asked for an evidentiary hearing, the trial court based its ruling entirely on declarations submitted by the parties, most important of which were declarations from B.P. and K.A.
Juror B.P. mentioned that she had voted for death in three straw votes on the first day of deliberations (a Friday). She then described a conversation with her pastor that weekend: “I spoke with my pastor about the difficulty of making the decision. I told him, ‘Pastor, I’m doing jury duty on a murder case. Is there anything in the Bible which speaks against the death penalty?’ I also told him that I had made up my mind about the verdict. [][] In response, my pastor told me, ‘[B.], I think I know what case you are on. There is no place in the Bible that takes the law out of the Bible. If you are sitting on the case I’m thinking you are sitting on, if I was in your shoes, I would not hesitate to give him the death penalty.’ ” (Italics added.)
With respect to Juror K.A., she said that after the first day of deliberations she told her husband of “the stress [she] felt in making the decision.” He urged her to discuss the matter with her pastor and showed her this passage from the Bible: “If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death. Or if anyone has a wooden object in his hand that could kill, and he hits someone so that he dies, he is a murderer; the murderer shall be put to death. If anyone with malice aforethought shoves another or throws something at him intentionally so that he dies or if in hostility he hits him with his fist so that he dies, that person shall be put to death; he is a murderer. The avenger of blood shall put the murderer to death ....[!] But if without hostility someone suddenly shoves another or throws something at him unintentionally or, without seeing him, drops a stone on him . . . and he dies, then since ... he did not intend to harm him, the assembly must. . . protect the one accused of murder from the avenger of blood .... Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness. Do not accept a ransom for the life of a murderer, who deserves to die. He must surely be put to death.” (Numbers 35:16-35:25, 35:30-35:31.)
On Sunday, Juror K.A. and her husband attended Bible study at their church. There her husband made copies of the Bible verses quoted above. The pastor, who knew K.A. was a juror in defendant’s capital murder case, told K.A. he understood (apparently from talking to K.A.’s husband) that *318 K.A. had read several Bible verses. K.A. replied that the verses had given her comfort. The pastor described the verses as “good scriptures” and said “in a joking manner that if he were a juror he would impose the death penalty . . . . ” (Italics added.)
The next Monday, Juror K.A. highlighted certain passages on the copies of the Bible verses and brought them to court. When, during deliberations, some jurors mentioned the difficulty in “making a life and death decision,” K.A. showed them the highlighted Bible passages. Juror B.P. told K.A. that she too had spoken to her pastor, who had given her the same Bible verses that K.A. had brought to court. 2
The trial court denied defendant’s motion for new trial.
II
No matter how inadvertent, a juror’s receipt of information not presented in court is juror misconduct. “Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term ‘misconduct,’ it nevertheless gives rise to a presumption of prejudice . . . .” (People v. Nesler (1997) 16 Cal.4th 561, 579 [ 66 Cal.Rptr.2d 454 , 941 P.2d 87 ] (lead opn. of George, C. J.) (Nesler).) In the words of the United States Supreme Court: “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial .... The presumption is not conclusive, but the burden rests heavily upon the Government to establish . . . that such contact with the juror was harmless to the defendant.” (Remmer v. United States (1954) 347 U.S. 227, 229 [ 98 L.Ed. 654 , 74 S.Ct. 450 ],) 3
*319 Here, the pastors of Jurors B.P. and K.A. told them that they (the pastors) would have no problem voting for the death penalty in defendant’s case. K.A.’s husband implied a similar view when, before K.A.’s talk with her pastor, he showed her Bible verses expressing the view that all intentional killers should be put to death. The two jurors’ receipt of those communications amounted to jury misconduct. (Nesler, supra, 16 Cal.4th at p. 579 ; see also Stockton v. Com. of Va., supra, 852 F.2d 740 [jury bias occurred when, at a meal during penalty deliberations, restaurant owner told jurors they should impose the death sentence].)
Was the misconduct prejudicial to defendant? “When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not ‘inherently’ prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was ‘actually biased’ against the defendant.” ( Nesler, supra, 16 Cal.4th at pp. 578-579, italics added.) 4
Here, the material Juror K.A. received from sources outside of the court— the views of her husband and her pastor on the propriety of a death sentence in defendant’s case—was “inherently and substantially likely” to have influenced her vote. Normally a spouse and a spiritual advisor would have a great influence on a juror having to decide a matter of life and death. Here, not just one, but both of these highly influential people in essence told K.A. they thought defendant should be sentenced to death. These views were reinforced when Juror B.P. later told K.A. that B.P.’s pastor too had given her the same Bible verses K.A. had shared with the jurors.
Even if the receipt of this outside information was not “inherently and substantially likely” (Nesler, supra, 16 Cal.4th at p. 579 ) to have influenced *320 Juror K.A., it is “substantially likely” that she “was ‘actually biased’ ” (ibid.) against defendant. Her bias is demonstrated by her decision to show the other jurors her highlighted passages from the Bible verses on the appropriateness of killing a killer. As this court has recognized, “[a] juror’s disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias” (Nesler, supra, 16 Cal.4th at p. 587 ), whereas an unbiased juror will realize that the jury may not consider the information and therefore is unlikely to mention it (In re Carpenter (1995) 9 Cal.4th 634, 657 [ 38 Cal.Rptr.2d 665 , 889 P.2d 985 ]): In handing out to the other jurors the Bible verses that her husband had showed her and her pastor had commended as “good scriptures,” Juror K.A. demonstrated that she had been affected by their comments and therefore that she was biased.
With regard to Juror B.P., the question of prejudice is closer, for she had talked only to her pastor, whereas Juror K.A. had talked to both her spiritual advisor and her husband, both of whom indicated their approval of executing defendant. Nevertheless, in my view B.P. was substantially likely to harbor a bias against defendant. As in this case, Stockton v. Com. of Va., supra, 852 F.2d 740 , involved an unsolicited communication to jurors. There, a restaurant owner approached a group of four jurors while they were taking a lunch break in the middle of their deliberations in a capital case. He spoke to them for about five minutes, asking whether they had reached a verdict yet and telling them “ ‘they ought to fry the son of a bitch.’ ” (Id. at p. 742.) After lunch the jury returned a verdict of death. The federal circuit court reversed, explaining that the comment, which came in the middle of deliberations, “posed a potential for prejudice that was too serious to ignore.” (Id. at p. 745.) Here, the likelihood of prejudice was far greater than in Stockton , because B.P. conversed not with a restaurateur but with her pastor. For advice and comfort in difficult matters of life and death, many people turn to their pastor, whose views are likely to carry far more weight than those of a stranger encountered in a restaurant.
Ill
The majority acknowledges there was misconduct by Jurors K.A. and B.P. but concludes it was harmless. As I shall explain, the majority’s reasons are not persuasive.
Juror K.A. was exposed to three separate acts of misconduct; (1) receiving from her husband Bible verses approving of putting to death anyone who had intentionally killed; (2) hearing her pastor’s approval of the Bible verses, which he described as “good scripture,” accompanied by his comment that he would vote to execute defendant; and (3) learning from Juror B.P. that her *321 own pastor had referred her to the very same Bible verses. Reversal is required if there is a “substantial likelihood” that K.A. was influenced by the combined effect of these three acts. Instead, the majority looks at the acts separate from each other. After stating that K.A. was not affected by her husband’s conduct (maj. opn., ante, at p. 304), it likewise concludes that she was not influenced by her pastor’s conduct (id. at p. 307). Only in a footnote does it mention B.P.’s comment that her pastor had expressed views similar to those of K.A.’s husband and pastor (id. at p. 309, fn. 13), and it dismisses the possibility that these three acts were collectively prejudicial in a sentence, without analysis (id. at p. 310). But the views of these three persons reinforced each other, with a combined effect that was likely to be far greater than the impact that any one of them would have had in isolation.
In finding the misconduct of Juror B.P. harmless, the majority stresses that before consulting her pastor she had voted for the death penalty on three ballots taken by the jurors during their deliberations. But jurors frequently change their minds during deliberations; indeed, that is the whole point of deliberating. Moreover, B.P.’s decision to bring up the matter with her pastor after those votes suggests that she remained uncertain. B.P.’s conversation with her pastor may well have strengthened her resolve to vote in favor of the death penalty, leaving her far less susceptible to the arguments of those jurors who were urging a sentence of life without possibility of parole.
The majority also relies on the strength of the aggravating evidence at the penalty phase: defendant’s six prior convictions for murdering homeless men, his own testimony that “I would not change a thing I did in my life,” and the concession by psychiatrists who testified for the defense that defendant was an “extremely dangerous” sadist who derived sexual excitement from killing. Given this evidence, the majority concludes, the extrajudicial communications of Jurors K.A. and B.P. were unlikely to have affected their votes to sentence defendant to death. (Maj. opn., ante, at pp. 305, 309.)
Granted, the aggravating evidence was strong. But the majority ignores the strong mitigating evidence presented to the jury. Five defense experts (three psychiatrists and two psychologists) described defendant, who was 30 years old at the time of trial, as severely ill mentally, suffering from paranoid schizophrenia. He complained that certain well-known entertainers were “in the kitchen excreting in his food.” He was convinced that the Mayor of Los Angeles, the Governor of California, and the President of the United States all conspired against him. He thought people watched him through the television set. He talked of conversations with his dead grandparents, and said his mother printed counterfeit money in her basement. He insisted that the homeless men he had killed were not really dead, and he felt compelled to clean his jail cell with a toothbrush six to 10 times a day. In short, the defense *322 presented compelling evidence that defendant, although not legally insane at the time of the offenses (see § 25, subd. (b) [a defendant is insane only if “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense”]), suffered from a mental illness that destroyed his capacity for rational thought.
If defendant’s doctors are right, defendant’s mental deficiencies are comparable in severity to mental retardation. In Atkins v. Virginia (2002) 536 U.S. 304 [ 153 L.Ed.2d 335 , 122 S.Ct. 2242 ], the United States Supreme Court held that to execute the mentally retarded is cruel and unusual punishment, reasoning that retarded persons “have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” (Id. at p. 318.) The same mental capacities are impaired in a person suffering from paranoid schizophrenia, and the impairment may be equally grave. Although mental illness does “not warrant an exemption from criminal sanctions” (ibid.), California law recognizes it as a mitigating factor that weighs against capital punishment. (§ 190.3, factor (d).) Surely a reasonable juror could have concluded that defendant’s mental illness diminished his personal culpability to such an extent as to render death an inappropriate penalty.
For the reasons given above, I would affirm defendant’s convictions for murder and for assault by a prisoner serving a life sentence resulting in great bodily injury or death, as well as the special circumstance findings, but I would reverse the judgment of death.
George, C. J., concurred.
MORENO, J., Concurring and dissenting.
The majority is correct that the crimes committed by defendant Joseph Martin Danks were horrific and his lack of remorse shocking. Already serving a term of 156 years to life for the murders of six transients in Los Angeles County, defendant choked his 67-year-old cellmate to death because he believed that killing old people was “the Lord’s work.” He choked and stabbed another inmate in 1989, and stabbed his lawyer in the face during the penalty phase of this trial. He stated to law enforcement officers, after his latest murder, that he wanted the death penalty. He told jurors during his penalty phase testimony that he stabbed the transients while they slept and, directly addressing the jurors, stated, “I would do it to you too.”
But the jury also heard that defendant was paranoid, delusional, and mentally ill. Doctors confirmed this diagnosis. Defendant believed that *323 entertainers Burt Reynolds and Johnny Carson excreted into his food. He cleaned his cell with a toothbrush six to 10 times a day. He thought people watched him through the television. He thought he was being brainwashed by music piped into his jail cell. Witnesses recounted incident after incident, dating back to his teen years, of defendant’s bizarre and disturbed behavior.
Against this backdrop, and in direct violation of the court’s order not to discuss trial matters with nonjurors, two jurors took the extraordinary step of discussing their possible death verdict with their pastors. Astoundingly, in separate incidents, both pastors assured the two jurors that the death penalty was the appropriate punishment for defendant. Yet the majority finds this egregious juror misconduct nonprejudicial. While I concur in the majority’s affirmance of defendant’s murder conviction and the special circumstance findings, I dissent from the affirmance of the death judgment.
Penalty phase deliberations began Friday afternoon, February 5, 1993. Juror K.A. stated in her declaration that the judge “had told us we could not speak with persons about the case. But because of the feelings I had, I felt the necessity of talking to my husband.” K.A.’s husband noticed she was “on edge” and advised her that reading scripture from the Bible might be of benefit. He showed her verses from the Book of Numbers that stated, in no uncertain terms, that murderers shall be put to death, 1 and told her that it was permissible to discuss the case with their pastor “because a pastor is of a higher authority.” Sunday evening, February 7, 1993, during Bible study at their church facility, K.A. and her husband met with their pastor. K.A. stated, “[tjhat is where my husband made a copy . . . from our Bible containing the Book of Numbers verses,” which was shown to the pastor. The pastor, knowing K.A. to be a juror on defendant’s case, said “those were good scriptures,” and then “jokingly” said that he “would impose the death penalty on Mr. Danks.” 2 K.A. returned to court for deliberations the following day. She stated, “I took the copy of the pages from the Book of Numbers with me. I had highlighted certain portions of that.” (Italics added.) She added, “During deliberations, other jurors expressed feelings about the difficulty and responsibility of making a life or death decision. I told the other jurors about my copy of the pages from the Book of Numbers. I then shared [my *324 highlighted copy] with the other jurors by passing it around to the other jurors.” K.A. admitted that “our Christian beliefs [were] being discussed during deliberations,” causing one juror to take offense “later in the day” and stating words to the effect that “God does not play a part in this decision.” The jury returned a death verdict the following day.
A second juror, B.P., also sought guidance from her pastor during the penalty phase deliberations. A third juror, E.M., declared that “During the penalty phase deliberations in the [Danks] case, [B.P.] told me that she had talked to her pastor for guidance on the case.” B.P. acknowledged in her declaration that “During the penalty phase deliberations I spoke to my pastor.” She stated, “After the first day of deliberations, I spoke with my pastor about the difficulty of making the decision.” B.P. added, “I wanted to know what the Bible said about the death penalty.” Her pastor told her, “[B.], I think I know what case you are on,” and stated, “if I was in your shoes, I would not hesitate to give him the death penalty.” K.A. added that “B.P. told me that she had talked to her pastor and he had referred her to the same chapter and verses in the Book of Numbers.”
Based on these declarations, the majority remarkably finds no prejudicial juror misconduct. It reaches this erroneous conclusion by misapplying the test for determining prejudicial juror misconduct based on the receipt of extraneous information, set forth in a trilogy of cases—People v. Nesler (1997) 16 Cal.4th 561, 580 [ 66 Cal.Rptr.2d 454 , 941 P.2d 87 ] (lead opn. of George, C. J.) (Nesler), In re Carpenter (1995) 9 Cal.4th 634 [ 38 Cal.Rptr.2d 665 , 889 P.2d 985 ] (Carpenter), and People v. Marshall (1990) 50 Cal.3d 907 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ] (Marshall).
Specifically, in its examination of “actual bias,” the majority fails to acknowledge that, in juror misconduct cases based on the receipt of extraneous information, there arises a presumption of prejudice that must be rebutted by the prosecution (Marshall, supra, 50 Cal.3d at p. 949 ), and that determining “[w]hat constitutes ‘actual bias’ of a juror varies according to the circumstances of the case” and involves an inquiry into whether a juror was “actually being influenced by extraneous information about a party.” ( Nesler, supra, 16 Cal.4th at pp. 580, 581; and see Marshall, supra, 50 Cal.3d at pp. 950-951.)
Equally troubling is the fact that the majority analyzes the multiple incidents of juror misconduct here in piecemeal fashion, thereby sidestepping the requirement set forth in Carpenter that juror misconduct based on the receipt of extraneous information be analyzed in toto. As we stated in Carpenter, “the totality of circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.” (Carpenter, supra, 9 Cal.4th at p. 654.)
*325 In addition, the majority ignores the line of cases that have found prejudicial misconduct where a jury receives information that diminishes its sense of responsibility for its verdict (e.g., Caldwell v. Mississippi (1985) 472 U.S. 320 [ 86 L.Ed.2d 231 , 105 S.Ct. 2633 ] (Caldwell)), and makes short shrift of those cases that have found misconduct where the Bible is interjected into the proceedings. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ] (Hughes) and People v. Mincey (1992) 2 Cal.4th 408 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ] (Mincey).) Finally, the majority fails to appreciate that this deplorable juror misconduct undermines the integrity of California’s death penalty process.
I.
In Nesler, supra, 16 Cal.4th 561 , we reversed a jury verdict because a juror received extraneous information about the defendant and shared it with other jurors. The lead opinion, which was written by Chief Justice George and joined by Justices Kennard and Werdegar, summarized the law in this area as follows: “A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. [Citations.] A defendant ‘is entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has a right to a unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.] [f] Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] ‘The requirement that a jury’s verdict “must be based upon the evidence developed at the trial” goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. ... [1] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’ s right of confrontation, of cross-examination, and of counsel.’ [Citation.] As the United States Supreme Court has explained: ‘Due process means a jury capable and willing to decide the case solely on the evidence before it... I [Citations.]” (Id. at p. 578.)
As such, “A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever ... the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ [Citations.] This rule ‘has significant support in the case law’ [citation], both within California [citation] and without [citation], [Citations.] [][] ‘The ultimate issue of *326 influence on the juror is resolved by reference to the substantial likelihood test, an objective standard.’ . . . [][] Such ‘prejudice analysis’ is different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at trial. The reason is as follows. Any deficiency that undermines the integrity of a trial—which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury—introduces the taint of fundamental' unfairness and calls for reversal without consideration of actual prejudice. [Citation.] Such a deficiency is threatened by jury misconduct. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial. By contrast, when the misconduct does not support such a finding, we must hold it nonprejudicial.” ( Marshall, supra, 50 Cal.3d at pp. 950-951.)
In Nesler , a juror received unflattering information about the defendant from a woman in a bar during the sanity phase of the defendant’s manslaughter trial. The woman claimed she had been a babysitter for the defendant. During deliberations, however, the juror stated she “knew” the defendant’s babysitter, and remarked that the defendant would leave her children for long periods of time, was not a good mother, and used illicit drugs. (Nesler, supra, 16 Cal.4th at p. 574 .) She argued to jurors that “if [they] knew what she knew” they would find the defendant sane. (Id. at p. 571.) The jury ultimately found that the defendant was sane.
The lead opinion in Nesler found that the People had not rebutted the presumption of prejudice arising from this juror’s misconduct because there was a substantial likelihood that the extraneous information impermissibly influenced her decision: “Although [the juror] knew she should not discuss matters that were not part of the evidence presented at trial, she intentionally interjected this outside information into the deliberations .... In our view, [the juror’s] repeated references to and use of the outside information during deliberations establish a substantial likelihood that her extraneous knowledge concerning defendant caused her to prejudge issues that arose during deliberations and to render a verdict that was not based solely upon the evidence presented in court. As defendant points out, if [the juror] had not been influenced by what she had learned, she would not have used the information to attempt to convince other jurors that defendant truly was a bad mother-and more involved with drugs than the evidence showed.” (Nesler, supra, 16 Cal.4th at p. 583 .)
Justice Mosk, who concurred in the judgment in Nesler , agreed that the “facts compelled]” the conclusion that the juror committed misconduct, and *327 the “law compel[led]” the conclusion that these facts gave rise to a presumption of prejudice. (Nesler, supra, 16 Cal.4th at p. 592 (cone. opn. of Mosk, J.).) Unlike the lead opinion, however, Justice Mosk stated he could not determine whether there was, in fact, a substantial likelihood of the juror’s actual bias: “One can reasonably conclude either that [the juror] was ‘actually’ biased by what she heard or that she was not, depending on whether one infers either that she was herself influenced or that she was simply attempting to influence others. With matters thus in equipoise, the presumption of prejudice stands unrebutted.” (Id. at pp. 592-593.)
A majority of the court in Nesler thus concluded that the presumption of prejudice that arises in juror misconduct cases involving the receipt of extraneous information had not been rebutted. Fairly read, the lead opinion concluded that the presumption of prejudice is not rebutted where there is a substantial likelihood that the juror herself was improperly influenced by the extraneous material. Justice Mosk concluded that the presumption of prejudice is not rebutted where there is proof either that the juror herself was improperly influenced or that she was simply attempting to improperly influence others. As such, a majority of this court has held that the presumption of prejudice arising in juror misconduct cases involving the receipt of extraneous information is not rebutted where the juror herself was improperly influenced.
The majority here acknowledges that K.A. and B.P. committed juror misconduct in this case by speaking to their pastors (maj. opn., ante, at pp. 307, 309), and finds it “troubling that during deliberations not one but two jurors had conversations with their pastors that ultimately addressed the issue being resolved at the penalty phase in this case.” (Maj. opn., ante, at p. 306, fit. 11.) More troubling is the fact that the majority finds K.A.’s and B.P.’s juror misconduct nonprejudicial.
Based on K.A.’s juror declaration, there is, at a minimum, a substantial likelihood that K.A. was improperly influenced by her pastor’s assurance that the death penalty was the appropriate punishment for defendant. K.A.’s declaration contains the following information, which Carpenter teaches we must view in its totality: (1) K.A. knew she could not speak to nonjurors about the case; (2) nonetheless, because of her uncertainty in imposing a death verdict, she discussed the case first with her husband; 3 (3) then, on *328 Sunday night, while at their church facility, and hours before deliberations were to be resumed the following morning, she and her husband met with their pastor, who knew she was a juror on defendant’s case; (4) at this time, K.A.’s husband made a copy of the Book of Numbers verses to show to the pastor; (5) the pastor, a person assertedly “of a higher authority,” said those were “good scriptures,” and (6) added that he would impose the death penalty on defendant; (7) thereafter, K.A. herself, not her husband, highlighted certain portions of the “good scriptures” supporting the death penalty, and (8) took them to court the following morning; (9) during deliberations, she told the other jurors about her highlighted copy of Book of Numbers verses; (10) shared this highlighted copy with the other jurors who had expressed feelings about the difficulty and responsibility of imposing a death verdict; and (11) she admitted that the jury discussed their “Christian beliefs” during deliberations to the extent that, later in the day, a juror became offended because “God does not play a part in this decision.”
Based on the above facts, it is clear that K.A. had not yet made her death penalty decision after deliberations had concluded on Friday. This is evident from the facts that she was “on edge,” “felt the necessity” of talking to her husband about the case, and met with her pastor to talk about the case. 4 But after receiving her pastor’s assurance that the Book of Numbers verses were “good scriptures” and that he would impose the death penalty on defendant— extraneous information outside the deliberative process that the majority concedes was improperly received—K.A. arrived at her decision to impose the death penalty on defendant. That this information was critical to her decision is evident from the facts that she highlighted her copy of the Book of Numbers scripture after the meeting and brought it to deliberations the following morning, that she told other jurors about these particular Bible verses, and that she shared this scripture with undecided jurors.
The language in Nesler applies with particular force here: “Although [K.A.] knew she should not discuss matters that were not part of the evidence presented at trial, she intentionally interjected this outside information into the deliberations .... In our view, [K.A.’s] repeated references to and use of the outside information during deliberations establish a substantial likelihood *329 that her extraneous knowledge concerning defendant caused her to prejudge issues that arose during deliberations and to render a verdict that was not based solely upon the evidence presented in court. As defendant points out, if [K.A.] had not been influenced by what she had learned, she would not have used the information to attempt to convince other jurors” struggling with their death penalty verdict. ( Nesler, supra, 16 Cal.4th at p. 583 .)
There is also a substantial likelihood that B.P. was impermissibly influenced by her own misconduct. Despite her claim that she voted the “same way” before and after talking to her pastor during deliberations, an objective view of the evidence suggests that her earlier votes were tentative. B.P. candidly acknowledged that she spoke with her pastor about “the difficulty of making the decision.” Her pastor then told her that he “would not hesitate” to give defendant the death penalty. The damage was done. Juror E.M. stated that, after this meeting, and “[d]uring the penalty phase deliberations in the [Danks] case, [B.P.] told me that she had talked to her pastor for guidance on the case.” Simply stated, if B.P. had been certain of her verdict, she would not have asked her pastor for guidance in making this difficult decision.
In addition, K.A. added that “B.P. told me that she had talked to her pastor and he had referred her to the same chapter and verses in the Book of Numbers.” Thus, during the deliberation period, K.A. and B.P. each received confirmation that the other’s pastor approved imposing the death penalty. 5 Given the high regard the two jurors had for their pastors, this mutual reinforcement of a reliance on biblical and pastoral authority further heightened the resulting prejudice.
In light of the majority’s emphasis on the “strength” of the evidence against defendant in finding these multiple acts of juror misconduct nonprejudicial (maj. opn., ante, at pp. 305-306), the test articulated in Marshall bears repeating: “ ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. . . .’ *330 [Citation.] [f] Such ‘prejudice analysis’ is different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at trial. The reason is as follows. Any deficiency that undermines the integrity of a trial . . . introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice.” (.Marshall, supra, 50 Cal.3d at p. 951 .)
An examination of K.A.’s behavior before and after the Sunday night meeting with her pastor leads to the inescapable conclusion that she was actually and improperly influenced by her pastor’s assurance that the death penalty was the proper punishment for defendant (see Nesler, supra, 16 Cal.4th at p. 583 ), and it is substantially likely that B.P., despite her remarks to the contrary, was also improperly influenced by her pastor’s assurance on this very topic. “When the [juror] misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial.” (Marshall, supra, 50 Cal.3d at p. 951 , italics added.) Moreover, “under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ [Citation.]” (Caldwell, supra, 472 U.S. at p. 329.)
Reversal under these facts is mandated. The flagrant juror misconduct here violates the test set we forth in both Marshall and Nesler . Not one, but two jurors were impermissibly influenced by extraneous information they solicited outside the deliberative process. The integrity of this trial was undermined, these two jurors were not impartial, and this verdict should not stand.
II.
Grounds for reversal similarly exist when a juror receives information that improperly influences her verdict in the sense that it diminishes her sense of responsibility for her verdict. ( Caldwell, supra, All U.S. 320.) In Caldwell , the high court set aside a judgment of death because the prosecutor told the jurors in closing argument that the state supreme court would automatically review their decision that death was the appropriate penalty. The high court stated; “[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere. This Court has repeatedly said that under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ [Citation.]” (Id. at pp. 328-329.) The high court therefore reasoned that such information “presents an intolerable danger that the jury will in fact *331 choose to minimize the importance of its role.” (Id. at p. 333.) It concluded, “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated.” (Id. at p. 341.)
We applied the Caldwell rule in People v. Farmer (1989) 47 Cal.3d 888 [ 254 Cal.Rptr. 508 , 765 P.2d 940 ], a case in which the prosecutor told the jury: “Whether or not [the defendant] should live or die was decided by the voters of this state when they passed [the death penalty law], when they set the criteria. They decided who lives and who dies. You decide, does aggravating outweigh mitigating. That is your job. That is all you decide. The law does the rest. It is not you.” (Id. at p. 929, italics omitted.) In essence, “the prosecutor informed the jury that ‘the law’ decided whether this defendant would live or die, and that it was not the jury’s responsibility and obligation to decide the propriety of death as a penalty in this case.” (Id. at p. 930.) As such, “the jury was misled as to its discretion and responsibility in fixing the appropriate penalty, and hence ... the judgment of death must be set aside under Caldwell. . . .” (Id. at p. 931.)
Despite the fact that the misconduct in Caldwell was perpetrated by a state actor, the general reasoning of Caldwell is instructive here. As stated by the high court, “the uncorrected suggestion that the responsibility for any ultimate decision of death will rest with others presents an intolerable danger that the jury will, in fact, minimize the importance of its role.” (Caldwell, supra, 472 U.S. at p. 333 .)
Here, after seeking guidance in violation of a court order not to discuss the case with nonjurors, two jurors were told by their personal spiritual leaders that death was the appropriate penalty for this defendant. Such advice would likely have a greater impact upon a juror than receiving similar unsolicited information from the prosecutor, and the fact that this advice was received out of court gave defendant no opportunity to object or to rebut the evidence.
As we said in Hughes, supra, 27 Cal.4th at page 389 , in reference to a claim of prosecutorial misconduct in invoking the Bible: “ ‘[T]he primary vice in referring to the Bible and other religious authority is that such argument may “diminish the jury’s sense of responsibility for its verdict and . . . imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.” ’ [Citation.]” But the misconduct here is far more egregious than the misconduct that occurs when the *332 prosecutor exhorts the jury to impose the death penalty by referencing the Bible. When the prosecutor invokes the Bible, the effect on the jury is speculative, and we have found such misconduct harmless by pointing to the prosecutor’s legitimate reasons in support of a death penalty verdict. (See, e.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1208-1209 [ 120 Cal.Rptr.2d 477 , 47 P.3d 262 ]; People v. Welch (1999) 20 Cal.4th 701, 761-762 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ]; People v. Roybal (1998) 19 Cal.4th 481, 519-521 [ 79 Cal.Rptr.2d 487 , 966 P.2d 521 ].)
Here, however, not one, but two jurors sought guidance from their personal spiritual leaders. Not only were they referred to verses in the Bible that supported the death penalty, they were assured that it was proper to impose the death penalty on defendant. The effect of the pastors’ assurances was palpable. K.A. highlighted a copy of the Bible verses in support of the death penalty and shared that copy with undecided jurors. B.P. also informed other jurors during deliberations that her pastor offered her guidance on this difficult decision, and had referred her to the same biblical passages.
K.A.’s and B.P.’s misconduct is prejudicial because it not only diminished their personal responsibility in imposing a death verdict, but the jury’s sense of responsibility as a whole. Given that the “ ‘qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination’ ” (Caldwell, supra, 472 U.S. at p. 329 ), and given the “intolerable danger” that this jury chose to minimize the importance of its role (id. at p. 333), defendant’s death sentence should be reversed.
III.
The juror misconduct here is far more prejudicial than the juror misconduct that occurred in Mincey, supra, 2 Cal.4th at pages 465-466, a case in which a juror brought the Bible into deliberations and several jurors read the same passages at issue here. We stated the test for juror misconduct in this situation as follows: “It is misconduct for a juror to consider material [citation] extraneous to the record. [Citations.] Such conduct creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred. [Citation.] In criminal cases, the presumption of prejudice is rebutted when there is no substantial likelihood that the vote of one or more of the jurors was influenced by exposure to the improper material.” (Mincey, supra, 2 Cal.4th at p. 467 .) We held the juror misconduct in Mincey was nonprejudicial because (1) the Bible verses were read after deliberations concluded for the day, (2) the jurors did not discuss the verses, (3) the jurors were questioned by the trial court the very next day and stated that reading the Bible verses had not influenced their deliberations, and (4) the trial court admonished the jurors to decide the case solely on the evidence. (Ibid.)
*333 But none of the above factors, which militate against a finding of prejudice, are present here. K.A.’s and B.P.’s juror misconduct was discovered after trial, so the trial court had no opportunity to undo the harm. Moreover, not only were the Bible verses read during deliberations, K.A. stated in her declaration they were read to jurors who had “expressed feelings about the difficulty and responsibility of making a life or death decision.” In addition, unlike in Mincey , where the Bible verses were not discussed during deliberations, K.A. admitted not only that she told the other jurors about the scripture, but that the jurors’ “Christian beliefs” were discussed during that Monday’s deliberations, 6 prompting another juror to take offense later in the day. Juror E.M. corroborated the fact that such misconduct took place because she stated that during deliberations B.P. admitted that she sought her pastor’s guidance. This was “egregious misconduct” because the pastors’ assurances, K.A.’s and B.P.’s knowledge of the same, and the jury’s improper discussion of biblical passages during deliberations “suggested that under divine law the proper penalty for defendant’s crimes is death, always and automatically, regardless of the balance of aggravating and mitigating circumstances.” (People v. Slaughter, supra, 27 Cal.4th at p. 1226 (cone. & dis. opn. of Kennard, J.); see also Jones v. Kemp (N.D.Ga. 1989) 706 F.Supp. 1534, 1558-1560 [constitutional error for trial court to grant jurors’ request in death penalty case to bring Bible into deliberation room as “the confidence in the reliability of the jury’s decision . . . may be undermined”].) The fact that the jury returned a verdict the following day is further evidence of the impact of the jurors’ misconduct. The presumption of prejudice recognized in juror misconduct cases has not been rebutted here.
IV.
Finally, the juror misconduct here undermines the integrity of the death penalty process. In NeCamp v. Commonwealth (1949) 311 Ky. 676 [ 225 S.W.2d 109 ], a case directly on point, the jury returned a death verdict. In the defendant’s motion for a new trial, an affidavit was introduced by the Commonwealth of Kentucky in support of the verdict that provided that, during the course of deliberations, a juror told other jurors that “she had confided in her priest and he had advised her it was all right” to impose the death penalty because “it would not be any sin.” (NeCamp, supra, 225 *334 S.W.2d at p. 111 .) In reversing the death judgment, the court stated: “In the present case, ... we have an affidavit filed by the Commonwealth [that] . . . does in fact reveal misconduct as measured by the law. It is a disclosure made by the Commonwealth itself that the juror during the trial had conferred with another and carried the advice into the jury room. Perhaps this interpretation of the affidavit as being in support of and not to impeach the verdict is not the perfection of logic. But with the life of a man at stake, and that fife to be taken by processes of the law, the reality and the actuality of the situation ought, under such circumstances, to be recognized. . . . The appellant, NeCamp, is shown to be a confirmed criminal, an enemy of society. But society cannot ignore its legitimate concept of justice even for such an insubordinate member. As stated by [Justice Frankfurter of] the Supreme Court of the United States not long ago in regard to a heinous crime: ‘A shocking crime puts law to its severest test. Law triumphs over natural impulses aroused by such a crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt. It is not enough that a trial goes through the forms of law. ... Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own safeguards against the misuse of capital punishment.’ ” (NeCamp, supra, 225 S.W.2d at p. 112 , quoting Fisher v. United States (1946) 328 U.S. 463, 477 [ 90 L.Ed. 1382 , 66 S.Ct. 1318 ] (dis. opn. of Frankfurter, J.); accord, Ex parte Troha (Ala. 1984) 462 So.2d 953, 954 [reversing rape conviction based on juror misconduct where juror stated in his declaration that he “felt compelled” during trial to ask his brother, a minister, “for guidance and scripture references so as to enable [him] to make a proper and just decision”].)
As in NeCamp , there is no denying the enormity of defendant’s crimes. However, there is substantial evidence in the record that defendant’s killings were not the acts of a cold, calculating, rational killer, but the acts of a highly disturbed, delusional, and mentally ill human being. It is therefore not surprising that the jurors struggled over their decision to impose the death penalty on this defendant. Indeed, the fact that two jurors actively sought advice on this very topic from their pastors is tangible evidence that defendant’s fate was no foregone conclusion.
But K.A.’s and B.P.’s misconduct went far beyond the simple request for spiritual guidance found prejudicial in NeCamp and Troha. The two jurors received their pastors’ assurances that the death penalty was the proper punishment for defendant. They carried these assurances into the jury room, further infecting the deliberative process. K.A. highlighted and shared with undecided jurors improper biblical material that advocated death for murderers without consideration of any mitigating circumstances that might have inured to defendant’s benefit. B.P. discussed the fact that her pastor offered her guidance on this case. The jury’s deliberative process was so permeated *335 with improper religious discussion, one juror was finally prompted to remind the group that such considerations were not supposed to be part of their decision. But the bell could not be unrung. The jury returned a death verdict the next day.
The degree of the juror misconduct here, in its totality, leads to the conclusion that K.A. and B.P. were improperly influenced by the events of the preceding weekend, tainting the jurors, the jury’s deliberations, and the verdict itself. The fact that two jurors received approval from their spiritual leaders to impose a death sentence on defendant only serves to highlight the nature and degree of misconduct. While the majority seemingly contents itself by emphasizing the “strength” of the evidence against defendant, it is error to minimize the totality of the arrant juror misconduct here. “From the point of view of society, the action of the sovereign in taking the life of one of its citizens . . . differs dramatically from any other legitimate state action. It is of vital importance ... to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 357-358 [ 51 L.Ed.2d 393 , 97 S.Ct. 1197 ].) The tainted penalty phase verdict falls far short of this standard.
I concur in the majority’s affirmance of defendant’s murder conviction and the special circumstance findings, but I would reverse the judgment of death.
George, C. J., concurred.
Appellant’s petition for a rehearing was denied April 14, 2004, and the opinion was modified to read as printed above. George, C. J., Kennard, J., and Moreno, J., were of the opinion that the petition should be granted.
All further statutory citations are to the Penal Code.
The majority appears to conclude that this remark by Juror B.P. did not occur until after deliberations, pointing out that Juror K.A.’s declaration is ambiguous as to when B.P. made the comment, and that B.P. declared that she did not tell the other jurors what her pastor had said. (Maj. opn., ante, at p. 309, fn. 13.) But another juror, E.M., declared that during deliberations B.P. mentioned that she had spoken to her pastor. It is reasonable to infer that the declarations of K.A. and E.M. both refer to the same statement by B.P., in which case E.M.’s declaration demonstrates that it was said during deliberations.
In the wake of two more recent decisions by the United States Supreme Court (United States v. Olano (1993) 507 U.S. 725 [ 123 L.Ed.2d 508 , 113 S.Ct. 1770 ]; Smith v. Phillips (1982) 455 U.S. 209 [ 71 L.Ed.2d 78 , 102 S.Ct. 940 ]), there is doubt as to the continuing validity of the presumption of prejudice articulated in Remmer v. United States, supra, 347 U.S. 227 . (See, e.g., U.S. v. Dutkel (9th Cir. 1999) 192 F.3d 893, 894-896 [presumption applies to cases of jury tampering]; U.S. v. Sylvester (5th Cir. 1998) 143 F.3d 923, 934 [“the Remmer presumption of prejudice cannot survive Phillips and Olano,” and remains applicable “only when the court determines that prejudice is likely”]; U.S. v. Williams-Davis (D.C. Cir. 1996) 319 U.S. App. D.C. 267 [ 90 F.3d 490, 496 ] [presumption exists but is “not . . . particularly forceful”]; U.S. v. Zelinka (6th Cir. 1988) 862 F.2d 92, 95 [“Smith v. Phillips reinterpreted *319 Remmer to shift the burden of showing bias to the defendant rather than placing a heavy burden on the government to show that an unauthorized contact was harmless”]; Stockton v. Com. of Va. (4th Cir. 1988) 852 F.2d 740, 744 [presumption still applies to third party communications with jurors].) I see no need to address this question here, because I find the jury misconduct here to be prejudicial by applying the standards enunciated by California decisions applying state law.
Although the Chief Justice’s opinion in Nesler, supra, 16 Cal.4th 561 reflected the view of only three justices, Justice Baxter’s dissenting opinion (signed by Justices Chin and Brown) did not disagree with this standard; rather, it disagreed with the Chief Justice’s conclusion that application of the standard required reversal of the defendant’s conviction. (Id. at pp. 593-599 (dis. opn. of Baxter, J.).) Nor did Justice Mosk’s concurring opinion express any disagreement with the standard. (Id. at pp. 591-593 (cone. opn. of Mosk, J.).)
The first two verses read: “If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death. Or if anyone has a stone in his hand that could kill, and he strikes someone so that he dies, he is a murderer; the murderer shall be put to death.” (The complete version of this scripture appears in the majority opinion, ante, at page 298, footnote 10.)
Given the pastor’s “higher authority” and the seriousness of the subject matter, K.A.’s remark that her pastor was “joking” when he said he “would impose the death penalty on Mr. Danks” does not diminish the impact of the pastor’s statement. The pastor’s comments were evidently designed to further put K.A. at ease and make her more comfortable with a decision to impose a capital sentence on defendant.
The majority states that K.A.’s statement in her declaration, “But because of the feelings I had, I felt the necessity of talking to my husband,” is excludable under Evidence Code section 1150. (Maj. opn., ante, at pp. 301-302.) I disagree. The statement explains K.A.’s conduct in talking to a nonjuror and does not delve into the subjective reasoning process of her verdict. Thus, this statement is “admissible evidence ... as to statements made, or conduct, conditions, or events occurring ... of such a character as is likely to have influenced the verdict *328 improperly.” (Evid. Code, § 1150, subd. (a).) As noted by the majority, ante, at page 302, “This statute distinguishes ‘between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror ....’” (People v. Steele (2002) 27 Cal.4th 1230, 1261 [ 120 Cal.Rptr.2d 432 , 47 P.3d 225 ].)
As noted by the majority (maj. opn., ante, at p. 298), K.A. stated in her declaration, “I was leaning toward the death penalty but I felt discomfort about imposing the death penalty. If I was going to vote for the death penalty I wanted to feel good about it.” This statement was excludable under Evidence Code section 1150, subdivision (a) (maj. opn., ante, at pp. 301-302), and does not enter into the conclusion that K.A. had not yet made her death penalty decision after deliberations concluded on Friday.
While the majority trumpets the fact that B.P. declared that “[a]t no time during the deliberations did I relate to the other jurors what my pastor had said to me” as evidence of the nonprejudicial nature of B.P.’s misconduct (maj. opn., ante, at p. 309, fn. 13), it completely misses the mark. Specifically, Juror E.M. stated in her declaration that during deliberations B.P. stated she had asked her pastor for guidance. Thus, even if B.P. did not relate to other jurors the specifics of that conversation, she apparently did not hesitate to make the jury aware that such a conversation took place.
The majority also makes the implausible suggestion that “we have no idea” when B.P. told K.A. “ ‘she had talked to her pastor and he had referred her to . . . the Book of Numbers.’ ” (Maj. opn., ante, at p. 309, fn. 13.) Given Juror E.M.’s declaration that during deliberations B.P. told the jurors she had asked her pastor for guidance, and given the fact that the purpose of the jurors’ declarations was to determine whether prejudicial juror misconduct occurred during deliberations, the only reasonable conclusion is that B.P. mentioned her pastor’s conversation to K.A. during deliberations.
The majority claims, based on this record, that “[w]e are not given any information as to what this discussion entailed.” (Maj. opn., ante, at p. 313.) Not so. K.A. declared that she discussed and shared her highlighted copy of biblical passages from the Book of Numbers with undecided jurors; B.P. told jurors during deliberations that she asked her pastor for guidance as to the ultimate decision in this case; and this improper religious discussion was of such magnitude that a fellow juror finally took offense later in the day, stating that “God does not play a part in this decision.” Simply stated, there is sufficient evidence in the record to determine the content of a portion of the jury’s improper religious discussion. Like the proverbial ostrich, the majority ignores too much.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782312. Public record. Not legal advice.