Filed 8/18/26 In re Henri CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re WILLIAM HENRI on Habeas Corpus. A175653
(Napa County Super. Ct. No. 19-CR-002488)
A jury convicted defendant William Henri of two counts of committing a lewd act on a child and found true an enhancement for substantial sexual conduct. In prior proceedings, this court affirmed the judgment and denied Henri’s first petition for writ of habeas corpus, which alleged ineffective assistance of counsel. The California Supreme Court subsequently granted review of the writ petition, reversed our denial, and remanded the matter for further proceedings. We, in turn, issued an order to show cause and transferred the matter to the trial court for an evidentiary hearing, after which the court denied relief.
Henri now files a second petition for writ of habeas corpus. He contends trial counsel rendered ineffective assistance by introducing evidence of Henri’s extramarital affairs and not obtaining a ruling on a pending motion in limine concerning evidence of these affairs. Henri further contends the admission of the evidence was prejudicial. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND Our prior opinion contains a detailed recitation of the underlying facts.
(People v. W.H. (Apr. 19, 2024, A164756) [nonpub. opn.].) We summarize only those facts relevant to the present petition.
The Underlying Prosecution The victim reported that Henri sexually abused her over several years, beginning when she was approximately four and her family resided with Henri and his partner. When she was 12 years old, the victim first disclosed the abuse to her online girlfriend and, shortly thereafter, to her mother. The victim began therapy, and her therapist reported the abuse to law enforcement.
The Napa County District Attorney charged Henri by amended information with two counts of sexual penetration with a child age 10 or younger (Pen. Code, § 288.7, subd. (b); counts 1–2; further undesignated statutory references are to the Penal Code), and two counts of committing a lewd act on a child under age 14 (§ 288, subd. (a); counts 3–4). The information also alleged that Henri engaged in substantial sexual conduct with a child under age 14 during the commission of counts 3 and 4 (§ 1203.066, subd. (a)(8)). Evidence at Trial At trial, the victim testified to four separate instances when Henri touched her vagina—they occurred while sitting on his lap, in his backyard hot tub, and twice while in bed at his house. The victim did not immediately inform anyone about the abuse because she was confused, did not understand what was happening, and attempted to rationalize it to herself. During one instance she began to cry, and Henri informed her, “ ‘This is our secret.’ ” The abuse made her feel gross and disgusted, she has a difficult time trusting
3
people, especially males, has “really bad” thoughts, and was scared to be alone at night.
The prosecution also offered testimony from the victim’s sister, mother, and an expert in child abuse. The mother stated the victim was a very outgoing child, but her personality began changing between the ages of four and six. The mother noted the victim began wearing many layers of clothes even in the summer. The sister testified that the victim began crying when disclosing the abuse. Both represented they believed the victim. The expert, an investigator with the Napa County District Attorney’s Office, testified the victim immediately became visibly upset when trying to read in front of the investigator an old note on her phone about the abuse. The note stated Henri “ ‘fingered’ ” her beginning when she was five, she hated her body, she was scared of Henri, and she never reported the abuse because he told her not to say anything.
Henri testified in his own defense and denied abusing the victim. The defense also offered multiple character witnesses attesting to Henri’s honesty and good character. In addition, defense witnesses testified the victim frequently lied and had a reputation for lying; Henri’s partner, his partner’s sister, and her sister’s son all testified that the victim was happy when visiting their home; and expert witnesses in the areas of forensic psychology, memory, and false reporting also testified.
The jury convicted Henri of two counts of committing a lewd act on a child under age 14 (counts 3 and 4) and found true the substantial sexual conduct enhancement. The jury deadlocked on the charges of sexual penetration with a child age 10 or younger (counts 1 and 2).
4
The Affairs Evidence During a pretrial hearing, the prosecutor advised the court that the defense intended to present numerous witnesses to testify to Henri’s honesty. The prosecutor argued that Henri’s past affairs, disclosed during a psychological evaluation with defense expert Richard Geisler, Ph.D., could be used to impeach Henri’s character for honesty and truthfulness. Defense counsel asked for the issue to be resolved before Henri had to decide whether to testify. The court agreed, but deferred ruling and instructed counsel to raise the matter when the issue arose during trial.
Neither party revisited the issue before Henri testified. Defense counsel first elicited testimony regarding the affairs during Henri’s direct examination. In response to questioning by his counsel, Henri acknowledged having had three affairs: one while he and his girlfriend were “breaking apart” but “still officially together”; one “toward the end” of his marriage when “things [were] going wrong”; and the most recent during his current relationship.
As to the most recent affair, Henri testified he felt “crappy” about it, and it never should have happened because his partner “is a damn good woman.” When asked if he lied about the recent affair, Henri responded, “[P]robably. But, you know, I don’t recall specifics. It was almost don’t ask, don’t tell.” He again emphasized that he wished he “had never let it happen” and felt sad he couldn’t “turn back time and fix it.” He stated the relationships and affairs occurred with women ranging from approximately eight years younger than him to eight or nine years older than him. The prosecution then cross-examined Henri about the affairs, asking if Henri could have imagined having an affair when he first began seeing his partner; Henri responded “never” and said it was very out of character.
5
The prosecutor also asked the defense character witnesses whether evidence of past affairs would alter their opinions regarding Henri’s honesty. Almost all responded in the negative, testifying that it would not change their opinion. One witness said it would shock her because it would be out of character for him, and one testified that he would have to know more about the situation to express an opinion. None expressly stated such evidence would alter their opinions. Prior Appellate and Habeas Corpus Proceedings Henri filed both an appeal and a petition for writ of habeas corpus. As relevant here, the habeas corpus petition alleged trial counsel rendered ineffective assistance by failing to obtain a ruling on the admissibility of the affairs evidence and by introducing that evidence during Henri’s direct examination. (In re W.H. (June 20, 2023, A168060).) Henri submitted a declaration from trial counsel stating his failure to seek exclusion of the affairs evidence was an oversight rather than a tactical decision.
This court summarily denied the petition. (In re W.H. (Apr. 19, 2024, A168060).) Henri sought review in the California Supreme Court, which granted review and directed the parties to address the following issue: “Is evidence of specific acts of infidelity admissible under Evidence Code section 1102, subdivision (b) to rebut evidence of the defendant’s character for honesty?” (In re W.H. (July 24, 2024, S285195).) The Supreme Court vacated this court’s summary denial and directed us to issue an order to show cause (OSC), returnable before the Napa County Superior Court. (Ibid.)
We subsequently issued an OSC directing the Attorney General to demonstrate why relief should not be granted on the ground that trial counsel rendered ineffective assistance. (In re W.H. (July 25, 2024,
6
A168060).) This court further observed that an evidentiary hearing would likely be necessary. (Ibid.)
Following the evidentiary hearing, the trial court denied relief. The court found the testimony of trial counsel, Jess Raphael, credible: he testified he mistakenly believed the affairs evidence had already been deemed admissible and therefore erred by introducing it during the defense case. The court also credited counsel’s testimony that the defense considered its character evidence sufficiently important to outweigh any negative effect from the affairs evidence. The trial court further explained that, had it ruled on admissibility, it would have excluded the two older affairs, which had occurred 30 to 40 years earlier, but admitted the most recent affair, which occurred with Henri’s current partner approximately 10 years before the charged offenses. The court concluded the more recent affair “clearly involves dishonesty [that] would be relevant under Evidence Code Section 1102.” The court also observed that the prosecutor’s examination focused primarily on the more recent affair and did not unduly emphasize the issue. Accordingly, the court concluded the evidence did not have “a huge impact on the trial.”
The trial court noted Raphael’s overall performance throughout the proceedings, including his “decades of experience,” efforts to resolve the case before trial, effective motion practice, jury selection, cross-examination, presentation of a thorough defense case, and a compelling closing argument. The court also highlighted evidence corroborating the victim’s credibility.
The court ultimately concluded: “Even if, affirmatively, offering the evidence of the affairs was, in fact, an error, it doesn’t take away from the fact that the defendant received solid representation from a very capable, skilled criminal defense attorney. There’s just no way I can conclude, based
7
on my experience and my observations at trial, that the defendant received . . . ineffective assistance at trial.”
Henri thereafter filed the present habeas corpus petition. This court initially requested the parties file an informal opposition and reply to the petition, and the parties proceeded to file such briefs. We then issued an OSC, requesting that the Attorney General file a return or elect to designate the informal opposition as the return to the petition, and that Henri file a traverse or elect to designate his reply as the traverse. The Attorney General subsequently elected to designate the informal opposition as the return, and Henri filed a formal traverse.
DISCUSSION
I. Ineffective Assistance of Counsel The federal and California Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Anderson (2015) 234 Cal.App.4th 1411, 1416.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.)
To establish the first Strickland prong, a defendant must show that counsel’s performance “ ‘ “ ‘ “fell below an objective standard of reasonableness under prevailing professional norms.” ’ ” ’ ” (People v. Barrett (2025) 17 Cal.5th 897, 969 (Barrett).) In evaluating this prong, “ ‘a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.’ ” (Id. at pp. 1013–1014.)
8
To establish the second Strickland prong, a defendant must demonstrate “ ‘resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.’ ” (People v. Jasso (2025) 17 Cal.5th 646, 675.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
As “[t]he object of an ineffectiveness claim is not to grade counsel’s performance,” where possible it is preferable “to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice” without addressing whether counsel’s performance fell below an objective standard of reasonableness. (Strickland, supra, 466 U.S. at p. 697.)
A. Trial Counsel’s Performance Henri contends trial counsel performed deficiently in two regards.
First, counsel had a duty to seek exclusion of the affairs evidence but failed to obtain a ruling on its admissibility. Second, counsel inadequately investigated and prepared the defense by eliciting the affairs evidence during direct examination without first discussing the information with Henri.
As to the first contention, the parties do not dispute counsel’s error.
During the evidentiary hearing, trial counsel testified he failed to obtain a ruling on the affairs evidence because he was “under the mistaken belief that [the evidence] had been admitted,” had “forgotten that [the court] had deferred that issue,” and believed the issue “was resolved at the in limine to my detriment.” The trial court found counsel’s testimony credible. We accept the parties’ agreement that trial counsel’s failure to secure a ruling on the admissibility of the affairs evidence “fell below an objective standard of
9
reasonableness under prevailing professional norms.” (Barrett, supra, 17 Cal.5th at p. 969.)
The parties disagree, however, whether counsel also performed deficiently by eliciting the affairs evidence. Henri contends counsel “failed to ask his own client for details about the affairs” and then “blindly asked” Henri to reveal those facts. But the record does not indicate counsel failed to adequately prepare for trial or Henri’s examination.
To the contrary, counsel testified he thoroughly investigated the case.
He spoke “at length” with Henri and his partner, interviewed other individuals who might possess relevant knowledge, and reviewed hundreds of photographs of the victim both to test her memory and to identify inconsistencies in her testimony. Counsel further testified he was “extremely” familiar with Henri and the case, was “extremely” prepared for trial, prepared nine character witnesses, filed approximately 15 motions in limine, and believed he had done his “best work” on the matter.
Moreover, counsel also testified he had discussed Henri’s testimony with him. Although counsel generally did not preview specific examination topics with a witness, he explained this reflected a deliberate practice: his “tactic[] was usually to try to make people [as] fresh on the stand as possible and as unrehearsed.” Notably absent from trial counsel’s declaration and testimony was any representation that counsel did not inquire about the affairs during his extensive investigation and preparation for the matter. The fact that counsel filed an in limine motion to exclude such evidence demonstrates that some discussion must have occurred between counsel and Henri.
Accordingly, counsel did not—as Henri contends—proceed without adequate investigation, preparation, or any rational strategy. Rather, the
10
record demonstrates counsel was highly experienced, thoroughly prepared, and employed a specific trial strategy of not rehearsing the details of a witness’s testimony in advance. (Barrett, supra, 17 Cal.5th at p. 1013 [“ ‘a reviewing court defers to counsel’s reasonable tactical decisions’ ”]; People v. Stanley (2006) 39 Cal.4th 913, 954 [“ ‘ “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” ’ ”].) To the extent counsel testified he lacked a strategic reason for eliciting the affairs evidence before obtaining a ruling on the in limine motions, that testimony established only the deficiency discussed above—his failure to obtain a ruling on admissibility—not a separate deficiency in his investigation of the case or preparation of Henri’s testimony.
Because we conclude counsel’s performance was not deficient in this regard, we need not address the Attorney General’s argument that this issue is procedurally barred. Nor do we address Henri’s argument that he suffered prejudice because of his counsel’s preparation, investigation, and examination.
B. Prejudice Counsel’s failure to obtain a ruling on the admissibility of the affairs evidence cannot constitute ineffective assistance, and therefore cannot establish prejudice, if the motion itself lacked merit. (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise a meritless objection is not ineffective assistance of counsel.”]; People v. Seumanu (2015) 61 Cal.4th 1293, 1313 [“Where a sound legal basis exists for the admission of evidence, an attorney is not ineffective for failing to object to its introduction.”].)
11
1. The Supreme Court’s Issuance of an OSC Does Not Establish Prejudice
Henri argues, without citation to authority, that the California Supreme Court would not have issued the OSC unless it concluded the affairs evidence was inadmissible and caused Strickland prejudice. The argument overstates the significance of the OSC.
As Henri correctly notes, an OSC issues when a reviewing court determines the factual allegations of a habeas corpus petition, if taken as true, establish a prima facie case for relief. (In re Sims (2018) 27 Cal.App.5th 195, 203.) But an OSC reflects only a preliminary determination that the petitioner would be entitled to relief if those allegations are ultimately proven. (Ibid.) It does not constitute a final determination of either the facts or the legal issues presented.
2. The Trial Court Properly Concluded the Most Recent Affair Was Admissible
Henri next argues the trial court misapplied Evidence Code section 1102 and failed to properly assess the remoteness of the affairs. According to Henri, the evidence would have been excluded absent counsel’s error. We disagree on the merits of his argument, and do not consider whether the argument was timely raised.
Although California law generally prohibits the use of character evidence to prove conduct, Evidence Code section 1102 creates an exception permitting a criminal defendant to introduce evidence of his or her good character and permitting the prosecution to rebut that evidence. (People v. Thompson (2022) 83 Cal.App.5th 69, 94; Evid. Code, § 1102, subds. (a), (b).1)
1 Evidence Code section 1102 states in relevant part: “In a criminal
action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by
12
Thus, a prosecutor may ask a defense character witness about a defendant’s acts or conduct inconsistent with the witness’s testimony, so long as the prosecutor has a good faith belief such acts or conduct took place. (People v. Hinton (2006) 37 Cal.4th 839, 902 (Hinton).) Likewise, when a defense witness expresses an opinion “ ‘as to the good character of the defendant, the prosecution must have the opportunity [under the Evidence Code] to let the jury test the validity of the opinion or the weight to be given to it by asking whether the holder of the opinion has knowledge of events or acts which have indisputably occurred.’ ” (People v. Clair (1992) 2 Cal.4th 629, 682–683.)
This principle is well established. In People v. Tuggles (2009) 179 Cal.App.4th 339, for example, the defendant introduced evidence that he was not prone to violence. (Id. at p. 358.) The court held the prosecution could question the witness regarding contrary information bearing on the defendant’s reputation in the neighborhood. (Ibid.) The court explained that while the “scope of inquiry into a defendant’s reputation is not unlimited,” the prosecution only must hold “[a] good faith belief . . . that the acts or statements asked about actually happened” to “question[] . . . the witness about their occurrence.” (Id. at pp. 357–358; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1528 [“Character evidence includes opinions, reputation, and specific instances of the person’s conduct. . . . The prosecutor can test the witness’s opinion by asking about his or her knowledge of the defendant’s misconduct . . . , even if the witness professes ignorance.”]; People v. Ramos (1997) 15 Cal.4th 1133, 1172–1173 [prosecutor allowed to ask character witness, who testified defendant’s religious conversion in prison
[Evidence Code] Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
13
included “turning away from past misdeeds involving force and violence,” about her knowledge of defendant’s possession of handmade knives while in prison]; Hinton, supra, 37 Cal.4th at p. 902 [after defendant’s mother testified defendant was a nonviolent person, prosecutor could ask her whether she remembered defendant shooting a man in the groin after she told defendant the man assaulted and robbed her].)
Courts retain broad discretion in determining the admissibility of such evidence, and we may not substitute our own judgment for the trial court’s exercise of its discretion unless it “ ‘falls outside the bounds of reason.’ ” (People v. Williams (1998) 17 Cal.4th 148, 162.)
Here, Henri placed his character for honesty and truthfulness at issue.
Such evidence is admissible under Evidence Code section 1102, subdivision (a). (People v. McAlpin (1991) 53 Cal.3d 1289, 1311 [trial court should have admitted lay testimony regarding a defendant’s moral character in a child molestation case].)
Nine witnesses were called to testify regarding Henri’s longstanding reputation for honesty and truthfulness, for example that Henri was “very sincere” and “credible and honest.” Their testimony reflected relationships spanning decades. Six character witnesses testified they had known Henri for more than 20 years. Another had known him since the late 1970’s or early 1980’s. And Henri testified he had attempted to be truthful and credible throughout his life.
Having introduced evidence of his good character for honesty, Henri opened the door to rebuttal evidence bearing on that trait. The prosecution was therefore entitled to ask, at a minimum, whether those witnesses were aware of Henri’s most recent affair and whether that information would
14
affect their opinions. The trial court did not err in concluding such evidence was admissible under Evidence Code section 1102, subdivision (b).2 Henri argues the admissibility of such evidence is limited by the degree of remoteness and the court should have measured remoteness from the date of trial testimony rather than from the charged offenses. We do not find this argument persuasive. The affair evidence was not offered solely to impeach Henri’s trial testimony. Rather, it was admitted to rebut testimony concerning Henri’s longstanding character for honesty. That distinction matters because the character witnesses did not limit their opinions to a discrete period. Given the broad temporal scope of the character evidence, the trial court acted within its discretion in concluding the most recent affair remained relevant to rebut that testimony.
The sole case on which Henri relies, People v. Mireles (2018) 21 Cal.App.5th 237, does not assist him as it addressed the admissibility of prior convictions for impeachment purposes and did not involve rebuttal character evidence admitted under Evidence Code section 1102. (Mireles, at p. 246.)
Henri next contends the prosecution failed to establish the preliminary facts necessary for admissibility under Evidence Code section 403. Specifically, Henri argues the prosecution’s knowledge of the affair was limited to information contained in an expert report, which lacked details regarding the timing, duration, and circumstances of the affair. The argument misapprehends the basis for admission. The evidence was offered as rebuttal character evidence under Evidence Code section 1102. Under
2 Specifically, the trial court concluded the most recent of the three
affairs was admissible, but the earlier two were not admissible based on remoteness. We address this distinction in greater detail below.
15
that provision, the prosecution need only possess a good faith belief that the conduct occurred. (Hinton, supra, 37 Cal.4th at p. 902.) Even assuming the prosecution was required to make some showing of dishonesty as a preliminary fact under Evidence Code section 403, subdivision (a), the expert report discusses the affair within the section entitled “Intimacy Deficits,” which recounts “potential problem areas for sexual offenders.” The report noted a “present” problem with “lovers/intimate partners” based in part on the affair. Henri’s own acknowledgement of the affair and its classification in the expert report satisfied these requirements.
Finally, Henri argues the affair evidence should have been excluded under Evidence Code section 352 as unduly prejudicial. (See People v. Hempstead (1983) 148 Cal.App.3d 949, 954 [if impeachment of character evidence “would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude [the evidence] under Evidence Code section 352.”].) We are not persuaded.
Evidence is unduly prejudicial under Evidence Code section 352 when it “ ‘uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” (People v. Felix (1994) 23 Cal.App.4th 1385, 1396 [“ ‘[P]rejudicial is not synonymous with damaging.’ ”].) Here, evidence regarding the most recent affair did not serve that function. The affair involved a consensual relationship with an adult woman and bore no resemblance to the charged offenses.
Further, the prosecution did not introduce the evidence to suggest a propensity to commit sexual crimes. As such, the prosecution did not seek to enflame the jury’s emotions but rather offered the evidence for the limited purpose of challenging testimony that Henri was an exceptionally honest and truthful person. (See, e.g., People v. Clark (2011) 52 Cal.4th 856, 935
16
[“Evidence that defendant had sexual contact with women other than [the woman to whom he considered himself married] during their relationship had some tendency in reason to . . . call his credibility into question.”]; People v. Houston (2005) 130 Cal.App.4th 279, 305 [“The court did not abuse its discretion in admitting this evidence of [past extramarital affairs] because it was relevant to appellant’s credibility.”].) And Henri utilized his testimony to express his love for his partner and his desire to “turn back time and fix it.”
Henri’s reliance on Winfred D. v. Michelin North America, Inc. (2008)
165 Cal.App.4th 1011 does not support exclusion under Evidence Code section 352. Winfred arose from a personal injury and tire defect case, in which evidence of an extramarital affair was irrelevant to the substantive issue in the case—the cause of the accident. (Id. at pp. 1014–1015, 1027, 1029.) Here, by contrast, the affair evidence directly responded to the defense’s character evidence.
Accordingly, we conclude the trial court acted within its discretion in determining that evidence of the most recent affair would have been admissible.
3. Any Error Regarding the Earlier Affairs Was Harmless The trial court concluded evidence of the most recent affair would have been admitted but evidence of the two earlier affairs would have been excluded. Even assuming the jury should not have heard evidence of those earlier affairs, reversal is warranted only if it is reasonably probable Henri would have obtained a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) He has not made that showing.
A review of the record demonstrates the case focused on the victim’s credibility and not on Henri’s credibility or the affairs. The prosecution emphasized the victim’s memory, her demeanor and lack of motive to lie, and
17
corroborating evidence. And the prosecution stated that “to acquit [Henri], you would have to find that [the victim is] not being truthful about this.” The prosecution did not argue that the jury was required to find Henri dishonest.
References to the two earlier affairs during trial and in closing argument were brief and infrequent. During trial, brief references to the earlier affairs were raised with only two of the character witnesses in an eight-day trial involving nine prosecution witnesses, 12 defense witnesses, and numerous exhibits. And the use of such evidence during questioning was limited. The prosecution asked those character witnesses whether they were aware that Henri had engaged in an affair, had two prior affairs before that, and had concealed those relationships from his partner, and whether that information affected their opinions regarding his honesty. To the extent this questioning diminished the force of the defense’s character testimony, it did so for the very purpose contemplated by Evidence Code section 1102.
Turning to closing argument, Henri has not identified any portion of the prosecution’s closing argument that emphasized the earlier affairs. He identifies only a discussion of the most recent affair and a brief reference to Henri being “secretive.” Neither argument focused on the older affairs, much less treated them as a significant basis for conviction.
In asserting prejudicial impact on the jury, Henri relies on a juror declaration, the fact that the jury deadlocked on the first two counts, and purported weaknesses in the prosecution’s case. These arguments do not support a finding of prejudicial impact, neither individually nor collectively.
We begin with the juror declaration. The juror stated he was one of three jurors who voted not guilty on counts 1 and 2. He had concerns with the victim’s memory during the relevant period and didn’t find the victim or her mother believable. Other jurors who “were set on convicting” Henri
18
didn’t believe the memory experts and were swayed by Henri’s use of the phrase “good girl” with both the victim and his partner. He claimed those who wanted to convict had the “strongest voices in the room,” some jurors “felt [Henri] was a ‘perv,’ ” the jurors did not like that Henri cheated on his partners, and some jurors felt if Henri lied about affairs he could be lying about this case. The juror concluded by stating he voted guilty on counts 3 and 4 “because if the case went this far through the court system it is possible that something did happen.”
Henri contends this declaration demonstrates that the affairs played a significant role in deliberations. However, he has failed to demonstrate the declaration’s admissibility.
Evidence Code section 1150, subdivision (a), allows courts to consider “statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly,” but excludes evidence that “show[s] the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” The statute thus “ ‘ “distinguishes ‘between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.’ ” ’ ” (People v. Flores (2021) 70 Cal.App.5th 100, 108.)
Here, the juror declaration recounts his own thought processes (e.g., “The accuser wasn’t believable”) and speculation as to the thought processes of other jurors (e.g., “The jurors who were set on convicting the defendant didn’t believe the memory experts” and were “strongly swayed by the fact that Defendant called his partner and the victim ‘Good Girls’ ”; “The jurors didn’t like that the Defendant cheated on his current partner”; the jurors “felt
19
if [defendant] lied or withheld telling his partners about his affairs he would also do the same regarding this case”). Not only does the juror declaration fail to establish a basis for his purported knowledge of the internal beliefs of other jurors; such statements also reflect a juror’s internal thought processes that are inadmissible. (People v. Hedgecock (1990) 51 Cal.3d 395, 419 [“[W]hen a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.”].)
Even if we were to consider the juror declaration, it does not support a finding of prejudice. Although the juror reported that some jurors disliked the fact that Henri had cheated on his current and prior partners, the juror did not suggest the verdict rested on that information. Instead, the juror identified other evidence—including Henri’s use of the phrase “good girl” to describe both his partner and the victim—as particularly influential. The juror also stated his decision to convict Henri on certain counts was based on considerations unrelated to the past affairs. Moreover, the jury deliberated over three days and remained deadlocked on counts 1 and 2, circumstances inconsistent with the notion that it is reasonably probable the brief reference to the two earlier affairs meaningfully impacted the jury or its deliberative process.
Next, Henri argues the jury’s deadlock on counts 1 and 2 is, in fact, evidence that the errors caused prejudice, citing People v. Zapata (2026) 118 Cal.App.5th 529 and People v. Cardenas (2026) 120 Cal.App.5th 828. But those cases are distinguishable. Zapata involved a coerced murder confession in violation of Miranda,3 which the court noted operates “ ‘as a kind of
3 Miranda v. Arizona (1966) 384 U.S. 436.
20
evidentiary bombshell.’ ” (Zapata, at p. 543.) In light of the jury’s finding in Zapata’s favor on the personal weapon use allegation and the first degree murder charge, the court concluded admission of the improper confession could not be deemed harmless beyond a reasonable doubt. (Ibid.) In Cardenas, the defendant was denied closing argument on aggravating sentencing factors. (Cardenas, at pp. 835–836.) The court noted Cardenas’s conviction of voluntary manslaughter rather than murder indicated the jury may have been receptive to arguments on the aggravated sentencing factors at issue. (Id. at p. 840.) Neither case supports Henri’s argument that a failure to convict on more serious charges evidences prejudice. Rather, a more reasonable interpretation of the deadlocked counts is that the jury could not conclude beyond a reasonable doubt that Henri penetrated the victim considering the lack of physical evidence, expert testimony regarding the size of a four-year-old girl’s vagina, and conflicting testimony.
Finally, Henri points to perceived weaknesses in the prosecution’s case, including the victim’s inconsistent statements and memory, as evidence that he would have obtained a more favorable result without admission of the two earlier affairs. None of these alleged weaknesses demonstrate a reasonable probability that the earlier affairs biased the jury against him, nor do they establish that the verdict was driven by improper evidence. While Henri fails to acknowledge such facts, the record contains evidence corroborating the victim’s account, including her note memorializing the abuse, her consistent allegations, testimony regarding Henri’s use of similar nicknames for both the victim and his partner (“good girl”), and evidence that the victim’s description of the abuse to her girlfriend was consistent with her trial testimony.
21
Viewed in the context of the entire trial, evidence of the earlier affairs played at most a minor role. Accordingly, it is not reasonably probable that Henri would have obtained a more favorable result had the earlier affairs evidence not been admitted.
DISPOSITION
The petition for writ of habeas corpus is denied.
PETROU, J.
WE CONCUR:
TUCHER, P. J.
FUJISAKI, J.
A175653 / In re Henri