Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County., No. F07908150, John F. Vogt, Judge.
Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
STATEMENT OF THE CASE
On February 4, 2008, the Fresno County District Attorney filed an information in superior court charging appellant Peter Cabrera with attempted second degree robbery (Pen. Code, §§ 211, 664), with personal discharge of a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)).
On February 6, 2008, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
On September 15, 2008, jury trial commenced.
On September 23, 2008, the jury commenced deliberations.
On September 24, 2008, the jury made requests for documentary evidence and for the read back of testimony. Later that day, the jury requested clarification of the concept of reasonable doubt.
On the morning of September 25, 2008, the jury returned a guilty verdict on the substantive count and true findings as to the special allegations. The court conducted a poll of the jury to confirm the verdicts and findings.
At 9:48 p.m. on September 25, 2008, a juror sent an e-mail to the court, explained there was a “hostile/angry environment” in the jury room, and complained that he/she was subjected to “hostility based slurs, comments and physical movements/gestures by other jurors.”
On January 8, 2009, appellant petitioned for an order disclosing personal juror information (Code Civ. Proc., § 237) and moved for a new trial on the ground of insufficient evidence to support the verdict (Pen. Code, § 1181, subd. 6).
All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.
On January 22, 2009, the People filed written opposition to appellant’s new trial motion and petition for personal juror information.
On January 30, 2009, the court denied appellant’s petition and motion, denied appellant probation, and sentenced him to the middle term of two years on the substantive count, a consecutive three-year term on the great bodily injury allegation (Pen. Code, § 12022.7, subd. (a)), and a term of 25 years to life on the personal discharge allegation (Pen. Code, § 12022.53, subd. (d)), to run concurrent to the term imposed on the substantive count. The court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (9)(b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and awarded 1, 289 days of custody credits.
On March 11, 2009, appellant filed a timely notice of appeal.
We will conditionally reverse the judgment of conviction, remand the matter to the superior court for further inquiry into alleged juror misconduct, and direct the superior court to correct one item of sentencing error, as conceded by the respondent.
STATEMENT OF FACTS
Testimony of Jorge Rodriguez
Just before midnight on October 20, 2007, Jorge Humberto Rodriguez Hernandez (Rodriguez) was working on a food truck parked adjacent to a car wash at First Street and McKinley Avenue in Fresno. His duties included taking orders and acting as cashier. Bobby Hauter and two friends walked to the truck to place an order. Two people approached Hauter, said they were going to rob the food truck, and told him to leave. They said, “You gotta go, doggie. We’re gonna rob the taco truck.” One of the men had a “furry hood” attached to a knee-length sweater or jacket. Hauter left the area of the food truck and called 911.
Rodriguez said two people arrived near the door of the truck and demanded money from the cash box. When Rodriguez told the pair there was no money, one of them brandished a small “gold color” gun. Rodriguez identified appellant as the individual with the gun. Rodriguez said the person with the gun was dressed in a black sweater similar to a hooded sweatshirt. The individual wore black glasses. Rodriguez could not see the individual’s hair color but did say he had goatee-like facial hair. Nevertheless, Rodriguez identified appellant as the person who tried to rob him.
After Rodriguez told the assailant there was no money, the individual hit the register with his right hand. Rodriguez tried to move the individual’s hand but the individual did so on his own. Rodriguez said he refused the individual any money. The assailant then “started getting like nervous” and fired the weapon, wounding Rodriguez’s groin area. A police officer and an ambulance arrived a few minutes later. Rodriguez was hospitalized and underwent surgeries for injury to his testicles and to his bladder. Rodriguez said the individual ran away without getting any money.
Testimony of Belen Melendrez
Belen Melendrez testified she was working with her boyfriend, Rodriguez, at the El Premio Mayor taco trailer at McKinley and Normal Avenues just before midnight on October 20, 2007. She heard someone loudly ask for money and assumed it was a customer wanting change. Melendrez was at the grill and turned around and approached the door of the trailer when she heard the person say, “Give me the f**king money.” Melendrez saw that the man was holding a small, shiny gun. At trial, she identified appellant as the man with the gun and said he had been dressed in a dark hooded sweater. He wore dark glasses and had a “shaven, but noticeable” beard. The hood was on and it covered appellant’s hair. Melendrez said appellant reached in toward the register. Rodriguez said there was no money in the register and tried to grab the weapon. Appellant fired, Rodriguez hunched over a little bit, and then Rodriguez fell outside the trailer.
Testimony of Officer Catton
Later that morning, Fresno Police Officer Gregory Catton conducted an “in-field showup” involving a suspect. The showup took place on East Mayfair Avenue. Four police officers and appellant were present at the showup. Catton said he read an “admonishment” from a card. After Catton did so, Bobby Hauter identified appellant as one of the men he had seen at the food truck. During the showup, Hauter told Catton that appellant was wearing black sunglasses and a black coat during the incident.
Testimony of Officer Depew
Fresno Police Officer Steven Depew testified he was on duty on the evening of the offense and received a broadcast about a shooting and robbery at a taco truck. Officer Depew and his partner, Officer Bryan Williams, also received word the suspect had fled on foot. Depew and Williams began to circulate in the area of the offense and found appellant using a cellular telephone while standing in the driveway of his residence on Mayfair Drive South. The dispatcher had also provided a description of the suspect, and Depew said appellant matched the physical characteristics of the suspect. Depew stood by appellant at the curb while other officers conducted an in-field showup. Officer Williams said appellant was dressed in a black shirt, black pants, dark shoes, and a dark blue jacket during the time of the showup.
Testimony of Officer Hoover
Fresno Police Officer Jason Hoover testified he was on patrol duty on the date of the offense and heard the dispatch broadcast of the incident. According to Officer Hoover, the dispatcher described the suspects as “two Hispanic males one of them 25 to 30 years of age wearing dark sunglasses. The other subject was almost the same description, wearing I believe a beanie with dark clothing.” According to Hoover, the dispatcher said the beanie was red and the dark clothing consisted of a dark-hooded sweatshirt with fur around the hood. Hoover further explained that the younger suspect was described as 25 to 26 years of age, wearing all black clothing and dark sunglasses, had a light complexion, and was armed with a silver handgun.
Stipulation of the Parties
On September 19, 2008, the court read the following stipulation to the jury:
“The People and the Defendant hereby agree to the following stipulation: (A), Jorge Rodriguez received severe injuries as a result from [sic] a gunshot wound on October 20th, 2007. Those injuries are as follows: (1), a gunshot wound to the penis and groin. (2), This wound caused Jorge Rodriguez to undergo several surgeries to the penis, testicles, bladder and other parts of the groin area. (3), To this day Jorge Rodriguez still feels some pain and discomfort, but is now fully functional again. (b), Those injuries constitute a great bodily injury as defined in both Penal Code Section 12022.7 and Penal Code Section 12022.53 subdivision (d). (C), The jury is to consider all elements met as they relate to great bodily injury and are to consider them true.”
Defense Evidence
Testimony of Officer Phebus
Fresno Police Officer Steve Phebus testified he interviewed Jorge Rodriguez through a Spanish language translator at Community Regional Medical Center Emergency Room on October 21, 2007. Rodriguez said the individual had no facial hair, was clean shaven, was approximately 25 or 26 years of age, and wore a “sweater hat” and big, black sunglasses.
Testimony of Identification Technician Wilson
Spring Wilson testified she was an identification technician with the Fresno Police Department at the time of the offense. She said an officer collected the suspect’s clothing in the prisoner processing area and she logged the items into evidence. The items included a black T-shirt, black wool or flannel-type pants, and blue zippered hoodless sweatshirt.
Testimony of Rosalinda Rivera
Appellant’s longtime acquaintance, Rosalinda Rivera, testified she spoke with appellant throughout October 20, 2007. At around 5:00 p.m. she asked appellant whether he wanted to attend a family party with her. Appellant said he did and Rivera picked him up around 6:00 p.m. at his mother’s home in the vicinity of First Street and McKinley Avenue. Rivera’s two-year old son was in the car when she picked up appellant. They next picked up someone named “Evie” and the four of them attended “a little cousin’s birthday party.” They left the party sometime between 10:00 and 10:30 p.m., went to a gas station for fuel, and then went to Rivera’s apartment on Calaveras Street and Divisadero Avenue at about 11:15 p.m. Rivera offered to drive appellant home but appellant said he would walk home. Rivera said appellant walked away talking on his cell phone. He departed no later than 11:30 p.m. Appellant was dressed in a navy blue collared sweater and black pants.
Testimony of Elvia “Evie” Gomez
Elvia “Evie” Gomez testified she was a childhood friend of appellant. On October 20, 2007, she accompanied appellant, Rivera, and Rivera’s son to “a little kid’s birthday party.” After the party, they returned to Rivera’s apartment. She saw appellant depart sometime between 11:00 and 11:30 p.m. and he was walking and talking on his cell phone. Gomez remembered speaking with a police investigator approximately two months after the offense. She told the investigator that appellant had been wearing, black shoes, black pants, a blue shirt, and a dark-colored hooded sweatshirt on the evening in question.
Testimony of Daniel Hernandez
Daniel Hernandez testified he had known appellant for approximately 10 years. Hernandez, a senior information technology consultant at California State University, Fresno, testified he also served as a private consultant and that appellant worked as his apprentice. Hernandez said he supplied a cell phone to appellant for work purposes and paid for appellant’s cell phone service. Hernandez said he and his clients made calls to appellant on the cell phone. Hernandez also acknowledged that appellant used the phone for personal use. Appellant did use the phone on the evening of October 20, 2007, and the phone bill reflected a collect call from a party whose identity was known to Hernandez.
Testimony of Forensic Scientist Kaminski
Laurie Kaminski testified that she worked as a forensic scientist for Forensic Analytical Sciences, a private crime laboratory in Hayward, California. Her duties include gunshot residue testing. Kaminski testified she received a gunshot residue kit from the Fresno Police Department with respect to appellant. Kaminski used a scanning electron microscope to examine the kit but did not detect any particles indicative of gunshot residue. Kaminski explained, “The time delay is a factor. Gunshot residue particles are lost over time and they are lost due to hand activity or someone washing their hands.” When further examined about negative results from GSR tests, Kaminski added, “[S]omeone could have fired a gun and lost the particles due to hand activity or the gun wasn’t producing a large amount of residue or somebody could have not fired a gun and gotten a negative result.…”
Further Testimony of Elvia “Evie” Gomez
Upon examination as a defense witness, Elvia “Evie” Gomez testified appellant wore a dark shirt on the evening of the offenses, but she could not remember whether it was blue or black. On cross-examination, she acknowledged telling an investigator in December 2007 that appellant’s shirt was blue. On redirect examination, Gomez said she could have been wrong when she spoke with the defense investigator. She did not remember appellant having anything on his head on the evening in question.
Testimony of Dr. Shomer
Robert Shomer, Ph.D., a psychologist, testified “[t]he baseline of accuracy in eyewitness identification is very low, so it doesn’t start off very high. The things that reduce it very significantly are sudden unexpected stressful events where weapons are present or there may be more than one perpetrator of the crime and where the entire face or the appearance of the perpetrator cannot be seen.…” Dr. Shomer also testified that “field showups” involving one suspect are inherently suggestive and that the best method for identification is a multiple set of live individuals “called a live lineup.” Dr. Shomer acknowledged that there may be many factors in a particular situation that may make an accurate report and identification doubtful. On cross-examination, Dr. Shomer admitted he could not testify as to how these factors affected the perception of the witnesses in appellant’s case. Shomer explained, “That’s for the jury to determine.”
Rebuttal Testimony
Defense investigator Alberto Custodio testified he interviewed Elvia “Evie” Gomez on December 6, 2007. Gomez said appellant was wearing black shoes, black pants, a blue shirt, and a dark-colored hooded sweater on the evening of October 20, 2007.
Facts Underlying the Allegations of Juror Misconduct and Appellant’s New Trial Motion
On the afternoon of September 23, 2008, the jury began the deliberations. At 4:30 p.m., the jury requested to hear certain testimony. On the morning of September 24, the court responded to the jury’s first inquiry. At 11:10 a.m., the jury asked to hear additional testimony.
At 3:10 p.m. on September 24, the jury asked to directly address the court. The foreperson stated the jury needed “some guidance.” The court determined the jury was unable to reach a unanimous verdict on count one and that four ballots had been taken. The court asked the foreperson if there was “any movement, ” and the foreperson said there was. The court asked if it could assist the jury with some further legal instruction or testimony. The jurors privately conferred, and the foreperson asked the court to explain the definition of reasonable doubt because “a couple of jurors are having a little difficulty understanding that exactly.” The court reinstructed the jury on reasonable doubt. Thereafter, the jury resumed deliberations. Later that afternoon, the court adjourned the deliberations for the day.
On the morning of September 25, 2008, the jury returned verdicts finding appellant guilty of second degree robbery (Pen. Code, §§ 211, 664) and finding it true that he intentionally discharged a firearm causing great bodily injury to Jorge Rodriguez (Pen. Code, § 12022.53, subd. (d)) and finding that he personally inflicted great bodily injury upon Rodriguez (Pen. Code, § 12022.7, subd. (a)). The court polled the jury and each signified the verdict of guilt and the findings on the special allegations constituted their “true, correct, personal, and unanimous verdicts.”
“[Penal Code][s]ections 1163 [polling jury] and 1164 [recording verdict in minutes] describe a culminating formal procedure for verifying the unanimity of the jury in open court, and thus they define the moment of transition for when a juror may and may not withdraw his or her affirmation of the verdict. Before the verdict is complete within the meaning of these sections, a juror’s expressions of doubt or confusion mandate further deliberations. After the passing of this moment, such expressions are an impermissible attempt to impeach the verdict. In this respect, [Penal Code] sections 1163 and 1164 define the final moment of the jury’s deliberative process.” (People v. Bento (1998) 65 Cal.App.4th 179, 191.)
After the court polled the jury, the court asked counsel, “Is there any legal cause why I should not discharge this jury at this time?” Both counsel responded in the negative. The court then instructed the jury:
“You have now completed your jury service in this case. On behalf of all the judges of the Fresno County Superior Court, everybody here in this courtroom, I want to thank you very much for your effort, your time, and your consideration of the case.
“Now that the case is over, you may choose whether or not to discuss the case and your deliberations with anyone. Let me tell you some things about the rules the law puts in place for your convenience and your protection. The lawyers in this case or their representatives may now talk to you about the case, including your deliberations, your verdict, and findings. Those discussions must occur at a reasonable time and place, and only with your consent. Please immediately report to this court any unreasonable contact made without your consent. And any lawyer or representative who violates the rules of professional conduct and the standing orders of this court regarding such conduct will be in violation of this court’s order and subject to sanction.
“I hereby order that the court’s record of personal juror identification information, including names, addresses, and telephone numbers shall be sealed until further order of the court. And if in the future this court is asked to decide whether this information will be released, notice will be given to any juror whose information is involved and such juror may oppose the release of this information and ask that any hearing on the release of information shall be closed to the public, and this court will decide whether and under what conditions any information may be disclosed.”
The court then excused and discharged the jury. At 4:15 p.m. that same day, a trial juror e-mailed Judge John F. Vogt, who presided at the trial, and stated:
“I voted incorrectly and against my own good judgment in the case trial People vs. Peter Cabrera in your courtroom today.
“I am the juror who was holding up the verdict the last two days because it had not been proven to me with the evidence presented that Peter Cabrera was guilty ‘beyond all reasonable doubt.’
“This morning, Thursday, September 25th we began jury deliberations once again at approximately 9 am. My fellow jurors became instantly enraged when it became apparent I still did not believe Peter Cabrera was guilty beyond all reasonable doubt. Due to the very angry and what I considered hostile pressure from the other jurors (among other things going on in the deliberation room aimed at me due to my ‘Not Guilty’ voting) I ‘broke’ and voted ‘guilty’.
“In addition to the hostile/angry environment I was in among the jurors, I believe I was not thinking clearly and not able to stand the pressure to having received bad news regarding my mother[’]s health at 8:30 pm last night (though I tried to and thought I was keeping my mind on the trial). After leaving the courthouse and having some time to think without the other jurors attacking me (ie, hostility based slurs, comments and physical movements/gestures by other jurors) I realized I had made an absolute mistake in how I voted.
“I apologize for the obvious problems I am about to cause by writing this–but I have to do ‘the right thing’ and I apologize for letting hostile fellow jurors and outside sources interfere with my vote before the verdict was reached, given and read. With all the evidence presented to me--I clearly believe Peter Cabrera is not guilty of what he is charge with.” (Italics in original.)
On January 8, 2009, appellant filed a petition for order disclosing personal juror information. In a supporting declaration, appellant’s trial counsel stated:
“[¶]... [¶]
“3. I am informed and believe, and on that basis, declare that the court is in possession of a letter written to the court by a juror in this case. In the letter, this juror described that she believed that the defendant was innocent, but that she was pressured by other juror(s) to the point that her will was overcome[.]
“4. Based on this letter and its contents, I am further informed and believe, and thereon alleged, that there exists sufficient cause to believe that juror misconduct may have occurred to the prejudice of the defendant, and that further research and investigation is warranted to confirm that juror misconduct occurred sufficient to act as a reasonable basis to a motion for new trial.
“5. In order to protect the privacy and sanctity of the jurors and given the above facts, I have made no other attempts to contact the jurors.
“6. Except through this petition, I have no way of determining the names, addresses, and phone numbers to research and investigate the reason(s) this juror felt compelled to write the court to express that she believed the defendant was not guilty notwithstanding the guilty verdict.
“7. Further investigation and research is necessary to verify and develop facts in order to present the court with adequate information upon which to rule on a motion for new trial.”
Defense counsel also filed a motion for new trial (Pen. Code, § 1181, subd. 6) on the ground of insufficiency of the evidence.
On January 22, 2009, the People filed written opposition to the motion for new trial and written opposition to the defense petition for order disclosing personal juror information. In the written opposition to the petition, the People asserted appellant did not make a prima facie showing of good cause for disclosure, that the e-mailed letter to Judge Vogt set forth subjective beliefs and was inadmissible under Evidence Code section 1150, and that the facts set forth in the letter did not establish misconduct. The district attorney specifically stated in the written opposition to the petition:
“Section 237(b) states that before any petition may be granted, the defense must provide a declaration showing good cause. The defendant claims that the court should provide for the personal juror information based upon a letter the Court received following trial from a juror. The defendant claims that based on this letter, Good Cause exists because this would be proof of juror misconduct and would be grounds for a new trial. This letter is not admissible, does not show juror misconduct, and does not provide grounds for a new trial. This letter shows that a properly polled member of the jury has had a case of ‘buyer’s remorse.’ ”
On January 30, 2009, the court heard the arguments of counsel and denied the motion to disclose juror information, stating in relevant part:
“Well, let me just say that as a judge these are moments that I hate to have to deal with. I take very seriously that the moment of truth after a verdict has been read is asking the jury one last time if it is in fact their true, correct, personal, and unanimous verdict and finding. I’m very deliberate about doing that. And I do that just because I don’t want to deal with things like this. The things that are brought to my attention by way of this letter, however, no matter how disturbing the job becomes it is still ruled by law. And in evaluating requirements of Evidence Code 1150 … I just don’t find that there is a basis to go any further.
“Federal case law under ‘Evidence, ’ Federal Rules of Evidence, 606 subdivision (b), is the federal counterpart to our Evidence Code 1150 sets forth very persuasive authority on the specific issue before us. And particularly the case of United States versus Briggs, cited at 291 F.3d 958, says that this rule of evidence clearly bars consideration of the declaration’s allegation. The juror said she was subjected to pressure by other jurors. It bars such declaration as evidence of a juror being intimated. Other federal cases, particularly United States versus Tallman … 952 F.2d 164, states that it’s not correct to admit proof of contentiousness and conflict to impeach a verdict. United States versus Norton, 867 F.2d 1354, notes that alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the guilty verdict. That’s also noted in United States versus Decoud … which in fact is a Ninth Circuit case, 456 F.3d 996.
“As a matter of substantive law, the juror’s mental processes leading to the verdict are not to be considered at this time. I believe that’s included within 1150 and cited back to the definition of relevant evidence under Evidence Code 210. But it is also clear under another federal case that as a matter of policy, Evidence Code Section 1150 subdivision (a) excludes evidence of the subjective reasoning processes of jurors to impeach their verdicts. Such evidence is not material. It is not relevant evidence as defined in Evidence Code Section 210 nor as it is defined in the California Constitution Article I, section 28 subdivision (d). [¶] … [¶]
“There are all kinds of forms of buyer’s remorse and I, quite frankly, don’t doubt that this particular juror had misgivings, but after the fact. And I’m satisfied with my inquiries and my personal review of each of those jurors’ responses at the time that I polled them that when these verdicts were signed off on, when they were submitted to me by the foreperson, when they were read by Madam Clerk and when they were confirmed by my subsequent polling that everybody in that jury box was satisfied with their work.
“ … I think to even start inquiring into what could possibly have triggered this letter, we would be unduly infringing upon the other people who participated in rendering these verdicts, questioning their motives, questioning their actions when they don’t have any misgivings about it. They responded the same way this juror did.
“I don’t like these situations. They disturb me. And I’ve looked at it not only from the objective standards of law that I believe clearly dictate the action that I need to take today, but I’ve looked at it from that very personal standpoint of what happened when I polled those people after the verdicts were read. I do that very deliberately. And I’m satisfied that these verdicts were rendered according to law, that this group of people diligently deliberated, searched their souls as individuals and reached a unanimous collective verdict and finding on each and every matter set forth.”
DISCUSSION
I. APPELLANT’S TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE BY CALLING A WITNESS WHO UNDERMINED THE DEFENSE
Appellant contends defense counsel rendered ineffective assistance by calling Elvia “Evie” Gomez as a defense witness.
He argues:
“Defense counsel’s duty to her [sic] client includes the duty to call witnesses that support the client’s case. There is a concomitant duty not to call harmful witnesses. Defense counsel harmed her [sic] client’s case by turning over Elvia Gomez’s statement to the prosecution and calling Gomez as a witness. The defense investigator’s report stated that Ms. Gomez said Cabrera was wearing a dark hooded sweater. [Citations.] Thus, counsel was aware that the witness placed Mr. Cabrera in the same distinctive clothing worn by the robber close in time to the actual robbery.
“Ms. Gomez’s testimony had no value to the case at all, which was apparent from the defense investigator’s report. Gomez’s account of the time line varied from the consistent account given by Rosalinda Rivera. Ms. Gomez told the defense investigator that they picked her up at 5:00 p.m., and that they left the party at 11:00 and got to Ms. Rivera’s place at 11:30 p.m. [Citations.] This time frame is inconsistent with the cell phone records which indicate a call initiated at 11:22 p.m. [Citation.] Defense counsel should have seen this discrepancy prior to trial, should not have released Gomez’s report to the prosecutor, and should not have called Gomez to testify.”
The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “ ‘ample opportunity to meet the case of the prosecution.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; see also People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v. Williams (1997) 16 Cal.4th 153, 214-215.) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
Ineffective assistance analysis is highly case specific, because attorney errors come “ ‘ “in an infinite variety.…” ’ ” (In re Resendiz (2001) 25 Cal.4th 230, 243, quoting Strickland, supra, 466 U.S. at p. 693, and disapproved on another point in Padilla v. Kentucky (2010) ___U.S.___, 130 S.Ct. 1473, 1484.) Accordingly, in every case “ ‘the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’ ” (In re Resendiz, supra, 25 Cal.4th at p. 243, quoting Strickland, supra, at p. 688.) In California, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Elvia “Evie” Gomez testified she, Rosalinda Rivera, Rivera’s young son, and appellant were at a child’s birthday party on the evening of the attempted robbery and shooting. Gomez and Rivera both testified for the defense. Both women confirmed they were with appellant on the evening of October 20, 2007, and both testified that appellant was on his cell phone when he left them that evening. Appellant’s cell phone records showed a call commencing at 11:22 p.m. and lasting 73 minutes. As noted above, defense investigator Albert Custodio testified he interviewed Elvia “Evie” Gomez on December 6, 2007. Gomez said appellant was wearing black shoes, black pants, a blue shirt, and a dark-colored hooded sweater on the evening of October 20, 2007. However, during trial Gomez testified she did not remember what appellant, Rivera, or she herself wore on the evening of the offenses. Nevertheless, defense counsel showed her a zippered, blue, hoodless sweatshirt at trial. Fresno Police Identification Technician Spring Wilson had identified the sweatshirt as a garment appellant wore at the time of arrest. Gomez said the blue sweatshirt looked like the sweatshirt appellant wore on the evening they were together although she could not remember.
Defense counsel’s decision to call Gomez as a defense witness did not amount to ineffective assistance as she corroborated the testimony of Rosalinda Rivera and confirmed appellant’s whereabouts at the time of the offense. The fact that she offered equivocal statements about the nature of appellant’s apparel did not undermine the defense. Even if we assume that calling Gomez to testify amounted to ineffectiveness, appellant cannot demonstrate prejudice. Jorge Rodriguez, the victim, and Belen Melendrez, his girlfriend and coworker, both identified appellant as the man with the gun who shot Rodriguez. Defense counsel would not have lessened the impact of this adverse testimony by declining to call Gomez as a defense witness.
Defense counsel did not render ineffective assistance at trial.
II. TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE BY FAILING TO MOVE FOR A NEW TRIAL BASED UPON A POSTVERDICT E-MAIL ALLEGING JUROR MISCONDUCT
Appellant contends trial counsel rendered ineffective assistance by failing to move for a new trial and request an evidentiary hearing after the trial judge received a postverdict e-mail alleging juror misconduct.
He specifically contends the juror e-mail was a sufficient basis for a new trial motion and that defense counsel did not need to obtain confidential juror information to move for a new trial:
“Counsel did not need to ‘verify and develop facts’ in order to bring a motion for a new trial. Counsel had a duty to bring a motion for a new trial based upon the juror’s letter, which provided specific statements and physical conduct constituting coercion (‘hostility based slurs, comments and physical movements/gestures by other jurors’). [Citation.] Counsel’s duty included a duty to request an evidentiary hearing in order to question the juror who claimed coercion. The juror’s letter made an evidentiary hearing permissible, even in light of the polling of the jurors. It is reasonably probable that had counsel moved for a new trial and an evidentiary hearing, that the court would have granted the motion.”
As noted above, “[t]o establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940, disapproved on another point in People v. Lasko (2000) 23 Cal.4th 101, 110.) The Supreme Court has considered the concept of an “objective standard of reasonableness” at length:
“We consider counsel’s performance from his perspective, analyzing counsel’s decisions based on what he knew or should have known at the time. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244; In re Andrews (2002) 28 Cal.4th 1234, 1253.)
“The reasonableness of counsel’s performance is assessed according to the prevailing norms at the time. The United States Supreme Court has ‘declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that “the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” ’ (Wiggins v. Smith (2003) 539 U.S. 510, 521; accord, Rompilla v. Beard (2005) ___ U.S. ___ [125 S.Ct. 2456, 2462].)
“In evaluating counsel’s performance, we assess both the reasonableness of counsel’s decisions and the reasonableness of the investigation that underlay each decision. ‘[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.’ (In re Marquez, supra, 1 Cal.4th at p. 602; accord, In re Avena, supra, 12 Cal.4th at p. 722; see also In re Jones (1996) 13 Cal.4th 552, 564-565.) “ ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.…’ ” [Citations.]” (In re Thomas (2006) 37 Cal.4th 1249, 1257-1258.)
In view of trial counsel’s January 8, 2009, declaration, counsel was aware that juror misconduct might serve as a basis for a new trial motion. However, counsel maintained that further investigation and research was required before filing a new trial motion on such a basis. To that end, defense counsel filed a motion for disclosure of the confidential contact information for the jurors pursuant to sections 206 and 237. As we will discuss in section III, post, the court heard and denied the motion.
On appeal, appellant contends his counsel did not need to obtain confidential juror information to move for a new trial and that his counsel was ineffective by failing to do so. The question before us is whether appellant’s trial counsel acted reasonably within prevailing professional norms by taking the preliminary step of petitioning for confidential juror information as opposed to immediately requesting an evidentiary hearing or filing a motion for new trial based upon apparent juror misconduct.
“When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion. [Citation.]” (People v. Perez (1992) 4 Cal.App.4th 893, 906; People v. Bryant (2011) 191 Cal.App.4th 1457, 1467 (Bryant).)
“[P]roperly executed juror affidavits are required to establish jury misconduct.…” (Bryant, supra, 191 Cal.App.4th at p. 1468.) “ ‘Evidence Code section 1150 authorizes the use of jurors’ affidavits to show objective facts which occurred in the jury room and could have improperly influenced the jury. [Citation.] However, a jury verdict may not be impeached by hearsay affidavits. [Citation.]’ ” (Bryant, supra, 191 Cal.App.4th at p. 1468.) For example, an unsworn letter from a jury foreperson has been held insufficient to warrant a new trial. (People v. Von Villas (1992) 10 Cal.App.4th 201, 251-253; Bryant, supra, 191 Cal.App.4th at pp. 1468-1469.) “[A] trial court does not abuse its discretion in denying a motion for new trial based upon juror misconduct when the evidence in support constitutes unsworn hearsay. [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 810.)
Appellant essentially implies that the juror’s e-mail to Judge Vogt did not constitute hearsay and did demonstrate a strong possibility of prejudicial misconduct. A criminal defendant can “reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.]” (Ledesma, supra, 43 Cal.3d 171, 215.) Here, the fact that defense counsel first elected to seek personal juror identifying information rather than immediately seek to invoke the inherent power of the court to conduct an investigation or hold an evidentiary hearing did not mean that counsel acted irrationally or that counsel’s choice “fell below an objective standard of reasonableness under prevailing professional norms.…” (People v. Dennis (1998) 468 Cal.4th 468, 540-541.) This is particularly true where the only indication of possible misconduct was embodied in an e-mail message. Thus, defense counsel acted reasonably by petitioning the superior court for an order disclosing personal juror information “in order that counsel may prepare a motion for new trial based on jury misconduct.” Counsel’s handling of the matter did not fall below an objective standard of reasonableness under prevailing professional norms. (Ibid.)
We must also note one procedural consideration of overriding importance. At the time appellant filed his petition for juror identifying information and motion for new trial, he apparently did not have a copy of the September 25, 2008, e-mail of the complaining juror. Moreover, in deference to the court’s previous orders, appellant’s trial counsel had not spoken to the juror who sent the e-mail between the time the verdicts were rendered and the January 9, 2009, hearing date. At the latter hearing, the court directed counsel: “No contact is to be made with the juror unless and until this court orders that.” Given the restrictions imposed by the trial court, appellant and his counsel arguably had no informed, viable basis for seeking an evidentiary hearing or new trial at that point in the proceedings.
As we will explain, sections 206 and 237 provide an orderly procedure for securing personal identifying juror information preparatory to a new trial motion. (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) Defense counsel’s choice of one accepted procedural avenue over several others does not constitute ineffective assistance. To hold otherwise in this case would be to essentially condemn counsel for seeking to make a rational and informed decision on strategy and tactics based upon thorough investigation of the law and facts. (In re Thomas, supra, 37 Cal.4th at p. 1258.)
I. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING ON APPELLANT’S MOTION FOR DISCLOSURE OF CONFIDENTIAL JUROR INFORMATION
Appellant contends the trial court abused its discretion by refusing to order the release of juror information upon his written petition.
A. Sections 206 and 237
“A criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict.” (People v. Cox (1991) 53 Cal.3d 618, 698-699, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Cox).) “ ‘[S]trong public policies protect discharged jurors from improperly intrusive conduct in all cases.’ [Citations.] The uncontrolled invasion of juror privacy following completion of service on a jury is, moreover, a substantial threat to the administration of justice. [Citations.] These concerns, however, must be balanced with the equally weighty public policy that criminal defendants are entitled to jury verdicts untainted by prejudicial juror misconduct. [Citations.]” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092.) Sections 206 and 237 govern petitions for disclosure of juror identifying information, which information is automatically sealed upon the recording of a verdict in a criminal case. (§ 237, subd. (a)(2).)
Section 237 states in relevant part:
“(a)(2) Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors … consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section. [¶] … [¶]
“(b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall, by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.”
We note the January 30, 2009, minute order in this case does not comply with the mandatory requirements of section 237, subdivision (b). The court’s order simply states: “Written motion by Defense requesting Disclosing Personal Juror Information … Motion denied.” The court did not, as statutorily required, set forth by minute order “the reasons and … express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” Although the trial court denied the defense motion on the record, the reporter’s transcript of the January 30, 2009, hearing did not expressly reflect findings of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.
Section 206, subdivision (g) states:
“Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.”
After a jury’s verdict is recorded in a criminal proceeding, the court’s record is sealed, meaning all personal juror identifying information is extracted or removed from the court record. (§ 237, subd. (a)(2)-(3).) A defendant’s counsel may petition the court for access to personal juror identifying information so that counsel can communicate with jurors to develop a motion for new trial or any other lawful purposes. (§ 206, subd. (g).) The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information. (§ 237, subd. (b).)
Section 237 further states that if a hearing is set on the matter, the court “shall provide notice to each affected former juror” by specific methods, and “[a]ny affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. A former juror who wishes to appear at the hearing to oppose the unsealing of the personal juror identifying information may request the court to close the hearing in order to protect the former juror’s anonymity.” (§ 237, subd. (c).)
After the hearing, “the records shall be made available as requested in the petition, unless a former juror’s protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner.” (§ 237, subd. (d).)
Subject to these disclosure protections, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that juror misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to prove the court with adequate information to rule on a motion for new trial. Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of the jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information. (People v. Carrasco (2008) 163 Cal.App.4th 978, 989-990, citing People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552.)
Denial of a petition under section 237 is reviewed under the deferential abuse of discretion standard. (People v. Santos (2007) 147 Cal.App.4th 965, 978.) Although variously phrased in various decisions (see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977), this standard “asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts. [Citations.]” (People v. Williams (1998) 17 Cal.4th 148, 162.)
B. Juror Misconduct and Evidence Code section 1150
To demonstrate good cause for purposes of section 237, a defendant must set forth “a sufficient showing to support a reasonable belief that jury misconduct occurred.…” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.) The misconduct alleged must be “ ‘of such a character as is likely to have influenced the verdict improperly’ [citation].…” (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.)
Evidence Code section 1150 applies “to postverdict inquiries into how error or misconduct had affected the juror in reaching the verdict. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 771, 838.) It states:
“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to 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. No evidence is admissible to show 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.” (Evid. Code, § 1150, subd. (a).)
“An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘ “capable and willing to decide the case solely on the evidence before it” ’ [citations]. [¶] However, with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘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 ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror … or concerning the mental processes by which [the verdict] was determined.’ [Citations.] Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (In re Hamilton (1999) 20 Cal.4th 273, 293-294, italics in original.)
Evidence Code section 1150 “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.…’ [Citation.] ‘This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.’ [Citations.]” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
“Although Evidence Code section 1150, subdivision (a) permits a court to receive otherwise admissible evidence about matters that may have influenced a verdict improperly, it limits the evidence as follows: ‘No evidence is admissible to show 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.’ Thus, ‘when 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.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 388-389 (Lewis).)
“As an exception, Evidence Code section 1150, subdivision (a) does not prohibit admitting a statement that reflects a juror’s reasoning processes if the statement itself amounts to juror misconduct, comparable to an objective fact such as reading a novel during trial, or consulting an outside attorney for advice on law relevant to the case. [Citation.]” (Lewis, supra, 26 Cal.4th 334, 389, italics added.) “In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when 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.’ [Citation.]” (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)
C. Analysis
We find the court abused its discretion when it summarily denied appellant’s motion for disclosure under section 237. While the motion may have been based on the hearsay evidence of the juror’s e-mail, that e-mail was sent to the trial judge and there was no question as to the very existence of the e-mail and its contents. The e-mail related numerous statements relating to that juror’s mental and deliberative process, but it raised disturbing inferences that the juror may have been subject to misconduct committed by other jurors. While evidence of what a juror “felt” is not competent to impeach a verdict (People v. Lindberg (2008) 45 Cal.4th 1, 53), the juror’s e-mail raised the inference that other jurors may have made inappropriate statements in the jury room that may have constituted misconduct.
In our view, the e-mail in the instant case presented the trial court with information that misconduct may have occurred during the deliberations of the jury. Yet, the trial court did not find a basis to go “any further” pursuant to Evidence Code section 1150. As a matter of procedure, Evidence Code section 1150, subdivision (a) provides that “otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring within or without the jury room.…” Hearsay evidence is inadmissible absent an applicable exception. (Evid. Code, § 1200, subd. (b).) However, the technical requirements of Evidence Code section 1150 did not end the responsibilities of the trial court, particularly where the trial court’s ruling regarding juror contact effectively precluded the appellant from securing admissible evidence as to possible juror misconduct.
A court does not have inherent power to act in a manner that is prohibited by statute. (Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097.) While Evidence Code section 1150 requires “otherwise admissible evidence, ” that statute does not limit the discretion of the court to find “a prima facie showing of good cause” for release of personal juror identifying information under section 237, subdivision (b).
Section 237, subdivision (b) does not expressly define or delineate the critical phrase “prima facie showing of good cause.” In enacting sections 206 and 237, “ ‘the Legislature was trying to close the door to access of juror addresses and telephone numbers to the extent that it could--not open it to information on demand.’ ” (People v. Granish (1996) 41 Cal.App.4th 1117, 1126, quoting Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1209.) Nevertheless, a defendant or defense counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror information “for the purpose of developing a motion for new trial or any other lawful purpose.” (§§ 206, subd. (g), 237.) The phrase “prima facie showing” has been analogized to “ ‘a sufficient showing to support a reasonable belief that jury misconduct occurred.…’ ” (People v. Carrasco, supra, 163 Cal.App.4th at p. 990, quoting People v. Rhodes, supra, 212 Cal.App.3d at p. 551-552.) The Supreme Court has found no state or federal authority requiring “absolute and impenetrable secrecy for jury deliberations in the face of juror misconduct.” (People v. Engelman (2002)28 Cal.4th 436, 443.)
The juror’s e-mail states the her fellow jurors were “instantly enraged at her, ” displayed “very angry” and “hostile pressure” toward her, she was in a “hostile/angry environment, ” and the other jurors “attack[ed]” her with “hostility based on slurs, comments and physical movements/gestures by other jurors.” While these statements do not specify the actual words spoken and do not describe the physical conduct engaged in by the other jurors about which she complains, the allegations warrant further investigation because they suggest that other jurors may have committed misconduct directed toward this particular juror.
We believe appellant satisfied the statute’s requirement for a prima facie showing of good cause for the release of personal juror identifying information. (§ 237, subd. (b).) Under the circumstances, the trial court should have exercised its discretion under section 237 by setting appellant’s petition for hearing and following the statute’s strict procedural and notification requirements. (§ 237, subd. (c).)
We are aware that Evidence Code section 1150 has been interpreted to establish a relatively stringent standard to prove juror misconduct. (See, e.g., People v. Harris (2008) 43 Cal.4th 1269, 1300-1304; Cox, supra, 53 Cal.3d 618, 693-695; People v. Keenan (1988) 46 Cal.3d 478, 539-541 (Keenan); Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1128.) For example, the defendant in Cox moved for a new trial based on affidavits from jurors which declared that “ ‘jurors were told not to smoke at the table while they were deliberating because the nonsmoking jurors were bothered by it; and that they refused to follow that order and did smoke causing some jurors to be intimidated and change their votes.’ ” (Cox, supra, 53 Cal.3d at p. 693.) The affidavits also declared the jury was deadlocked during the penalty phase, “ ‘and one of the jurors for death told the life jurors that if they held out the jury would be locked up for three weeks; and this influenced some of the jurors to change their votes.’ ” (Ibid.)
Cox rejected allegations of misconduct “predicated on the intimidation of nonsmoking jurors and the expressed desire of some jurors to resolve the penalty and avoid prolonged deliberations, to the extent they clearly implicate ‘fellow jurors’ mental processes or reasons for assent or dissent.’ [Citation.]” (Cox, supra, 53 Cal.3d at pp. 694-695.)
“[W]hile the conduct of jurors disregarding an agreement on smoking or complaining about the pace of deliberations may be scrutinized, the effect of this conduct on subsequent votes may not be. When we exclude the latter, the former, standing alone, does not implicate juror misconduct; nor does the record otherwise demonstrate that some members of the jury were prevented from freely expressing their views because of these two circumstances. Accordingly, these allegations would not sustain defendant’s motion for a new trial. [Citation.]” (Cox, supra, 53 Cal.3d at p. 695.)
In Keenan, defendant moved for a new trial on the grounds that a juror engaged in a diatribe against another juror. A defense investigator reported that Juror Walker said he lost his temper during penalty phase deliberations, pointed his finger at an elderly female juror who was the lone holdout against the death penalty, and said, “ ‘If you make this all for nothing, if you say we sat here for nothing, I'll kill you and there’ll be another defendant out there--it’ll be me.’ ” Juror Walker refused to sign a declaration and the court refused to order him to appear at an evidentiary hearing. Two other jurors signed declarations that Juror Walker repeatedly shouted at the elderly juror that she should vote for death, and the woman began crying and shaking and became ill in the bathroom. Juror Walker subsequently signed a declaration for the prosecution, and denied that he made his prior statement to the defense investigator and denied that he threatened or yelled at the elderly juror. (Keenan, supra, 46 Cal.3d at pp. 539-541.)
Keenan held that even if the defense had introduced admissible evidence about the alleged juror misconduct, Juror Walker’s conduct “was insufficient to impeach the penalty verdict.” (Keenan, supra, 46 Cal.3d at p. 539.) “Even if the described ‘threat’ occurred, we must conclude as a matter of law that it was not prejudicial misconduct which impeaches the verdict. The outburst described in [the defense investigator’s] declarations was particularly harsh and inappropriate, but as the trial court suggested, no reasonable juror could have taken it literally. Manifestly, the alleged ‘death threat’ was but an expression of frustration, temper, and strong conviction against the contrary views of another panelist.” (Id. at p. 541.)
While we acknowledge the holdings in Cox and Keenan, we further note that the court in this case was not confronted with a motion for new trial based on juror misconduct. Instead, the court was called upon to rule on a motion for disclosure of juror identification information pursuant to section 237. Appellant’s motion satisfied the statutory burden for disclosure based on the inferences that arise from the juror’s e-mail, and the court was obliged to permit further investigation of the juror’s allegations.
We find that appellant has satisfied his burden to obtain disclosure of the contact information for the juror who sent the e-mail to the trial judge. Upon further proceedings on remand, the court may consider whether defendant has also satisfied his burden for disclosure of the contact information for other jurors in this case. In reaching this conclusion, however, we do not pass on the potential merits of a motion for new trial based on allegations of juror misconduct which might be based on sworn affidavits, declarations, or testimony consistent with the unsworn statements in the juror’s e-mail.
D. Remedy
Although some time has elapsed since the rendition of the verdict, and while we recognize the verdict is supported by substantial evidence, the constitutional guarantee of the right to a fair trial constrains us to conditionally reverse appellant’s convictions and remand this matter for further proceedings as authorized by Penal Code section 1260, which states:
“The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
The Supreme Court recently approved a conditional reversal with directions in the context of Pitchess discovery, stating:
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
“ ‘ “[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand.’ [Citation.] In other words, “when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made.” [Citaiton.]’ ” (People v. Gaines (2009) 46 Cal.4th 172, 180 (Gaines).)
We therefore conditionally reverse appellant’s convictions, and remand the matter for further appropriate proceedings consistent with Code of Civil Procedure section 237. Upon issuance of the remittitur in this appeal and consistent with Gaines, the trial court shall grant appellant a reasonable period of time within which to retain counsel to represent him in further proceedings in this matter. In the event appellant cannot afford retained counsel, the superior court shall expeditiously appoint counsel to represent appellant.
Upon the retention or appointment of counsel for appellant, the superior court shall set the matter for a hearing under Code of Civil Procedure section 237. In setting such a hearing, the trial court shall comply with all procedural aspects of section 237, including notification to the juror(s) in question of the right to refuse disclosure of contact information, and further notify jurors of the court’s authority to use juror code numbers, rather than names, at the hearing. In conducting such a hearing, the trial court is further empowered to restrict counsel and their respective agents and employees from disclosing and/or divulging juror identities and identifying information to the appellant or to others (§ 237, subd. (d).)
We again note the juror who sent the e-mail, or other jurors the court might find relevant to this matter, may protest the disclosure of his or her contact information to the parties, and the court may sustain that protest. (§ 237, subd. (d).) In that event, the court “must heed the wishes of reluctant jurors to bar disclosure of their personal identifying information” to the parties, attorneys, investigators, and members of the general public. (People v. Tuggles (2009) 179 Cal.App.4th 339, 386 (Tuggles).) “However, … sections 206 and 237 do not infringe upon the trial courts’ inherent power to investigate strong indicia of juror misconduct. [Citation.] Jurors may not thwart an investigation of misconduct by the court itself. The trial court has discretion to subpoena even reluctant jurors when necessary to determine whether the fact finding process went awry. [Citation.] … The duty to protect jurors from overzealous attorneys and investigators does not require an abdication of the court’s obligation to ensure that the jury trial process is free from misconduct.” (Tuggles, supra, 179 Cal.App.4th at p. 387.) Accordingly, the court has the power to order jurors to attend an evidentiary hearing on this matter should they exercise their statutory rights under section 237 and decline to discuss the case with counsel. (Ibid.)
If, as a result of these proceedings, appellant does not file a motion for new trial based on juror misconduct within 60 days from the date of issuance of the remittitur in this appeal, or if appellant files such a motion and the court denies it, the superior court shall reinstate the conviction.
If appellant files a motion for new trial based on juror misconduct and the court grants the motion, the court shall order further appropriate proceedings.
We have no doubt the trial court sought to do the right thing under unique and trying circumstances immediately after the verdicts were rendered. Nevertheless, we take these steps to assure and uphold the fairness of the process in appellant’s trial. (People v. Mooc (2001) 26 Cal.4th 1216, 1227; Brady v. Maryland (1963) 373 U.S. 83, 87.)
We again note that we do not address the potential merits of a new trial motion based on the statements contained in the juror’s e-mail. For purposes of remand, we further note that “ ‘when a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations.’ [Citation.] However, in conducting that hearing, the trial court ‘must take great care not to overstep the boundaries set forth in Evidence Code section 1150.’ ” (People v. Collins (2010) 49 Cal.4th 175, 249.)
II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE INSTRUCTIONAL ERROR
Appellant contends the trial court misinstructed the jury on the concept of reasonable doubt and thereby (a) committed reversible error in violation of the Fifth and Fourteenth Amendments to the United States Constitution and (b) engaged in coercion of the jury. Appellant specifically argues the trial court violated the Constitution and coerced the jurors when it advised that “proof beyond a reasonable doubt is proof that leaves you individually and then unanimously as a collective mind in an abiding conviction that the charge is true.”
Appellant addresses these matters as two separate issues in his opening brief on appeal. Because these points rest on the same procedural history, we will treat them as subpoints of the same issue on appeal.
A. Procedural History
During deliberations, the jurors asked for the opportunity to directly address the court. The jury foreperson advised the judge that the jury needed “some guidance.” Upon questioning the foreperson, the court learned the jury had taken four “ballots, ” that there had been some “movement in the count, ” but that the jurors were unable to reach a unanimous verdict. The court asked whether it could provide some further instruction that might assist the jurors in their deliberations. The foreperson responded, “The definition of reasonable doubt … a couple of jurors are having a little difficulty understanding that exactly.” The court replied:
“Well, the first thing I’m going to do is point out that there is no numerical quantification that you can attach to that concept, okay. It is a decision that each of you must reach individually and then agree upon unanimously. So, essentially, it begins as an individual decision-making process and it something that experts and lawyers and judges have tried to phrase throughout the course of time in our legal system. And the language that is provided in the instruction is essentially the best version that all of the collective wisdom in our system of jurisprudence can offer.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. It need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.
“Now, unless you’re satisfied that the evidence that was received throughout the entire trial proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. Once again, proof beyond a reasonable doubt is proof that leaves you individually and then unanimously as a collective mind in an abiding conviction that the charge is true.
“It’s nothing that I can give you a formula for, but in order to reach a decision on the case you must be satisfied individually and then all agree that with an abiding conviction you are satisfied proof beyond a reasonable doubt has been established.”
B. Alleged Misinstruction
Appellant argues the trial court misstated reasonable doubt when it referred to the jurors agreeing “unanimously as a collective mind in an abiding conviction that the charge is true.” He contends:
“It suggested that jurors were to give up their view that the case had not been proven beyond a reasonable doubt and compromise as they functioned as a ‘collective mind.’ The comment that ‘it beings as an individual decisionmaking process’ suggests that the requirement that each juror be individually satisfied with their decision ultimately gives way to the ‘collective mind.’ The court’s instructions suggested that an individual juror’s views are superseded by the will of the jury as a collective unit. This is contrary to law. While jurors are required to deliberate, they are not required to bend to the will of the majority of jurors. Jury deliberation is a way to help each juror make up their individual mind.”
In considering whether the trial court properly instructed the jury on the law governing a case, the appellate court must consider the instructions as a whole, not in isolation. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The court assumes that jurors are intelligent persons capable of understanding and correlating all of the instructions that they are given. (People v. Ayers (2005) 125 Cal.App.4th 988, 997.)
In the instant case, appellant characterizes a single phrase uttered by the court–“unanimously as a collective mind”–as a misdescription of the reasonable doubt standard. He maintains the court committed reversible error per se. However, a careful consideration of the trial court’s entire response to the jury belies appellant’s contention. Although the court did briefly utter the challenged phrase, the court went on to reinstruct the jury in CALCRIM No. 220. In concluding his remarks, the court observed: “I will do my very best to try to offer any instructional clarifications I can, but again what you have in writing is essentially the best efforts that our system has produced in terms of trying to guide you in your deliberative process.” CALCRIM No. 3550, as previously read to the jury, stated in pertinent part: “Each of you must decide the case for yourself, but only after you have discussed the evidence with your fellow jurors.… Your verdict on the sole count of the Information and any special findings contained therein must be unanimous. This means that to return a verdict or make a special finding all of you must agree to it.”
The trial court’s comments to the jury reflected the law embodied in CALCRIM No. 3550, i.e., that each juror must decide the case for himself or herself after discussion with fellow jurors and that any verdict or special findings must rendered on a unanimous basis. The trial court’s brief mention of “unanimously as a collective mind” did not comprise a reversible misstatement of the law of reasonable when considered in light of the entirety of the jury instructions and the court’s comments in response to the jury’s questions. Reversible error did not occur.
C. Alleged Coercion
Appellant also submits the court’s phrase “unanimously as a collective mind” urged the jury to compromise in order to arrive at a verdict, thus constituting prejudicial error per se.
Appellant’s contention is misplaced. The phrase, by itself, did not expressly or implicitly displace the jury’s independent judgment or suggest that jurors engage in compromise and expediency during their deliberations. If anything, the court’s isolated comment was nothing more than a shorthand reference to CALCRIM No. 3550, which states: “Your verdict on the sole count of the Information and any special findings contained therein must be unanimous. This means that to return a verdict or make a special finding all of you must agree to it.”
When a jury reaches an impasse in deliberations, a trial court must exercise great care when ordering further deliberations. The court may order the jurors to continue their deliberations and provide them with instructional guidance. However, the court must exercise its power without displacing the jury’s independent judgment in favor of considerations of compromise and expediency. The question of coercion is dependent upon the facts and circumstances each case. (People v. Sandoval (1992) 4 Cal.4th 155, 195-196, citing People v. Breaux (1991) 1 Cal.4th 281, 319.)
To determine whether an instruction is coercive, a reviewing court must consider whether it imposes such pressure on jurors to reach a verdict that the appellate court is uncertain of the accuracy and integrity of the jury’s stated conclusion. This requires an assessment of the potential effect of a given instruction on the fact-finding process rather than an inquiry into the volitional quality of a specific jury verdict. (People v Gainer (1977) 19 Cal.3d 835, 849-850.)
The trial court’s comments and multiple readings of CALCRIM No. 220 did not encourage jurors to abandon their truly held beliefs and did not constitute coercion. No instructional error occurred.
III. THE TRIAL COURT COMMITTED SENTENCING ERROR BY FAILING TO STAY THE PENAL CODE SECTION 12022.7, SUBDIVISION (A) ENHANCEMENT
Appellant contends and the respondent concedes the Penal Code section 12022.7, subdivision (a) enhancement should be stayed.
Respondent explains:
“Here, once the court imposed the enhancement pursuant to [Penal Code] section 12022.53, subdivision (d) it could not impose an additional three years pursuant to [Penal Code] section 12022.7, subdivision (a) and order it to be served consecutive. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [after trial court imposes punishment for the [Penal Code] section 12022.53 firearm enhancement with the longest term of imprisonment, remaining enhancement that have been found true but may not be imposed under [Penal Code] section 12022.53, subdivision (f) must be imposed and then stayed.].)”
In the event the judgment of conviction is reinstated, the superior court is directed to stay the Penal Code, section 12022.7, subdivision (a) enhancement, to amend the abstract of judgment to reflect the stay, and to issue certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment of conviction is conditionally reversed and the matter remanded for further appropriate proceedings consistent with this opinion.
If, as a result of these proceedings, appellant does not file a motion for new trial based on juror misconduct within 60 days from the date of issuance of the remittitur in this appeal, or appellant files such a motion and the court denies it, the superior court shall reinstate the judgment of conviction.
In the event the judgment of conviction is reinstated, the superior court is directed to stay the Penal Code section 12022.7, subdivision (a) enhancement, to amend the abstract of judgment to reflect the stay, and to issue certified copies of the amended abstract to all appropriate parties and entities.
WE CONCUR: KANE, Acting P.J., DETJEN, J.