Opinion
2d Crim. No. B227646 Super. Ct. No. 2009026248
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. PETER HUDAK, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Ventura County)
Peter Hudak appeals his jury conviction and three year prison sentence for stalking (Pen. Code, § 646.9, subd. (a)) and vandalism (§ 594, subd. (b)(1)). Appellant claims that the stalking conviction is not supported by the evidence and the trial court abused its discretion in denying his posttrial motion to release confidential juror contact information. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Viewed in the light most favorable to the verdict, the evidence shows that appellant threatened to kill his wife, Elizabeth Hudak (Elizabeth), during a July 4, 2009 phone call. Appellant drove cross county in a Freightliner truck and, shortly after midnight on July 15, 2009, rammed his big-rig truck into the house where Elizabeth and their three children were sleeping.
Months earlier, appellant separated from Elizabeth and threatened to kill her if she did not take him back. Elizabeth filed a police report stating that appellant was threatening to cut "me up into little pieces" and "strangle me until my eyes glazed over. . . ."
On March 28 2009, appellant grabbed Elizabeth by the hair and pushed her into a Cadillac SRX outside her home. Elizabeth yelled for her son to call 911 and managed to escape. Appellant fled, phoned Elizabeth a few minutes later, and said: "You tell those cops that I have a gun."
In May 2009, Elizabeth and the children moved to Thousand Oaks to live with her boyfriend, Chris DeLuca (Chris).
On July 4, 2009, appellant called the house and accused Chris of "taking" his family. Appellant said that he was "coming for" Chris and would kill everyone including Elizabeth and the children. Elizabeth overheard the call and feared for her safety even though she had a restraining order. Appellant was screaming and said that "he was coming to kill my kids. That he was going to cut my head off. Then he was going to kill Chris's kids, and then he was going to kill Chris."
Appellant called eight more times that night but Elizabeth did not answer the phone.
On the evening of July 14, 2009, Chris and Elizabeth went out to dinner and returned home at about 11:00 o'clock. Shortly after midnight, appellant drove his orange Freightliner into a pickup parked outside the house. Appellant rammed the pickup and shoved it into the garage, causing structural damage to the house. Chris and Elizabeth heard a loud noise and felt the house shake, thinking it was an earthquake.
Chris saw the Freightliner back up and speed away. He was "100 percent positive it was appellant's vehicle." A neighbor (Larry McNutt), Chris's brother (Gary DeLuca), and Elizabeth also saw the Freightliner.
Appellant was arrested the next day after Chris and Elizabeth spotted the Freightliner parked outside a restaurant/bar in Marina Del Rey.
Motion For New Trial and Evidentiary Hearing
Eight days after the guilty verdict was entered, appellant filed a motion for new trial and a motion for a juror misconduct evidentiary hearing. (Code Civ. Proc., § 237, subd. (b).) The moving papers alleged that Juror 2 and Juror 12 told trial counsel and a law clerk that Juror 3 had "'something personal' going on outside of court that affected her ability to remain impartial." Juror 12 told the law clerk that the jury "had to take two breaks in order for Juror #3 to think about things and clear her head. . . . [W]hen the jurors were voting, Juror #3 paused for a long time before casting her vote and when she eventually did, she burst out into tears."
District Attorney Investigator Bob MacInnes was present when Jurors 2 and 12 spoke to appellant's trial attorney and law clerk. The other jurors had left the court house. Jurors 2 and 12 said that Juror 3 had a "personal issue/experience" but worked through it and "was able to be unbiased towards her duty as a juror." Jurors 2 and 12 did not say what the "personal issue" was or how it related to the case.
The trial court conducted an in camera hearing and questioned Juror 3. Finding no juror misconduct, the trial court denied the motion for new trial and denied appellant's request to release confidential juror information.
Release Of Confidential Juror Information
Where, as here, a criminal defendant moves for new trial based on allegations of jury misconduct, the trial court has the discretion to conduct an evidentiary hearing to determine the truth of the allegations. (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) The court may call the jurors as witnesses but must "take great care not to overstep the boundaries set forth in Evidence Code section 1150" which precludes inquiry into the jurors' thought processes. (Id., at p. p. 418.) An order denying a request to release confidential juror information is reviewed for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 604.)
Disclosure of confidential juror information is governed by Code of Civil Procedure sections 206 and 237. Following a verdict, a defendant may "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." (Code Civ. Proc., § 206(g).) Code of Civil Procedure section 237, subdivision (b) provides: "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 . . . ." Under Code of Civil Procedure sections 206 and 237, the trial judge acts as a gatekeeper of the jurors' personal information to prevent unwanted intrusion by the parties, counsel, or their representatives. (People v. Tuggles (2009) 179 Cal.App.4th 339, 386.)
Juror 3 testified that she disclosed, during jury selection, everything that might have impacted her ability to sit as a juror. Juror 3 denied there was "anything personal" going on in her life that affected her ability to be fair and impartial. Juror 3 stated that she was "not comfortable judging somebody else" and "felt it was personal" because she took a solemn oath to follow the law. During deliberations, Juror 3 told the other jurors that she was divorced, asked if any one else had been divorced, and discussed how, sometimes, during a divorce, "it goes back and forth, back and forth."
Appellant contends that the trial court erred in not calling Juror 12 to testify. Appellant waived the issue when he agreed, before the hearing, not to have Juror 12 testify. Based on Juror 3's testimony, the trial court reasonably concluded that appellant had not made a prima facie showing of juror misconduct. (People v. Hayes (1999) 21 Cal.4th 1211, 1256-1257.) Requiring other jurors to testify would have amounted to a " ' "fishing expedition" to search for possible misconduct . . . .' [Citation.]" (People v. Avila, supra, 38 Cal.4th at p. 604.)
Appellant asked the trial court to release confidential juror information so that appellant could "finish the investigation" on his own. We reject the argument that the court abused its discretion in denying the request. Appellant's supporting declaration was hearsay and refuted by Juror 3's testimony. " '[H]earsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct.' [Citation.] Aside from the hearsay problem, none of the declarations indicates when during [appellant's] trial the purported misconduct occurred." (People v. Avila, supra, 38 Cal. 4th at p. 605.) Speculation on how the jury might have arrived at its verdict does not establish good cause for the release of juror contact information. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
Appellant opines that Juror 3's divorce could have affected her ability to be impartial and claims that Juror 12 may have coerced Juror 3 to vote guilty. Juror 3 testified that "I may have not liked my decision, but it was my decision." "We made a decision the day before, and we had to wait until the morning. [¶] I slept on it. I felt much better about my decision. . . ." After the verdict was announced, the trial court polled the jury and each juror confirmed the verdict as his or hers. There is no evidence that that Juror 3 was coerced or that Juror 12 engaged in misconduct.
Appellant claims that Juror 3 discussed the case with Juror 12 outside the presence of the other jurors. Juror 3 testified that she and another juror talked about "divorce, per se" but did not discuss the case before deliberations. Appellant's trial attorney agreed that "[i]t's okay for a juror to talk about divorce. That wouldn't be a taboo subject."
Juror 3 was asked the following:
"THE COURT: [Y]ou've indicated to me, there was no particular personal incident or personal experience in your background that was in any way impacting your job here. You were just feeling the weight, I presume, of the important job that you had?
"TJO3: Right.
"THE COURT: I can't remember the name. There was actually a juror sitting where you're sitting right now, Juror No. 12. [¶] Did you speak with her or with anybody regarding any personal experience or incident?
"TJO3: The only thing that I know of that I said anything about was divorce, per se. [¶] I don't know who was sitting [t]here. I don't remember who that was either, but [it was] about divorce. That's the only thing.
"THE COURT: Something you were discussing the in the jury deliberation room?
"TJO3: Yeah. Because I had been divorced, I asked if anybody else had."
"THE COURT: Okay.
"TJO3: And I had expressed how sometimes it goes back and forth, back and forth.
"THE COURT: Were you discussing any of that type of thing outside the deliberation room?
"TJO3: I don't remember. Not that I know of. . . ."
Juror 3 considered jury duty to be a serious matter and said that the gravity of the case put "terrible pressure" on the jurors. Sitting in judgment on another person weighed on Juror 3 but she was able to follow the law, deliberate with the other jurors, and cast her vote. Juror 3 stated that "[i]t was my decision" and "[n]o one influenced me in my decision." This was confirmed by Jurors 2 and 12 who told counsel and the district attorney investigator that Juror 3 was able to put her "personal issue" aside and be fair and impartial.
Appellant asked the trial court to call all the jurors or, in the alternative, release the confidential juror information so that appellant could interview the jurors. The trial court found that it would be "a fishing expedition" and "there is no need to call in any additional jurors." Based on Juror 3's candid responses and the speculative nature of the alleged misconduct, the trial court did not abuse its discretion in denying appellant's request to further investigate.
Appellant argues that he has a constitutional right to access confidential juror information and conduct his own investigation. To grant that kind of power to a criminal defendant would open the door to juror harassment and damage the jury process and the administration of justice. (People v. Cox (1991) 53 Cal.3d 618, 699.) " '[S]trong public policies protect discharged jurors from improperly intrusive conduct in all cases.' [Citation.]" (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092.) "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, supra, 53 Cal.3d at pp. 698-699.)
Appellant was afforded an evidentiary hearing but failed to make a prima facie showing of juror misconduct. Juror 3's testimony was unrefuted and should, as a matter of law, put an end to the matter. (See e.g., People v. Granish (1996) 41 Cal.App.4th 1117, 1132.) Appellant cites no authority that he has a constitutional right to a second evidentiary hearing or right to interview all the other jurors to "finish the investigation."
The argument that appellant was denied the due process right to develop his motion for new trial is equally without merit. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1323.) "No one disputes the fundamental nature of the right to an impartial jury. . . . [Appellant, however,] is seeking to extend that concept beyond the time of the verdict, to a point at which all agree jurors are free to go about their business without being required to discuss deliberations with anyone." (People v. Santos (2007) 147 Cal.App.4th 965, 979.)
Substantial Evidence
Appellant claims that the stalking conviction is not supported by the evidence because there was no credible threat or pattern of conduct that placed Elizabeth in reasonable fear for her safety. (§ 646.9, subds. (a) & (g).) As in every sufficiency-of-the-evidence case, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. . . . The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The elements of stalking are (1) following or harassing the victim, and (2) making a credible threat, (3) with the intent to place the victim in reasonable fear for his or her safety or the safety of his or her immediate family. (§ 646.9, subd. (a); People v. Uecker (2009) 172 Cal.App.4th 583, 594.) The jury was instructed that "[a] credible threat may be made orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct." (CALCRIM 1301, emphasis added.)
It is uncontroverted that appellant called the house on July 4, 2009, and threatened to kill everyone. Elizabeth overheard the phone conversation and feared for her safety even though she had a restraining order. Appellant drove cross country over a span of 10 days, waited for Chris and Elizabeth to return home from dinner, and rammed his Freightliner into the house. The evidence clearly established a credible threat and pattern of malicious harassing conduct. (See e.g., People v. Uecker, supra, 172 Cal.App.4th at p. 594-595 [credible threat implied by defendant's verbal statements and conduct]; People v. Carron (1995) 37 Cal.App.4th 1230, 1234 [threatening phone calls and messages established pattern of harassing conduct].)
Appellant contends that the July 4, 2009 phone call was simply an angry outburst by "a sad, angry, and emotional man" who missed his children. The death threat was graphic and preceded by phone calls and text messages describing how appellant would kill Elizabeth. Appellant told a mutual friend (Lisa Perry) that he would harm Elizabeth if Elizabeth did not return his phone calls or take him back. After Perry warned Elizabeth, Elizabeth filed two police reports in March 2009. On April 21, 2009, Elizabeth got a restraining order but was not able to serve appellant. .
Appellant claims that the July 4, 2009 phone call was not a credible threat because he called from Connecticut. He argues that a verbal threat is not criminal unless it conveys to the person threatened an immediate prospect of execution. That is the rule for making a terrorist threat (§ 422) but not the crime of stalking (§ 646.9). The cases cited by appellant are inapposite and involve section 422 terrorist threat convictions. (People v. Mosley (2007) 155 Cal.App.4th 313, 324-326; People v. Martinez (1997) 53 Cal.App.4th 1212, 1220-1221; In re Ryan D. (2002) 100 Cal.App.4th 854, 860- 861.)
The magistrate dismissed two terrorist threat counts (§ 422) at the preliminary hearing because appellant was "physically unavailable to carry out the threat." Elizabeth and Chris believed that appellant was 3,000 miles away when he made the July 4, 2009 phone call.
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Section 646.9, subdivision (g) defines a credible threat as including, "[A] threat implied by a pattern of conduct. . . ." Stated another way, the threat need not be in words. "[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered. [Citation.]" (People v. Falck (1997) 52 Cal.App.4th 287, 298.) The test is whether the threat was "made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat." (§ 646.9, subd. (g).)
The prosecution did not have to prove that appellant had the ability to immediately execute the threat. (See e.g., People v. Norman (1999) 75 Cal.App.4th 1234, 1236-1237 [victim out of the country when harassing conduct occurred].) Had appellant made the phone call from jail, it would still be a credible threat. (See § 646.9, subd. (g) ["The present incarceration of a person making the threat shall not be a bar to prosecution under this section."].)
Elizabeth was scared, filed police reports in March 2009, and got a restraining order in April 2009. After appellant made the July 4, 2009 death threat, he drove cross country and rammed the house in the middle of the night while Elizabeth and the children were asleep. A credible threat may be implied by a pattern of conduct or a combination of statements and conduct. (People v. Uecker, supra, 172 Cal.App.4th at p. 594; see also People v. Falck, supra, 52 Cal.App.4th at p. 297.) Appellant's harassing conduct and July 4, 2009 phone call, when considered together, clearly establish a "credible threat" that would make any reasonable person fear for his or her safety.
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Brian J. Back, Judge
Superior Court County of Ventura
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.