Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. TA086468, Eleanor J. Hunter, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
A jury found Eric Alberto Santos guilty of second degree murder, with findings that he personally used a firearm, personally discharged a firearm causing great bodily injury, and committed the murder for the benefit of a criminal street gang. The trial court sentenced Santos to state prison for an aggregate term of 40 years to life. We affirm.
FACTS
During the evening of September 6, 2006, Victor Gonzalez and George Machain (the murder victim), in their roles as sales managers for the Los Angeles Times, drove in Gonzalez’s sports utility vehicle to the City of Lynwood with an assistant sales manager, Javier Rios, and a group of door-to-door sales associates. At about 8:00 p.m., defendant Santos approached one of the sales workers, Maritza Hernandez, as she was trying to sell subscriptions on Louise Street, and began talking to her. During the conversation, Santos took a handgun out of his pocket and showed it to Hernandez. While Santos and Maritza were talking, a Honda and a PT Cruiser parked nearby. A short time later, Gonzalez drove into the area to pick up Hernandez. He pulled his SUV behind the Honda and PT Cruiser. Machain was sitting in the front passenger seat of Gonzalez’s vehicle, and Rios was sitting in the back seat.
When Maritza told Santos that she was leaving, Santos yelled in the direction of the Honda and PT Cruiser, “All of you guys come out, ” and then walked up to the passenger side of Gonzalez’s vehicle, where he asked Machain, “Where are you from?” At least five males, some with guns, got out of the Honda and PT Cruiser and surrounded Gonzalez’s vehicle. As Hernandez was getting into Gonzalez’s vehicle, Machain told her, “Mari, come inside, don’t worry, I know them.” Meanwhile, Santos and another male continued asking, “Where are you from?” Gonzalez and Rios said they were not from anywhere. Then, as it appeared that Machain was about to say something, Santos shot Machaim once in the head.
Police arrested Santos later that evening after he drove a Honda through a red light without stopping, then drove away from an attempted traffic stop, lost control of the car, and then tried to flee on foot. Santos was caught when he tried to climb over a fence, but lost his balance. Santos dropped a handgun as he lost his balance going over the fence. A firearms expert later determined that the gun dropped by Santos had been used to fire the bullet removed from George Machaim’s head.
In April 2007, the People filed an information charging Santos with murder, with the special allegations that he personally used a firearm, personally discharged a firearm causing great bodily injury and death, and that he committed the murder for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a); 12022.53, subds. (b), (c) & (d); 186.22, subd. (b)(1)(C).) At trial in May 2008, the People presented evidence proving the facts summarized above.
Santos testified in his own defense. According to Santos, happenstance had placed him on Louise Street, where he saw Hernandez, and asked her if she was lost, and started talking to her. While they were talking, Gonzalez’s vehicle drove up, and Santos thought Machain said something to him. As Santos stepped closer to Gonzalez’s vehicle to hear what Machain was saying, Machain called out the name of a Compton gang, prompting Santos to turn, and start walking away. Santos testified he had heard a clicking sound as he was walking away, looked back, and saw Machain holding something that looked like a gun. Santos maintained that he took out his own gun, which he had been carrying in his pocket for about a week for “protection.” Santos then shot Machain because he thought Machain was about to shoot first.
The prosecution case had also included evidence regarding the Young Crowd gang, and Santos’s membership in the gang, all as part of proof of the gang benefit allegation. The prosecution’s gang evidence is not material to Santos’s current appeal.
The trial court instructed the jury on premeditated murder, second degree murder, voluntary manslaughter based on imperfect self-defense, involuntary manslaughter with-out intent to kill, and justified killing in self-defense. The jury began its deliberations at 11:00 a.m., on Wednesday, May 14, 2008.
On that same afternoon, the jury requested read back of the testimony of eyewitnesses Victor Gonzalez and Maritza Hernandez. At 10:10 a.m., on Thursday, May 15, the jury submitted a note to the court: “We need help with the degree of first and second degree murder and provocation.” The court responded to the note by explaining to the jurors that it had read part of an instruction which it should have deleted, and then re-instructing the jury with an edited form of CALCRIM No. 522 which read as follows: “Provocation may reduce a murder of first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.”
At 2:25 p.m., on Thursday, May 15, the jury submitted a second note to the trial court: “We agree on the murder charge, but cannot agree on the degree of murder.” After talking to the jury, and hearing from the foremen that there was movement, the court directed the jurors to resume their deliberations. Fifteen minutes later, the jury submitted a third note to the court: “Can the court please clarify or be more specific on how to analyze deliberation and premeditation.” At that point, the court re-instructed the jury with CALCRIM No. 8.20, and, with the agreement of counsel, the prosecution and defense presented further argument.
At 2:10 p.m., on Friday, May 16, 2008, the jury submitted a fourth note to the trial court: “Your Honor, we have agreed to disagree as to first and second degree. I don’t see any reasonable probability our present position changing. I can say with reasonable certainty this jury is deadlocked!!!” During an ensuing discussion between counsel and the court, the prosecutor stated that the People would withdraw the charge of premeditated murder, and, shortly thereafter, the court instructed the jury to resume deliberations without considering first degree murder. At 3:55 p.m., the jury resumed deliberating. At 4:10 p.m., on Friday, May 16, the jury announced it had reached a verdict. Shortly thereafter, the jury returned a verdict convicting Santos of second degree murder, with findings that he personally discharged a firearm, and that he personally discharged a firearm causing great bodily injury and death, and that he committed the murder for the benefit of a criminal street gang.
On July 29, 2008, Santos filed a motion for release of juror contact information in which he argued that certain facts had come to light justifying a defense investigation into possible juror misconduct during the jury’s deliberations. According to the motion, Santos’s counsel had then recently learned that one of the jurors had said he wanted the death penalty during deliberations, and had indicated that he had done research on the death penalty. On August 8, 2008, the trial court heard argument on the motion for juror contact information, and denied the motion.
On August 14, 2008, Santos filed a motion for a new trial on the grounds of juror misconduct, largely restating his claims and argument regarding the juror who discussed the death penalty during deliberations. On August 15, 2008, the trial court denied Santos’s motion for a new trial, and then sentenced Santos as follows: 15 years to life for murder, plus 25 years to life for discharging a firearm and causing death; the court stayed sentencing under Penal Code section 654 on the gang enhancement and the firearm use findings.
DISCUSSION
I. The Petition For Juror Information
Santos contends the trial court’s decision to deny his motion for disclosure of the jurors’ personal identifying information requires reversal of his murder conviction or that we direct the trial court to grant the motion. We have not been persuaded by Santos’s argument that either remedy is warranted.
Access to jurors’ personal identifying information is controlled by the Trial Jury Selection and Management Act. (See Code Civ. Proc., § 190 et seq.) Section 206, subdivision (g), provides: “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....”
All further section references are to the Code of Civil Procedure.
To demonstrate good cause for the release of juror identification information pursuant to section 237, subdivision (b), a defendant must “set[] forth a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; accord People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321, fn. 8 (Jefflo).) Furthermore, the misconduct alleged must be “ ‘of such a character as is likely to have influenced the verdict improperly.’ ” (Jefflo, supra, at p. 1322.) A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “ ‘fishing expedition[]’ by parties hoping to uncover information to invalidate the jury’s verdict.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.)
We review the trial court’s decision to deny Santos’ motion for the disclosure of jurors’ personal identifying information for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.) Under the abuse of discretion standard, we will not disturb the trial court’s ruling in the absence of a showing by Santos that the court exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Santos’ motion for the disclosure of the jurors’ personal indentifying information included a declaration from his trial attorney, which alleged that during deliberations, Juror No. 5 indicated he had researched the issue of the death penalty and thought it was the appropriate penalty for the defendant. He alleged Juror No. 5 was strong willed, imposing and intimidating. Further, that certain jurors conferred separately with Juror No. 5 and not as a group. Trial counsel indicated he needed the juror identifying information so he could explore this issue with the other jurors to determine whether his client had been prejudiced by Juror No. 5’s conduct.
The trial court denied Santos’ petition for the disclosure of jurors’ personal identifying information. While the court acknowledged that it is misconduct for a juror to conduct outside research, it determined that it could not have prejudiced this case, given the unique way the jury deliberations took place. More specifically, the court stated:
“THE COURT:... I keep on going into [the] particular facts because the notes from the jury almost act as a road map with regard to what they were doing and what they were confronted with. [¶] This was not a jury that just rolled over to this other juror’s strong will. First of all, obviously they were looking at all the options, at least [on] the 15th of May when I allowed you all to address the concerns that they had. [¶] And th[en] came... a note [at 10:00 a.m. on May 15th:] [¶] ‘We need help with the degree, with the degree of first and second and provocation.’
“[DEFENSE COUNSEL]: Okay. And provocation. That’s in there.
“THE COURT: Right.... [¶] And then I believe... that I allowed you to reargue and address those concerns. [¶] And then the jury came back at 2:25 and indicated: ‘We agree on the murder charge but can’t agree on the degree of murder.’ [¶] And I sent them back to continue to deliberate and they were split. I think they were almost split down the middle. [¶] Then again: [¶] ‘Can you clarify or be more specific on how to analyze deliberation and premeditation.’ [¶] That was another note that came out at 3:15 on [May] 15th.... [¶] And then finally on [May] 16th at 2:10, they gave a note: [¶] ‘Your Honor, we have agreed to disagree as to first and second degree. I don’t see with any reasonable probability our present position changing. I can say with reasonable certainty this jury is deadlocked.’
“And then I sent them back. So that even wasn’t it. They were again deadlocked between first and second. And then they asked for the charts, I’m sorry, with regard to the degree of first and second that the DA used in the closing. I said no. [¶] And then subsequent to that, [the People] made a tactical decision to take the first degree option off the table. And the jury was just left with second.
“So that is how, so it wasn’t just a brief period of time where they thought about this. This was a jury that worked, that deliberated. They were vocal. And the reason I can say is that, albeit we can’t hear what they’re saying back there, but there were definitely voices raised back there.
“And the fact that it remained hung between first and second up until the People decided to take the first off, we’re not speculating with regard to that.
“And so again, if it was a different situation, where if this was a death penalty case and they did come back death or if this was a case where it came back first degree, which they didn’t, or if perhaps we didn’t have these notes to kind of see where the jury was, it would be a different scenario.
“But I have to kind of deal with the four corners of this case and that’s what makes this case so unique. I have to say it does make it unique because I agree with you that a juror going out there and doing research on [the] death penalty and voicing he thinks [the defendant] deserves the death penalty –– at first blush, you think you can’t do that.
“But then that’s why [the prosecutor] concedes [the] point.... Then you have to look at what impact did it have on the verdict.
“And even by the declaration of the foreperson juror number 10, I don’t see that having an impact based on looking at the notes that were provided during the course of their deliberations.”
We decline to find that the trial court’s decision to deny Santos’s motion for the jurors’ personal identifying information to have been arbitrary, capricious or patently absurd. First, the trial court found that juror misconduct had occurred. In light of that finding, it was not unreasonable for the court to conclude there was little to gain from adding cumulative proof on the misconduct issue. Second, the court was correct that in light of the existence of misconduct, the issue became whether Santos was prejudiced. Finally, we find the court’s analysis of the prejudice factor to have been reasonable.
We agree with the trial court that the jury’s questions during deliberations provided a unique view into its process, leading to an end finding that no prejudice resulted from the juror’s wrong conduct. The juror’s notes show, without room for interpretation, that the jurors had focused their attention –– by early on the second day of deliberations –– on choosing between whether Santos was guilty of first or second degree murder. We see nothing in the record to support an inference that the jury may have been inclined to acquit Santos, or convict him of a manslaughter offense. First, the juror’s talk of the death penalty concerned a matter not even before the jury regardless of what anyone said about it. But even if we accept that it shows the juror was pushing his fellow jurors to return a first degree murder conviction, by returning a verdict of second degree murder the jury unquestionably rejected the juror’s tainted message.
We see nothing in the record of Santos’ trial, or in his motion for disclosure of the jurors’ identifying information, to support his proposition the juror’s misconduct may have caused the jurors to have abdicated their duty to consider whether Santos was guilty of voluntary manslaughter or involuntary manslaughter, or even not guilty. We are unpersuaded by Santos’s argument the juror’s message “was not so simplistic” as to encourage the jurors to find Santos guilty of first degree murder, but he was also sending a message to reject finding him not guilty of any crime. It’s all part of the same presentation, and Juror No. 5 was within his prerogative to do both: as a juror, he had a right to encourage both the rejection of a not guilty verdict, and the acceptance of a first degree murder conviction. The fault with Juror No. 5’s conduct was not that he took a position on, and talked about, what he considered to be the correct verdict, namely, first degree murder, but that he brought into his discussion extraneous materials, i.e., materials from outside the courtroom. With regard to that wrongdoing, the jury’s collective choice to return second degree murder verdict belies any suggestion that the jury was influenced by Juror No. 5’s information involving greater punishment for a greater crime.
Finally, we reject Santos’s argument that Juror No. 5’s comments show he was biased against Santos from before the trial began. A juror’s expressed belief that the punishment for a crime is too lenient does not, in and of itself show that the juror pre-judged whether the defendant had, in fact, committed the crime, or that the juror based his or her decision to find guilt on something other than the evidence at trial.
II. The Motion For New Trial
Santos contends the trial court’s decision to deny his motion for new trial must be reversed because Juror No. 5’s misconduct exhibited that he harbored an undisclosed bias which caused Santos’s trial to be fundamentally unfair. We disagree.
When a party moves for a new trial on the ground of juror misconduct, the trial court undertakes a three-step inquiry: First, the court must determine whether the facts supporting the motion are admissible, i.e., are they “objective facts, ” and not a reflection of the “subjective reasoning processes” of a juror. The court must determine whether the admissible facts establish misconduct. Where misconduct is established, a rebuttable presumption of prejudice arises, and the court must then determine whether the presumed prejudice is belied by the trial record. (See, e.g., People v. Perez (1992) 4 Cal.App.4th 893, 906-907; and see People v. Hollaway (1990) 50 Cal.3d 1098, 1108.) When a trial court finds that misconduct occurred, but no prejudice resulted, a reviewing court must independently review whether prejudice arose from the misconduct. (People v. Perez, supra, 4 Cal.App.4th at pp. 906-907.)
Santos’s motion for new trial mirrored his motion to disclose the jurors’ personal identifying information in that it also cited Juror No. 5’s misconduct in researching the death penalty, and sharing his research with his fellow jurors.
In the trial court, Santos asserted, the prosecutor conceded, and the trial court agree that Juror No. 5 engaged in conduct which constituted misconduct when he chose to take it upon himself to investigate the death penalty, and then to relay his findings to his fellow jurors. On appeal, Santos asserts, the People concede, and we agree that Juror No. 5’s actions constituted misconduct. Accordingly, our inquiry is limited to a review of the final step of the misconduct evaluation undertaken by the trial court –– that is, whether Juror No. 5’s actions prejudiced Santos.
For the reasons explained above, we agree with the trial court’s finding that no prejudice occurred. As the trial court explained, when the prosecutor “took the option of first degree [murder] off the table, ” the jury “still had all the other options there, ” and, by convicting Santos of second degree murder, the jury self-evidenced that Juror No. 5’s comments about the death penalty were accepted for what they were, namely irrelevant for purposes of deciding the case before them. There is nothing in the record to support an inference that the jury ever considered a lesser offense than murder.
DISPOSITION
The trial court’s post-conviction order denying Santos’s motion for disclosure of the jurors’ personal identifying information is affirmed. The trial court’s order denying Santos’s motion for new trial is affirmed.
We concur: RUBIN, J., GRIMES, J.