Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA339860. Craig E. Veals, Judge.
Karyn H. Bucur, 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, Michael Keller and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Gabriel Ybarra appeals from the judgment entered upon his convictions by jury of two counts of making criminal threats (Pen. Code, § 422). Defendant admitted a prior serious felony conviction within the meaning of sections 667, subdivision (a)(1), 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). The trial court sentenced him to 12 years four months in state prison. Defendant contends that (1) the trial court erred in denying his motion for new trial made on the grounds that (a) the verdict was based on a theory of culpability not presented to the jury, (b) there was serious jury misconduct, and (c) the trial court failed to timely address a question submitted by the jury, relating to criminal liability; and (2) the trial court abused its discretion in denying his petition for access to juror information.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
Defendant’s relationship with Leslie Castellanos (Castellanos)
In January 2007, Castellanos, who lived with her 12-year-old daughter, N.G., met defendant when they were working at the Ambiente Nightclub in Alhambra. They became friendly, and, in January 2008, while they still worked together, they began an intimate dating relationship.
A month or so later, Castellanos told defendant that she no longer wanted to see him. Defendant did not want to stop seeing her, “wasn’t accepting it at first” and continued to contact her by text messages. At times, his behavior became aggressive. Castellanos continued to meet with defendant, though sometimes she would ignore his calls or not return his text messages, which seemed to upset him. He told her that they were going to talk “one way or another.”
At the end of February or beginning of March 2008, Castellanos asked defendant’s supervisor to transfer him to another location because he kept insisting on talking with her. He was transferred that same night. After the transfer, defendant would park in front of Castellanos’s house in the middle of the night, when she returned from work. He remained in the car, phoned her and asked her to come out. She did not.
On March 6 and 7, 2008, defendant sent numerous text messages to Castellanos, which she took to be threats and told him to stop threatening her or she would go to the police. Defendant sent her text messages daring her to do so, and one stating, “Believe me that’s the last thing you’ll do.” Another said, “I will even dare you to run to the cops.” A third stated, “Cuz you are starting to make me think that I wasn’t wanted like I thought and that would be bad, really fucking bad.” Finally, one stated, “You don’t know when to stop, do you? I am going to give you until five to call and say sorry. After that don’t complain about shit happening.”
On March 13 or 14, 2008, defendant asked Castellanos to meet him for a drink before work to discuss their relationship. She met him, but nothing was resolved. Afterwards, defendant walked her to her car and took her cell phone from her, which contained the telephone numbers of her coworkers, friends and family, including N.G. and N.G’s father, Alejandro Garcia (Garcia). A couple of days later, defendant returned the cell phone to Castellanos.
On or about March 18, 2008, between 6:00 and 8:00 a.m., defendant kept calling Castellanos. He was upset that she was not answering her phone. He went to her house and was there when she arrived home from taking her daughter to school. He asked her “where the hell” she had been and banged on her car. He left and text messaged her that if she did not talk with him, he was going to send sexually explicit photographs of them having sex to all of the people whose numbers he had taken from her cell phone, including N.G. Because Castellanos was worried he would send the pictures to people with whom she worked and that she would lose her job, she tried cooperating with him.
Between March 21 and March 25, 2008, the tone of defendant’s text messages briefly softened. He told Castellanos how much he loved and missed her and that he was going to give her “space.”
In April 2008, the threatening sounding text messages resumed, and, in mid April, defendant’s harassment escalated. On April 17, 2008, he texted Castellanos, “I am going to do something that I should have done by now.” Castellanos believed that this meant he was going to hurt her or someone she knew. On a few occasions, defendant went to her house, banged on her door at night and threatened her. On one occasion, he asked, “Did he have to kill [her]?” in order to speak with her. On April 19, 2008, he waited for her at her house at 3:30 a.m., when she got home from work, and told her she did not know what he was capable of, but that she should ask his ex-wife.
The charged offenses
On April 28 and 29, 2008, appellant made the charged threats. Unlike the earlier messages sent from a cell phone number that Castellanos recognized as belonging to defendant, on April 28, 2008, Castellanos received a series of text messages from a phone number she did not recognize. She believed they were from defendant based on the content of the messages and that there was no one else threatening to kill her.
The first message, sent at 12:51 a.m., stated: “I hope you know what you started. Enjoy yourself because it’s not going to last. And whatever happens, you have no one to blame but yourself. Hopefully no one is with you when it does because you are going to die. It’s up to you if you want your daughter to die with you.” At 1:02 a.m., Castellanos received a text stating, “I can’t wait to torture you and hear you beg for me to stop. This is not a joke. I am really going to kill your ass. So get ready to die, bitch.” Because she did not recognize the phone number from which the text was sent, Castellanos sent a text to the sender, stating that he had the wrong person. She received a response at 1:09 a.m., stating, “No, I don’t, Leslie Melissa Castellanos, I am going to torture and then murder you.” A text received at 1:20 a.m., said, “Don’t really know, but someone wants you dead pretty bad. Your daughter, well that’s for you to decide.” At 1:22 a.m., Castellanos received a text from the same number, “Bye bitch. I’m coming to kill you.” At 4:18 a.m., she received a text, stating, “Thought you said to call when I am ready to talk.” Finally a text message was sent to Castellanos at 4:21 a.m., “Just thinking about cutting you up is getting me excited.” Castellanos believed all of the texts were from defendant. She feared he was going to kill her.
At approximately 5:00 a.m. that same morning, Garcia saw a series of text messages that had been sent to his phone during the night. The first said, “If you were smart you would keep your daughter away from her mom so nothing bad happens to her... like what’s going to happen to Leslie.” Another text, sent at 2:01 a.m., stated, “Just want you to know that this is not a joke. Leslie is going to die.”
Later that day Garcia and Castellanos went to the police station, where she filed a police report. Castellanos then obtained an emergency restraining order. On the night of April 28, 2008, Castellanos stayed at Garcia’s home.
In the morning of April 29, 2008, Castellanos received more threatening messages from the same number. The first, at 2:13 a.m., stated, “What’s wrong, bitch. Don’t you want to talk with me anymore. You said to let you know when I was ready.” Castellanos replied, stating: “I don’t know who this is.” Ten minutes later she received a response, “Well, you are going to know me real good pretty fucking soon. I am going to get your ass.” A message at 2:40 a.m. said, “I can go to where you are working at right now if you want.” Castellanos feared defendant would kill her because he told her that he had killed someone in prison.
In addition, Castellanos and Garcia received over 30 harassing telephone calls from the unknown number throughout that night. When Garcia answered the phone, he heard noises, followed by a hang-up. Garcia called the number. Castellanos then received a text stating, “No, I called you, stupid bitch.” At 8:21 a.m., Castellanos received a text message warning her not to send her daughter to school that day. At 8:59 a.m., Garcia received a text message, “Make sure you keep her away from her mom.” Finally, at 10:55 a.m., Castellanos received a text message that stated, “Can I kill you today, after I have you watch me torture your daughter.” That message was quickly followed by another, stating, “But before that I want her to see me rape you.”
Defendant’s arrest
On April 29, 2008, Detective Julio Martinez arrested defendant near defendant’s car outside of his apartment. Defendant’s car was searched and five cell phones were recovered, which defendant acknowledged belonged to him. At the police station, after having been read his rights, defendant admitted that he used the cell phone with the number Castellanos could not identify to text Castellanos and Garcia on April 28 and 29, 2008. That phone number was to a pay-for-use phone that had no monthly contract and was not found in the search of the car. Detective Martinez read some of the threatening text messages to defendant, who admitted sending them but claimed they were a joke. After defendant’s arrest, neither Castellanos nor Garcia received any further threatening text messages.
DISCUSSION
I. Denial of motion for new trial
A. Background
On October 17, 2008, the jury began deliberations. At 10:44 a.m., it submitted a question, stating, “On Monday April 28, at 4:18 a.m., [defendant] presumably sent a text to [Castellanos] using the [phone with the number Castellanos did not recognize] that was used to send the threatening texts, which were written using more-proper syntax, etc.... [¶] Our question: What if the Defendant asked someone else to text threatening text messages to [Castellanos], but wasn’t himself conjuring the threats himself? Is [defendant] still to be held accountable for those threats? It appears that he is present while at least some of these threats are being written.”
Both counsel reviewed the jury’s question, were ready to argue, and, before noon, offered the trial court their positions with regard to the question. The jury was excused for lunch from 12:00 p.m. to 1:30 p.m. When counsel returned at 1:30 p.m., they did not have the opportunity to argue their positions, nor did they receive the trial court’s written response to the jury’s question, because the trial court was occupied with other matters. The jury buzzed at 2:00 p.m., seeking an answer to their question. At 2:30 p.m., before the trial court had answered the question, the jury indicated that it had reached a verdict. The trial court told the jury that it had been working on a response to the question, but it would not give the jury any further input because it had reached a verdict.
After trial, defense counsel filed a motion for new trial (1) pursuant to section 1181, subdivision (3), based on jury misconduct in reaching its verdict on an aiding and abetting theory that was not presented to it and on comments made in the jury room that there was no evidence of any other possible suspect presented, (2) pursuant to section 1181, subdivision (6), that the verdict is contrary to the law and evidence because based on an aiding and abetting theory not presented to the jury, (3) based on the nonstatutory ground that defendant was denied due process and a fair trial, and (4) based on the trial court’s failure to timely address the jury’s question when it learned that the jury was deliberating on the aiding and abetting theory.
The motion stated that on October 30, 2008, defense Investigator Contreras interviewed Juror No. 4, who stated that his verdict would have been different if the court had informed the jurors that defendant could not be found guilty on an aiding and abetting theory. On December 3, 2008, the investigator interviewed Juror No. 11, who told him that one of the reasons she voted guilty was because no other suspect was ever mentioned or introduced. Defendant argued that this statement improperly shifted the burden to the defense by expecting defense counsel to present another possible suspect.
The only evidentiary support for the motion was the declaration of defense counsel, Romina Aghai (Aghai), which had attached to it an “Investigation Report” (Investigation Report) of the defense investigator’s interview with Juror No. 11, but nothing relating to any interview of Juror No. 4. Aghai’s declaration, based in large part on the Investigation Report, stated, among other things, that: (1) during deliberations the jury asked whether defendant could be guilty “under a theory of aiding and abetting, ” though the case was only presented on a theory of principal liability, (2) the trial court delayed nearly four hours in responding to the question, by which time the jurors had announced that they had reached a verdict, (3) one juror stated that during deliberations the jury discussed the court’s failure to answer its question, (4) failure to address the question resulted in the jurors relying on aiding and abetting, a theory not proffered by the prosecution, and (5) the same juror also said that the jurors discussed that no other possible suspect was ever mentioned, impermissibly shifting the prosecution’s burden to the defendant and leading to the jury’s verdict.
The entire text of the Investigation Report is as follows: “I conducted a follow up telephonic interview of [Juror No. 11] on 2-19-09 and received the following statements. I clearly identified myself prior to the interview. [¶] [Juror No. 11] stated that regarding discussions in deliberation of the above case, she does recall the jury discussing the fact that no other possible suspect was ever mentioned or introduced, and how that led them to only consider the Deft. [Juror No. 11] stated she can’t recall what statements were made by which jurors, but recalls a female Hispanic teacher in her 30’s or 40’s, was someone who expressed reservations about finding the Deft guilty. [¶] [Juror No. 11] stated that, that issue was definitely raised and discussed, along with the fact that a question to the judge was never answered, regarding the possibility of someone else making the threat for the Deft, and how or what relativity that would have on the verdict. [¶] [Juror No. 11] stated she can’t recall if that question was initially covered by the judge, but the jury definitely had a follow up question, and/or wanted clarification on that question by the judge, but an answer never came. [¶] [Juror No. 11] stated she didn’t have a problem making her decision to find the Deft guilty, because regardless if he did it himself or had someone do it for him, he was still guilty. [Juror No. 11] stated the fact that no one else was mentioned or introduced as a suspect, finally propelled them to make a decision. [¶] [Juror No. 11] stated there were other jurors who also expressed questions about the above issues however, she can’t recall who they were, but believes it was two male White jurors.”
The trial court denied the motion for new trial as it assumed the jurors rejected the aiding and abetting theory and followed the instructions.
B. Contention
Defendant contends that the trial court abused its discretion in denying his motion for a new trial because (1) there was jury misconduct as a result of the jury considering an aiding and abetting theory, which was not presented and on which it was not instructed, and considering that no evidence of another suspect was introduced, thereby shifting the burden of proof to defendant, (2) the jury verdict was contrary to law and evidence because based on an aiding and abetting theory, and (3) the trial court abdicated its statutory duty under section 1138 by failing to promptly respond to the jury’s question. This contention is without merit.
C. Standard of review
An appellate court reviews a trial court’s ruling on a defendant’s motion for new trial under a deferential abuse of discretion standard. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) A ruling on a motion for new trial based upon misconduct of the jury will not be disturbed except for manifest abuse. (People v. Maggio (1928) 90 Cal.App. 683, 691.)
D. Propriety of the trial court’s ruling
The trial court conducts a three-step inquiry in response to a motion for new trial based upon jury misconduct. (People v. Duran (1996) 50 Cal.App.4th 103, 112.) First, the court must determine whether the evidence presented for consideration is admissible. (Ibid.) If the court finds that it is, it must then consider whether the facts establish misconduct. (Id. at p. 113.) Finally, even if misconduct is established, the court must determine if it is prejudicial. (Ibid.) Defendant’s new trial motion is deficient in all three respects.
1. Admissibility of evidence
The evidence submitted by defendant in support of his motion for new trial was inadmissible hearsay and/or inadmissible under Evidence Code section 1150. There was virtually no admissible evidence presented.
a. Hearsay
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) A jury verdict may not be impeached by hearsay affidavits. (People v. Williams (1988) 45 Cal.3d 1268, 1318 [“The sole evidence of the alleged misconduct was the declaration of a defense investigator that purports to relate a conversation with the juror. It is settled, however, that ‘a jury verdict may not be impeached by hearsay affidavits’”].) The declaration of an attorney’s investigator concerning purported statements and thoughts of jurors during deliberations contains hearsay and is not admissible to establish juror misconduct because the investigator did not hear the discussions. (Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1670-1671.)
The statements contained in the new trial motion itself, which are unsupported by evidence, are not evidence and cannot be considered in support of the motion. The only “evidence, ” Aghai’s declaration, with the attached Investigation Report of the investigator’s interview of Juror No. 11, is substantially composed of multiple hearsay. Aghai states in her declaration that Juror No. 11 said that (1) there were discussions during deliberations regarding the trial court’s failure to answer the submitted question, (2) the trial court’s failure to do so resulted in Juror No. 11 relying on the improper aiding and abetting theory in reaching a verdict, and (3) there were discussions during deliberations that no other possible suspect besides defendant was ever mentioned or introduced, which led to the jury verdict. Juror No. 11’s statements were apparently obtained by Aghai’s investigator and communicated to Aghai, making it double hearsay. There were no declarations of the investigator or of either of the interviewed jurors.
Only the portion of Aghai’s declaration that set forth her first hand observations of the question submitted by the jury, what she did in regard to it and how it was handled by the trial court are not hearsay. But that evidence alone, without the inadmissible juror hearsay statements, fails to establish any impact on the verdict.
Evidence Code section 1150 provides in part: “(a) 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.” The purpose behind this rule is to prevent instability of verdicts, fraud and the harassment of jurors. (People v. Hutchinson (1969) 71 Cal.2d 342, 348.)
In considering whether juror misconduct occurred we are thus limited to those influences that are “‘“open to sight, hearing, and the other senses and thus subject to corroboration.”’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 249, citing People v. Steele (2002) 27 Cal.4th 1230, 1261.)
Intrusion into the jurors’ reasoning and mental process – which can be neither corroborated or disproved – is prohibited. So too is “‘testimony concerning statements made by jurors in the course of their deliberations.’” (People v. Lewis (2001) 26 Cal.4th 334, 388 (Lewis), quoting People v. Hedgecock (1990) 51 Cal.3d 395, 418-419; People v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
Accordingly, a verdict cannot be impeached by considering a juror’s reasons for his or her vote or the juror’s private considerations of a particular matter in arriving at the juror’s verdict. (Lewis, supra, 26 Cal.4that p. 388; see Krouse v. Graham (1977) 19 Cal.3d 59, 81.) “‘[W]hen a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.’” (Lewis, at p. 389; People v. Duran, supra, 50 Cal.App.4th at pp. 112-113.) Jurors’ declarations are inadmissible to the extent they purport to describe how they arrived at their verdict. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125.)
A juror’s reasoning process is not inadmissible 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. (Lewis, supra, 26 Cal.4th at p. 389.) Statements made by jurors during deliberations are admissible in the context of an inquiry into the validity of a verdict, when the very making of the statement sought to be admitted would itself constitute misconduct. (In re Stankewitz (1985) 40 Cal.3d 391, 398.)
The statements in the Investigation Report, from which it appears the content of Aghai’s declaration was derived, are precluded by Evidence Code section 1150. The investigator wrote that Juror No. 11 reported that the jury discussed the fact that no other possible suspect was ever mentioned, that one juror expressed reservations about finding defendant guilty, that the trial court failed to answer the jury’s question, and the possibility that someone other than defendant made the threat on his behalf. This evidence related to statements made by jurors during deliberations, to their thought processes and to how they reached their verdict and were therefore inadmissible under Evidence Code section 1150. (Lewis, supra, 26 Cal.4th at p. 388, quoting People v. Hedgecock, supra, 51 Cal.3d at pp. 418-419.) Juror No. 11’s description of how she reached her verdict and that the jury “was propelled” to make its decision by the fact that no other suspect had been introduced is merely a reflection of Juror No. 11’s and the jury’s mental processes and is also barred by Evidence Code section 1150. (Lewis, supra, at p. 389; People v. Duran, supra, 50 Cal.App.4th at pp. 112-113.) None of these statements fall within the exception for statements that are in and of themselves misconduct. (In re Stankewitz, supra, 40 Cal.3d at p. 398.)
2. Misconduct
Even if we were to have concluded that all of the evidence presented by defendant in support of his motion for new trial was admissible, we would nonetheless conclude that that evidence did not establish jury misconduct.
There is nothing in the record to suggest that the jurors disregarded the law or the trial court’s instructions and instead imposed a different law. Contrary to defendant’s characterization, the question the jury asked the trial court did not intimate that it was considering finding defendant culpable on an aiding and abetting theory. It only inquired if he could be culpable whether he directly communicated the threat or used another person to transmit it. The question did not use the term “aiding and abetting, ” but simply asked, “what if the Defendant asked someone else to text threatening text messages?”
Section 422 does not require that the defendant threaten the victim directly. (In re David L. (1991) 234 Cal.App.3d 1655, 1657 [“[S]ection 422 is violated as well when such a threat is communicated by the threatener to a third party and by him conveyed to the victim”]; People v. Teal (1998) 61 Cal.App.4th 277, 280; see People v. Kirkpatrick (1994) 7 Cal.4th 988, 1015, fn. 6 [“Section 422... imposes criminal sanctions for this conduct without regard to how the threat is communicated”], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Consequently, a response to the jury’s question would presumably have involved telling them that whether defendant made the threats or asked someone else to do so for him, he would still be culpable as the perpetrator and not as an aider and abettor.
The jurors’ comments regarding the lack of evidence of another suspect do not mean that they supplanted the jury instructions with their own view of the law. It reflects no more than a natural curiosity of jurors as to why certain evidence was missing. The jury was instructed that defendant was presumed innocent, that the People had the burden of proof beyond a reasonable doubt (CALJIC No. 2.90), and that neither side was required to produce all possible witnesses or evidence (CALJIC No. 2.11). During the prosecution’s closing argument, the trial court reemphasized to the jury that “the burden is exclusively on the prosecution to prove the defendant guilty beyond a reasonable doubt. And the defense has no burden to present any evidence of any sort.” There is nothing to suggest that the jury ignored these instructions and placed the burden on the defendant to present evidence of another suspect. We presume it followed the instructions. (See People v. Horton (1995) 11 Cal.4th 1068, 1121.)
We also fail to find any basis for impeaching the verdict because of the delay, and ultimate failure, of the trial court to respond to the jury’s question. Section 1138 provides: “After the jury have retired for deliberation... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” The trial court has a primary duty to help the jury understand legal principles it is asked to apply. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) “The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced.” (Ibid.)
The jury sent out its question at 10:44 a.m. The attorneys studied the question and readied themselves to argue their positions to the judge, and the trial court prepared a written response. However, the usual 12:00 p.m. to 1:30 p.m. lunch break intervened. After lunch, the trial court had to deal with the press of other matters and, before it could discuss the matter with counsel and provide the jury with the written response it had prepared, the jury announced that it had reached a decision. While such a delay in advising the jury is unfortunate, we cannot say that it was misconduct. There is no admissible evidence, as discussed in part, I D1, ante, to support the proposition that the trial court’s failure to respond to the jury’s question affected the jury’s verdict and led the jury to decide the case on an aiding and abetting theory not presented by the prosecution.
Given our conclusion that there was no evidence of juror misconduct, it follows that defendant was not denied a fair trial or due process.
3. Prejudice
Before a unanimous verdict is set aside, the likelihood of bias must be substantial. (People v. Danks (2004) 32 Cal.4th 269, 303.) The trial court’s failure to clarify applicable law upon query by jury warrants reversal only if, after an examination of the entire cause including evidence, it appears reasonably probable defendant would have obtained a more favorable outcome had the error not occurred. (People v. Ross (2007) 155 Cal.App.4th 1033, 1055 [“Under [the Watson] standard, an error warrants reversal ‘only if, “after an examination of the entire cause, including the evidence” [citation], it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred [citation]’”].) Defendant suffered no prejudice here. The evidence against him was overwhelming. As the trial court aptly stated: “All I can say is if there were a case that involved, of this sort anyway, that involves more overwhelming evidence indicating that the person who was ultimately charged and convicted is the person who was responsible, I don’t know where he is.” The prosecution had hundreds of emails from defendant to Castellanos, many of a threatening nature. Though the emails out of which the charged offenses arose were sent from a phone number that Castellanos could not identify, their content was consistent with the threats and content of the earlier text messages from defendant’s known cell phone number and contained information indicating they were from defendant. Defendant had a motive to make the threats because of his purported unrequited love of Castellanos. Also, Castellanos had no one else in her life who was threatening her or with who she was in a dispute. Finally, defendant admitted to Detective Martinez that he used the unidentified, pay-for-use cell phone to text Castellanos and Garcia and admitted sending some of the text messages that were read to him by the detective, “as a joke.” After defendant’s arrest, neither Castellanos nor Garcia received any further threatening text messages.
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
II. Denial of defense request for juror information
A. Contention
During the hearing on defendant’s motion for new trial, he requested disclosure of identifying juror information. Defendant contends that the trial court abused its discretion in denying his request for access to that information. He argues that he demonstrated good cause for its disclosure based upon statements of Juror No 11, reflected in the Investigation Report. He argues that these statements and the unanswered jury question indicates that the jury improperly reached its verdict on an aiding and abetting theory never presented to it and also improperly considered that no other suspects had been introduced or presented. This contention is without merit.
B. Petition for disclosure of jury information
Code of Civil Procedure section 206 provides that in a criminal case, the judge must inform jurors of their absolute right to discuss or not to discuss the deliberations or verdict with anyone. (Code Civ. Proc., § 206, subd. (a).) It further provides that the defendant or his counsel may speak with a juror with the juror’s consent, at a reasonable time and place. (§ 206, subd. (b).) If a discussion regarding the deliberation or verdict with a member of the jury occurs more than 24 hours after the verdict, before discussing the jury deliberation or verdict with a member of a jury, the defendant or his or her attorney or representative must inform the juror “of the identity of the case, the party in that case which the person represents, the subject of the interview, the absolute right of the juror to discuss or not discuss the deliberations or verdict in the case with the person, and the juror’s right to review and have a copy of any declaration filed with the court.” (§ 206, subd. (c).) A defendant can, after recording of the criminal verdict, petition the court for access to personal juror identifying information, pursuant to section 237. (Code Civ. Proc., § 206, subd. (g).)
Code of Civil Procedure section 237, subdivision (a)(2) requires that juror identifying information be sealed upon the recording of a jury’s verdict, until further order of the court. A person may petition the court for access to these records by a petition supported by declarations that provide adequate information to establish good cause. (§ 237, subd. (b).) The court is to set the matter for hearing if there is a showing of good cause for release, but not if there is a showing of facts establishing a compelling interest against disclosure, such as protecting jurors from threats or danger of physical harm. (Ibid.) The purpose of Code of Civil Procedure section 237 is to close the door to access to the extent that it could. (People v. Granish (1996) 41 Cal.App.4th 1117, 1126.)
While a defendant may request personal juror information, the defendant has no absolute right to it. (People v. Barton (1995) 37 Cal.App.4th 709, 716.) Whether to grant a petition for disclosure involves the balancing of two competing interests in the disclosure of such information: the individual jurors’ constitutional right to privacy and the strong public interest in the ascertainment of the truth in criminal proceedings. (People v. Duran, supra, 50 Cal.App.4th at p. 116.)
Code of Civil Procedure section 237, subdivision (c) requires that a showing of good cause based upon supporting declarations be made before juror information is released. A declaration “means a written statement signed by an individual which includes the date and place of signing, and a statement under penalty of perjury under the laws of this state that its contents are true and correct.” (Code Civ. Proc., § 116.130, subd. (i); People v. Duran, supra, 50 Cal.App.4th at p. 120.) In order to show good cause there must be “strong” indicia of juror misconduct. (People v. Tuggles (2009) 179 Cal.App.4th 339, 385.) “Good cause” is not established where the allegations of the jury misconduct are speculative, vague or conclusory. (See People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
Moreover, the misconduct alleged must be of such a character as is likely to have influenced the verdict improperly. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) We review a denial of a postverdict petition for juror contact information under the deferential abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
Given the charges against defendant for threatening to torture and kill Castellanos in many text messages, and his harassment of her, a serious risk to jurors might be presented if defendant had access to their personal information. Hence, a higher threshold showing would be required to give defendant access to such information. But he has not even made a minimal showing.
Here, as discussed in part I, ante, there were no admissible declarations presented to establish good cause for giving defendant access to jury identifying information. There were no juror declarations swearing to the facts that defendant contends shows misconduct. Aghai’s declaration was substantially composed of inadmissible hearsay. Attaching the investigator’s report of statements he obtained from Juror No. 11 to Aghai’s declaration did not make the report or juror statements admissible evidence. They constituted no evidence at all.
Further, as also discussed in part I, ante, even if the evidence presented was nonhearsay evidence, Evidence Code section 1150 would preclude consideration of much, if not all, of the content of the jurors’ purported statements, as they went to the mental processes by which the verdict was reached and to the jury deliberations rather than indication of juror misconduct.
As pointed out by respondent, the jury’s unanswered question did not suggest that jurors were considering an aiding and abetting theory, “because the factual scenario described in the question still subjected [defendant] to guilt as the direct perpetrator under... section 422.”
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J, ASHMANN-GERST, J.