Opinion
D041245.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PAUL GERBER, Defendant and Appellant.
Joseph Paul Gerber was convicted of auto theft, vehicle taking, receiving stolen property, evading an officer with reckless driving, hit and run driving and possession of drug paraphernalia. It was found true Gerber had suffered three prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b). Gerber was sentenced to a prison term of six years. He appeals, arguing the trial court committed instructional error and abused its discretion in refusing to contact a juror after trial to investigate jury misconduct and that the evidence was insufficient to support his conviction of auto theft.
DISCUSSION
A. Prosecution Evidence
At approximately 4:15 a.m. on June 4, 2002, the police received a report that a Mustang automobile had been stolen in Encanto. At 4:40 a.m. a police officer saw the car being driven by a white man with a black male passenger approximately two and one-half miles from where the car was stolen. When the officer activated his overhead lights, the driver of the Mustang sped away. A high-speed chase continued over freeway and surface streets. Eventually, the officer lost sight of the vehicle at University and Wabash Avenues in the North Park area of San Diego.
In the early morning hours of June 4, 2002, Tom Landis was watering his front lawn on Orange Avenue in North Park when he heard sirens on University Avenue, about five blocks away. He then observed a white Mustang moving at a high rate of speed on Wabash Avenue. The driver attempted to turn onto 33rd Street but lost control of the vehicle. When the car hit a fence and came to a stop, a white man with blond hair got out of the drivers side of the vehicle, ran up 33rd Street and then between two houses. Shortly thereafter, a police car came up the street. Landis indicated to the officers the direction the man had run.
Officer Carmelin Rivera saw Landis and heard him indicate that the driver of the Mustang had gone in the direction of a nearby residence. Officers established a perimeter around the area of the house. Within five minutes a canine unit arrived. The officers and the dog walked between the residence pointed out by Landis and an adjoining house and into an alley behind the houses. The officers saw appellant and ordered him to the ground. He complied. Appellant was breathing heavily and sweating profusely.
The officer took appellant back to the street and conducted a curbside show-up for Landis. While Landis was unable to identify appellant as the driver of the Mustang, he stated appellant fit the description in terms of clothing, hair color and body type of that man. Appellant was placed under arrest and was searched. In his pocket he had a metal pipe used for smoking narcotics and a Swiss Army knife containing a screwdriver and numerous other tools. The knife had "red shaving" tucked inside one of the blades. The Mustang had been "hot wired." The hot wiring process requires an ignition wire be stripped of its insulation.
B. Defense Evidence
Appellant testified and stated that at the time of his arrest he was on parole and was in a drug rehabilitation program. He went to the area where he was arrested in the early evening and used drugs that night and into the morning of his arrest. At the time of his arrest appellant was preparing to return home. As he walked up the street he heard sirens and saw cars moving quickly. Appellant stated he panicked and hid behind the house where he was arrested.
DISCUSSION
A. Instruction on Recently Stolen Property
The jury was instructed in the terms of CALJIC No. 2.15 that if it found appellant was in possession of recently stolen property and is aware the property is stolen, the fact of such possession alone is insufficient to permit an inference he was guilty of the charged theft related offenses. It was further instructed guilt cannot be inferred unless there is corroborating evidence tending to prove guilt. The jury was told such corroborating evidence, however, need only be slight and need not by itself be sufficient to warrant an inference of guilt. Appellant argues such instruction denies due process since it reduces the prosecutions burden of proof.
In People v. Yeoman (2003) 31 Cal.4th 93, 131, our Supreme Court stated: "Defendant also contends that CALJIC [No.] . . . 2.15 violate[s] due process because [it] create[s] mandatory inferences or conclusive presumptions that shift, in effect, the Peoples burden of proof to the defense. [Citation.] We have previously rejected the contention because the instruction[] in question permit[s], but clearly [does] not require, the jury to draw the inference described therein. [Citations.]"
The trial court did not err in instructing in the terms of CALJIC No. 2.15.
B. Failure to Contact Juror
Appellant argues the trial court erred when after trial it declined to contact a juror to inquire whether the juror would speak to defense counsel concerning possible improprieties during deliberations.
1. Background
After the verdicts were returned, a hearing was held on appellants alleged prior convictions. Before that hearing defense counsel asked the court to provide her confidential juror identification information so she could contact Juror Nos. 4 and 12 and perhaps make a motion for new trial based on jury misconduct. She stated that after the verdicts, Juror No. 12 indicated to her some concern about identification evidence related to the Mustang drivers hair length and color that did not seem to match appellants hair. Juror No. 4 told counsel he had wrestled with the evidence but that there was a preponderance of more things pointing to guilt than innocence. Juror No. 4 stated he still had lingering doubts. When counsel told Juror No. 4 that was reasonable doubt, Juror No. 4 became emotional and stated: "I did the wrong thing."
The trial court indicated a written motion was required for the disclosure of juror identification information.
The prosecutor stated she heard counsels conversation with the jurors. She noted the emotional content of those conversations might have been affected by appellants parents telling the jurors they had convicted an innocent man and appellants mother telling the prosecutor she could "rot in hell."
Appellant filed a motion pursuant to Code of Civil Procedure sections 206 and 237, seeking the disclosure of identifying information concerning Juror Nos. 4 and 12. By declaration, defense counsel noted that after the verdicts were returned, she spoke to several of the jurors. She stated that in general they commented "there seemed to be more evidence pointing to guilt than not." She stated that specifically Juror No. 12 indicated some reservation about identification testimony concerning appellants hair that did not match appellants booking photograph. Counsels declaration quotes Juror No. 12 as stating: "`The blond hair still bothers me, but the rest of the stuff was too coincidental."
Counsels declaration notes that Juror No. 4 told her "he wrestled with the evidence, but there was a preponderance of things pointing to guilt rather than innocence." Counsels declaration also notes that Juror No. 4 said he "still [had his] doubts" and that he "probably [would] have these lingering doubts stay with [him] the rest of [his] life." When defense counsel stated to Juror No. 4 that was a reasonable doubt, the juror replied "`I did the wrong thing."
The prosecutor objected to the release of confidential juror identification information, arguing the defense had failed to make a sufficient showing of good cause. In a declaration attached to the opposition, the prosecutor reiterated the events surrounding defense counsels discussion with the jurors, including the behavior of appellants parents.
The trial court found counsels declaration concerning the comments of Juror No. 12 with regard to appellants hair color insufficient to support disclosure of juror identification information. The court noted such evidence was a matter of dispute at trial. The court stated jurors undoubtedly considered that evidence and simply concluded any doubt raised by it was overcome by the remaining evidence. The court found no suggestion of misconduct in Juror No. 12s comments.
The court was concerned by the reported statements of Juror No. 4 and agreed to contact the juror as required by law to see if he would to speak to defense counsel.
At a later hearing the court indicated Juror No. 4 had been contacted by letter and had responded that he did not wish to be contacted in any way. The court stated it would not provide the defense information to allow it to contact Juror No. 4.
2. Discussion
Appellant argues the trial court abused its discretion in refusing to contact Juror No. 12.
After the recording of a jury verdict in a criminal case, the court record of personal juror identification information is sealed. (Code Civ. Proc., § 237, subd. (a)(2).) A trial court on petition may in its discretion grant access to such information when necessary to the development of a motion for new trial or for any other legal purpose. (Code Civ. Proc., § 206, subd. (g).) Such petition must be supported by a declaration citing facts sufficient to establish good cause for the release of the information. If the declaration establishes a prima facie showing of good cause, the trial court must set the matter for hearing and contact the juror or jurors whose personal identification information is sought. If the court determines not to set the matter for hearing, it is required to set forth the reasons and make an express finding either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure. (Code Civ. Proc., § 237, subds. (b), (c).)
In an uncodified declaration made as part of the 1995 amendment of Code of Civil Procedure section 206, the Legislature stated that jurors who have served on a criminal case have completed their civil duty. The Legislature stated that the procedures in sections 206 and 237 were designed to balance a specifically established need for juror identification information "against the interests in protecting the jurors privacy, safety, and well being, as well as the interest in maintaining public confidence and willingness to participate in the jury system." (Stats. 1995, ch. 964, § 1, p. 7375.) The courts have long recognized their inherent power to strike this balance. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089-1096; People v. Rhodes (1989) 212 Cal.App.3d 541, 546-547.)
In this context, to demonstrate the required good cause, a defendant must make 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." (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (People v. Wilson (1996) 43 Cal.App.4th 839, 852; People v. Rhodes, supra, 212 Cal.App.3d at pp. 553-554.) A trial courts denial of a petition to disclose juror identification information is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
The trial court did not abuse its discretion in refusing to contact Juror No. 12. Juror No. 12s comments about some possible discrepancy between, presumably, Tom Landiss description of the Mustang drivers hair and the booking photograph of appellant obviously provided no basis for the trial court to contact that juror. A frequent part of a criminal defense is to demonstrate possible contradictions or inconsistencies in prosecution evidence. Juror No. 12 stated nothing more than she recognized a possible problem in the prosecution evidence, tested it against the remaining evidence and found appellant guilty. Nothing in that suggests misconduct.
Appellant also argues Juror No. 4s comments to defense counsel suggest the jury judged the case using a preponderance of the evidence rather than a beyond a reasonable doubt standard and that the court should have contacted Juror No. 12, after Juror No. 4 refused to speak to counsel, to allow investigation of that possibility.
Juror No. 4, under stressful circumstances, in an informal setting and in discussing his own thought processes, may have stated that a preponderance of things pointed to guilt rather than innocence. Even if, for the sake of argument, this raises doubts concerning the test Juror No. 4 utilized in reaching his verdict, there is no indication Juror No. 12 or any other juror used the wrong standard of review or had any knowledge concerning the test employed by Juror No. 4. Appellant states: "For all anyone knows, Juror No. 12 may have been able to provide objective evidence of an overt event or circumstance, suggesting a likelihood that one or more members of the jury were under a misapprehension regarding the standard of proof." Such statement is speculation.
C. Sufficiency of Evidence
Appellant argues there was insufficient evidence to support a guilty verdict on the charge of auto theft. Appellant contends that while the evidence reasonably supports a conclusion that appellant was the driver of the Mustang when fleeing the police, there is no evidence he was the person who actually took the vehicle.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.)
As noted above the possession of recently stolen property with only slight corroborating evidence is sufficient to support a finding of guilt on a charge of theft. Here, appellant was in possession of a recently stolen car. When the police attempted to stop him, he fled. When, after a high-speed chase, he crashed the vehicle, he fled on foot and attempted to hide. Also, the knife he possessed contained evidence consistent with "shavings" from an insulation wire. At trial he testified he had no contact with the vehicle whatsoever. The jury could reasonably reject appellants testimony and conclude he fled because he had recently stolen the Mustang. The evidence was sufficient.
D. Reversal of Counts 2 and 3
Appellant argues and the Attorney General agrees that it was improper to convict him both of auto theft and the lesser included offense of unlawful driving or taking of that same vehicle on the same occasion. The parties are correct and the conviction for unlawful driving or taking a vehicle in count 2 is reversed. (People v. Barrick (1982) 33 Cal.3d 115, 128.)
The parties also agree that it was improper to convict appellant of both auto theft and receiving stolen property when the property received was the stolen vehicle. The parties are again correct and appellants conviction of receiving stolen property in count 3 is reversed. (People v. Jaramillo (1996) 16 Cal.3d 752, 757.)
Counts 2 and 3 are reversed. In all other respects the judgment is affirmed.
WE CONCUR: HALLER, J., and McDONALD, J.