Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge, Super. Ct. No. KA075033
Rita L. Swenor, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Francisco Guerrero was convicted, following a jury trial, of one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). Appellant admitted that he had suffered a prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "three strikes" law) and served a prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced appellant to the middle term of two years, doubled to four years pursuant to the three strikes law, plus a one-year enhancement term pursuant to Penal Code section 667.5.
Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in denying his petition to release juror information, and thereby denied his federal constitutional right to due process. We vacate the judgment of conviction and remand this matter for further proceedings on appellant's request for juror information.
Facts
On May 10, 2006, about 11:11 p.m., El Monte Police Detectives Jacob Salmon and Martha Lopez were on patrol in a marked police car on Valley Boulevard. Detective Salmon was driving eastbound. Both detectives observed appellant ride his bicycle across Valley Boulevard from the south side to the north, causing two cars to stop abruptly. This conduct was a violation of Vehicle Code section 21202, subdivision (a). Detective Salmon turned on the colored light bar on top of the patrol car. He turned the car across lanes so that the front of the car faced the north side of Valley Boulevard. The detectives turned on the side spotlights and pointed them at appellant. Appellant rode slowly but did not stop.
Detective Salmon stopped the car and both detectives got out. Appellant made eye contact with Detective Salmon, but continued riding. Detective Salmon activated his air horn, then ordered appellant to get off his bicycle. Appellant looked over his shoulder and made eye contact, but kept riding. When appellant reached a donut shop, he reached into his pocket, pulled out an object and threw it into a planter located in front of the shop. Appellant then turned around, rode back to the detectives and got off his bicycle.
Detective Salmon conducted a pat-down search of appellant. Detective Lopez stayed with appellant while Detective Salmon went to the planter. There, he recovered a plastic baggie containing a substance later determined to be crystal methamphetamine.
Appellant presented no witnesses. Appellant's counsel devoted a great deal of time to cross-examining Detective Lopez about inconsistencies between her testimony at trial and her testimony at the preliminary hearing. There were inconsistencies in a number of areas, including her testimony about the direction the patrol car was traveling when the detectives first saw appellant, the direction in which appellant was riding, whether appellant crossed Valley Boulevard, the location of the planter and Detective Lopez's location when she saw appellant throw the item into the planter.
Discussion
Prior to sentencing, appellant filed a petition for access to jury records pursuant to Code of Civil Procedure section 237. This petition was accompanied by a declaration from counsel stating that immediately after the trial, counsel was approached by several jurors who told her that "one of the jurors had told the group that the officers were required to testify at both hearings. This information was based on some type of expertise this juror had in the judicial system and jury trials." The jurors also told appellant's counsel that they had not believed Detective Lopez's testimony because defense counsel had impeached her with inconsistent testimony from the preliminary hearing. The jurors decided that since Detective Salmon was not impeached at trial, his trial testimony must have been consistent with his preliminary hearing testimony, and that this consistency meant that he was truthful. In fact, Detective Salmon did not testify at the preliminary hearing. The trial court denied appellant's petition.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Denial of a petition filed pursuant to section 237 is reviewed under the deferential abuse of discretion standard. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097-1098.)
Section 237, subdivision (b), provides in pertinent part: "Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure."
Section 206, subdivision (g), provides in pertinent part: "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."
Respondent contends that the declarations offered by appellant to support his motion contained double hearsay, which was not admissible, and that for this reason alone, the trial court was correct in denying the motion. Respondent did not object to the declarations on this ground, and so has forfeited this claim. (Evid. Code, § 353; People v. Pineda (1967) 253 Cal.App.2d 443, 465.)
Even assuming that respondent's claim was not forfeited, we see no indication that the court based its denial on the hearsay nature of the evidence offered and so was correct. Further, we do not agree with respondent that hearsay is uniformly inadmissible to support petitions under section 237. Respondent relies on People v. Jefflo (1998) 63 Cal.App.4th 1314 to support this contention. The court in Jefflo simply noted that the declarations provided by defense counsel constituted hearsay. (Id. at pp. 1318, 1322.) We see nothing to indicate that the trial court denied the petition because the declarations constituted hearsay, or that the Court of Appeal based its affirmance on this fact. We also see no reason to uniformly bar hearsay offered to support petitions for juror identifying information. In most cases, it would be difficult or impossible for defense counsel to get declarations from jurors before the court ordered the release of juror identifying information.
Here, the trial court explained its denial of appellant's petition as follows: "We're basically talking about whether the statements influenced the verdict improperly, and evidence relating to the effects of statements on a juror or evidence concerning a juror's mental processes is inadmissible pursuant to Evidence Code section 1150, citing People [v.] Hill at 3 Cal.[App.]4th, page 16, further citing [Mesecher v.] County of San Diego at 9 Cal.[App.]4th [1677], and Jefferson's Evidence Bench Book. [¶] In [Mesecher] the jury in essence wrote their own jury instructions or modified the jury instructions that were, in fact, given, and [Mesecher] said that that was not improper." The court added: "[T]he most recent case that I was able to find is People [v.] Steele at 27 Cal.4th 1230, and that was a death penalty case in which the jury had, among other things, on its deliberating panel three or four Vietnam veterans with combat and military experience with the other jurors. And those declarations, because they concerned the mental processes, were inadmissible to impeach the verdict. . . . [¶] And among the other comments the court made, (reading:) 'evidence that the jurors . . . were influenced by an improper remark of a fellow juror . . . is simply of no legal significance.' In short, the jurors' motives, beliefs, misunderstandings, intention, and the like, are immaterial, Steele at page 1264, quoting People [v.] Hill."
The trial court correctly understood that evidence of the jurors' subjective mental processes were not admissible to support a motion for new trial. For that reason, the court saw no need to permit appellant's counsel to contact jurors, because evidence of their subjective mental processes would be useless in a motion for new trial. The jurors' subjective mental processes were not the only basis for a potential new trial motion, however. The statement that police officers are required by law to testify at both the preliminary hearing and trial, made by a juror claiming judicial expertise, could be misconduct and would be admissible to support a motion for a new trial. Further inquiry into this statement was warranted.
Immediately following the portion of Steele quoted by the trial court above, the Supreme Court wrote: "To the extent the declarations stated what effect these jurors had on the deliberations, the statements are inadmissible under Evidence Code section 1150, subdivision (a), which, as discussed, prohibits evidence showing the effect that statements or conduct had 'upon a juror either in influencing him to assent or to dissent from the verdict . . . .' However, portions of the declarations involved statements made or conduct occurring within the jury room. Those portions are evidence of objectively ascertainable overt acts that are open to sight, hearing, and the other senses and are therefore subject to corroboration. As such, the court properly could, and did, consider those statements. [Citations.]" (People v. Steele, supra, 27 Cal.4th at p. 1265, emphasis added.)
Thus, under Steele, the trial court could and should have considered appellant's claim that a juror made a statement that amounted to misconduct, specifically that a juror stated that officers were required by law to testify at both the preliminary hearing and at trial and that he based this statement on expertise in the judicial system. As our Supreme Court has explained: "'[An] injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct.' [Citations.]" (People v. Steele, supra, 27 Cal.4th at p. 1265.)
If it is determined that a juror's statement constitutes such misconduct, this misconduct "raises a presumption of prejudice, which may be rebutted by proof no prejudice actually resulted. [Citations.]" (In re Malone (1996) 12 Cal.4th 935, 963.) "The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. [Citation.]" (In re Malone, supra, 12 Cal.4th at p. 964, internal citations omitted and emphasis added.)
As the court in Steele made clear: "A fine line exists between using one's background in analyzing the evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information obtained from outside sources,' which we have described as misconduct. [Citation.]" (People v. Steele, supra, 27 Cal.4th at p. 1266.) Since no hearing was held in this matter, it is impossible for this court to know what, if anything, the "expert" juror said. It is possible that the jurors were not being honest or accurate in what they told appellant's counsel. It is also impossible to know what type of expertise this juror claimed. A statement based on past experience as a juror in criminal trials would be a different matter than a statement based on experience working as a court clerk, for example. Further, if it is determined that the alleged statement was made, and that it was misconduct, the trial court is in the best position to assess whether the statement is inherently likely to have influenced jurors.
We remand this matter to the trial court for further proceedings. Appellant has set forth a prima facie case for disclosure of juror's personal identifying information. On remand, the trial court may consider any claim by the People that there is a compelling interest against disclosure. Unless such an interest is found to exist, trial court should set appellant's petition for a hearing, as specified in section 237, subdivisions (b) and (c). If disclosure of juror identifying information is ordered, appellant shall be given a reasonable amount of time to investigate the alleged statement about required police testimony and to determine if further proceedings such as a motion for a new trial, are warranted.
Appellant appears to contend that the trial court treated his petition as also being a motion for new trial and improperly denied that motion without permitting investigation into juror misconduct or holding a hearing. We do not reach this issue at this time. If needed, appellant may raise this claim on a subsequent appeal.
Disposition
The judgment is vacated and remanded to the trial court with instructions to determine if there is a compelling interest against disclosure of juror identifying information. If there is not, the court is directed to hold a hearing pursuant to section 237, subdivisions (b) and (c). If appellant's petition is denied, the judgment is ordered reinstated.
We concur: TURNER, P. J., MOSK, J.