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People v. Hezekiah

Court of Appeals of California, Second Appellate District, Division One.
Nov 21, 2003
No. B159630 (Cal. Ct. App. Nov. 21, 2003)

Opinion

B159630.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. DENNIS MENELIK HEZEKIAH, Defendant and Appellant.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Nora Genelin, Deputy Attorneys General, for Plaintiff and Respondent.


Dennis Hezekiah appeals from the judgment entered following a jury trial in which he was convicted of three counts of attempting to kidnap a person under 14 years of age. (Pen. Code, §§ 664/207, subd. (a), 208, subd. (b) [further section references are to the Pen. Code].) Defendant further admitted that he had sustained a felony conviction for which he had served a prison term. (§ 667.5, subd. (b).) Defendant contends (1) the trial court erred in imposing discovery sanctions; (2) trial counsel rendered ineffective assistance with respect to discovery obligations; (3) the prosecutor improperly questioned one of defendants character witnesses; and (4) an evidentiary hearing should have been ordered with respect to juror misconduct. We affirm.

BACKGROUND

Thirteen-year-old Christina E. was the victim of two of the three offenses. She testified that in March 2001, she was walking near her mothers house on Redondo Boulevard in Los Angeles around 3:30 p.m. when defendant stopped his small white car near her. Defendant asked for Christinas name and phone number. She refused to give the information and left. (This encounter did not give rise to any charges.)

A few weeks later, Christina was walking in the same area when defendant, in the same white car, drove into a driveway and blocked Christinas path. Defendant asked Christina for directions to Hauser Street. As Christina talked to defendant, he asked her to get closer to the car. She refused. After defendant again asked Christina to get closer, he slid over to the passenger side of the car. Defendant then reached out of the open window of his car and grabbed Christinas arm, pulling her toward the car. Christina managed to free herself and ran away.

On April 11, 2001, Christina was again walking in the same area around 2:00 p.m. She saw a white van parked on the street and a man attempting to open the vans sliding door. When he did so, Christina noticed that the man was defendant. Defendant grabbed Christina by the arm and pulled her toward the van. Christina started screaming and defendant noticed there were other people nearby. He then released Christina, got into the van, and drove away.

About a week later, Christina was shown a six-pack photographic lineup card. She selected defendants photo, writing, "`I think its him because when he grabbed my hand, I turned around to see him and he looks exactly like him." On May 24, 2001 Christina identified defendant in a live lineup. She also identified defendant in court. Evidence was also adduced that shortly after the preliminary hearing, Christina saw a man driving a white van that she thought was defendant. It was not. (Defendant was in custody at the time.) Christina later saw a woman on a bus, whom she mistakenly thought had attended the preliminary hearing.

Twelve-year-old Stephanie C. was the victim of the third attempted kidnapping. Stephanie testified that around 3:00 p.m. on April 18, 2001, she was walking on Venice Boulevard when defendant, on foot, started to follow her. Defendant grabbed her arm and said that he would hurt her if she got loud. Defendant pulled Stephanie toward him, and Stephanie began to struggle.

Los Angeles police officers on routine patrol saw the struggle. Stephanie yelled for help and made eye contact with one of the officers. The officers stopped and defendant let go of Stephanie. Defendant complied with orders to place his hands behind his head. He did not appear confused or disoriented. An officer observed a lump the size of a half-dollar on defendants head. It was not a cut, nor was it bleeding or discolored. (Later that day, a different officer observed minor swelling to defendants head.) Defendants white Honda CRX was nearby, parked three to four feet from the curb. A search of defendants home yielded a purchase contract in defendants name for a Pontiac Transport van.

Defendant testified in his own behalf and presented the testimony of several other witnesses. With respect to the incidents involving Christina, the defense was alibi. Defendant studied respiratory therapy at school in North Hollywood, which he attended from 8:00 a.m. to 3:00 p.m. On April 11, 2001, he was on spring break and spent the day with a friend, Lewis Young (who testified for the defense). About 2:15 p.m., defendant and Young arrived at a barber shop where defendant sometimes worked, cutting hair. A customer named Mark Holland was waiting for defendant to arrive, and defendant cut Hollands hair. Defendant then cut Youngs hair. During that time, Arne Moreland (another alibi witness) arrived and spoke with defendant and Young. Defendant remained at the barber shop until about 4:30 p.m. Although he had purchased a white Pontiac van, a friend (who also testified) assumed the payments and took possession of the van in March 2001. Defendant never used the van after it had been delivered to the friend.

With respect to the incident involving Stephanie, defendant claimed that at 2:00 p.m. on April 18, he left school (which was at a different location after the semester break) and was driving near his home when he stopped to get gas at a station at Venice and Crenshaw Boulevards. The station had pumps that accepted cash, and defendant was holding a $20 bill in his hand and unscrewing the gas cap of his car when he was approached by two men and hit in the back of the head. Defendant fell to his knees and became disoriented. He had trouble getting control of his vision and soon realized that the $20 bill was gone. Defendant then got into his car and started to drive toward the police station on Venice Boulevard. He turned onto a side street, stopping a few feet from the curb while trying to retain his vision. Defendant next went up to a house and shouted to see if anyone was home. There was no response, but he saw a lady (Stephanie) on the street and asked her for help. The lady began screaming and defendant grabbed her arm so she would stop, telling her that he was not going to hurt her. At that point, officers arrived and arrested him.

Defendant also presented two witnesses who testified as to defendants good character. One, an assistant superintendent of educational programs for the Los Angeles Board of Education, had utilized defendants barbering services. Defendant also had a karate school, and the witness had enrolled his children as students in defendants school. The witness had further arranged for defendant to teach karate in after-school programs with the Los Angeles Unified School District. The second character witness owned a child care center that had a business relationship with defendants karate school.

In rebuttal, Mark Holland, whom defendant claimed was waiting to get a haircut when defendant arrived at his barber shop around 2:15 p.m. on April 11 (the date of the second attempted kidnapping of Christina), testified that on April 11 he was on duty at his job as a Santa Monica police officer until approximately 4:30 p.m.

Also in rebuttal, a Los Angeles police officer testified that following defendants arrest, defendant did not appear to be staggering or uncoordinated and had no difficulties understanding what was being said. Although defendant reported that he had been struck in the back of the head, inspection of the area did not reveal any visible injury. But after defendant had been placed in a holding cell, an injury was observed for the first time at the back of defendants head in an area that had previously been checked. Another officer testified that the pumps at the gas station at Venice and Crenshaw Boulevards were not equipped to accept cash.

Defendant was also charged with attempting to kidnap 18-year-old Karol C. on the evening of April 17, 2001. Karol was equivocal in her identification of the perpetrator, and defendants ex-wife testified that she was with him at the karate school at the time of the incident. Defendant was acquitted on this count.

DISCUSSION

1. Discovery Sanctions

Defendant contends that the trial court abused its discretion in imposing, as sanctions for late discovery, the exclusion of one defense witness and in instructing the jury on defendants failure to produce evidence timely pursuant to CALJIC No. 2.28 (see fn. 2, post). We disagree.

Defendant was represented at the June 28, 2001 preliminary hearing by retained counsel Arthur Barens. An arraignment set for July 12 was continued based on a statement by a deputy public defender that defendant was in the process of retaining Barens for all purposes. At the continued arraignment of July 26, retained counsel LaChelle Woodert (who ultimately tried the case) appeared with defendant as his attorney. On August 17, Woodert appeared on defendants behalf at a pretrial conference. At that conference, a section 995 motion was scheduled for September 20 and trial was set to commence on October 23. On September 20, the matter was continued to October 23 on defense counsels request. On October 11, a written motion pursuant to section 995 was filed on defendants behalf by Attorney Mylik Harrington, who identified himself in the pleading as attorney for defendant.

Both Harrington and Woodert appeared on October 23, 2001. Harrington stated that he had been asked by members of defendants family to prepare the section 995 motion when they were unable to get in touch with Woodert, but that he had "not been retained for all purposes." The court stated that it would not allow the case to proceed with different attorneys for different proceedings and that Harrington could not substitute in at that point. Woodert said that she was under the impression that she was out of the case and was not ready to go forward on the section 995 motion. She requested that the matter be put over for a week. Woodert stated that she had spoken with the prosecutor about putting the trial over for three weeks and that she "would be prepared to do the trial whether or not they substitute anyone in. I make that representation as an officer of the court that in a week Ill be ready to . . . argue the motions. In three weeks, Ill be ready to do the trial . . . ." Ultimately, it was agreed that the section 995 motion would be continued to November 27, which would also be day zero of ten for trial.

On November 27, 2001, Woodert appeared on defendants behalf and argued the section 995 motion. (The motion was granted as to one count, which alleged stalking a different victim than those alleged in the attempted kidnapping counts.) Woodert mentioned that there were items of discovery she had not received from the prosecution, and a discussion on the subject ensued. The matter was then trailed to December 3, as day six of ten for trial.

On December 3, 2001, the matter came on before a different trial court than had heard the earlier proceedings. Also on that date, Woodert filed a motion to continue trial to December 10, stating that she did not yet have all discovery materials, including a police report with a statement of victim Christina E., and needed additional time for investigation. At the hearing, the prosecutor asserted that defendant had all discovery and there was no need for a continuance. The court ruled that the matter should be trailed for one day to allow Woodert to review the prosecutions responses to discovery.

At proceedings on December 4, 2001, the court and counsel discussed discovery already received by Woodert and further discovery that was to be given to her. Both sides announced ready for trial, and the matter was transferred to another courtroom for trial, to commence on December 5.

On December 5, 2001, the prosecutor stated that Woodert "just indicated to me several minutes ago that shes probably going to be presenting an alibi defense with some witnesses. Ive never been informed or given any reports, names of any witnesses. I still dont have any today." Woodert said that she had not had the opportunity to speak to witnesses regarding the alibi defense and did not know whether they would be called to testify at trial. Woodert promised that she would provide the prosecutor with names and contact information for both alibi and character witnesses, asserting that her failure to previously disclose this information was not willful.

During a brief recess, the prosecutor was provided with names of four potential defense witnesses and a brief description of their testimony. When the court session resumed, the prosecutor stated he wanted to have his investigator contact the witnesses and would perhaps ask for a continuance and for sanctions if the investigator was unable to do so. The trial court stated: "Im not starting a trial only to continue it in the middle of trial. So if you need a continuance, now is the time to do that." The prosecutor responded that he did not want a continuance because an officer who witnessed one of defendants crimes was leaving for vacation the following Monday (December 10) and would not be returning until the week of January 7. Woodert stated that she "also want[ed] [the officer] to be available because theres things that we need to get out of him as well." The court asked Woodert if there were any potential defense witnesses in addition to the four already named. Woodert then provided five more witnesses names, explaining that four were character witnesses and the fifth was the person who had taken possession of the Pontiac van.

After further discussions regarding discovery, voir dire commenced. On December 6, a jury was impaneled and witnesses were called to testify. On December 7, the prosecution concluded its case-in-chief.

On December 10, 2001, the prosecutor filed a written motion to preclude defense witnesses and to instruct the jury pursuant to CALJIC No. 2.28. In his written motion and in argument to the court, the prosecutor asserted that names of additional potential witnesses had been provided on the second day of trial and that all of the defense witnesses had always been available, being friends or relatives of defendant. Woodert stated that "on November the 27th, I told the District Attorney, `Listen, theyve just decided to retain me finally. There was another attorney that had stepped in, and there was some confusion there as to whether or not Id even be trying the case. I said, `So Im going to ask the court for a continuance, to which he objected." The prosecutor argued that the late discovery provided by defendant was prejudicial to his ability to investigate defendants character and alibi and that even a continuance of one or two days would be inadequate to secure telephone records that might be important for witness impeachment.

The trial court stated that it would not exclude witnesses whose names were given to the prosecutor on the first day of trial. One of the names given to the prosecutor on the second day of trial was Stephanie Hightower, whom the prosecution had apparently interviewed on the morning of December 10. (The names of the other potential witnesses given to the prosecutor the second day of trial are not set forth in the record.) The subject of Hightowers proposed testimony was not described, but the prosecutor stated that she was a witness for whom telephone records would be necessary to test her credibility. The court then ruled that Hightower would be precluded as a witness at trial. It later instructed the jury pursuant to CALJIC No. 2.28.

CALJIC No. 2.28, as given to defendants jury, provided as follows:
"The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence.
"Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the Defendant failed to timely disclose the following evidence:
"The names of some of their witnesses and their intended statements. Although the Defendants failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.
"The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence."

We conclude that the trial court did not abuse its discretion by precluding Hightower as a witness and instructing the jury with CALJIC No. 2.28.

A defendant is required to disclose to the prosecutor "[t]he names and addresses of all persons, other than the defendant, he or she intends to call as witnesses at trial . . . ." (§ 1054.3, subd (a).) The disclosure is to be made at least 30 days before trial, and "[i]f the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately . . . ." (§ 1054.7.) Upon a showing of noncompliance, "a court may make any order necessary to enforce the provisions of [the discovery] chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." (§ 1054.5, subd. (c).) The decision of whether to impose sanctions and what sanctions are to be imposed lies within the trial courts sound discretion. (See People v. Jackson (1993) 15 Cal.App.4th 1197, 1203; People v. Wimberly (1992) 5 Cal.App.4th 773, 792.)

Here, Woodert appeared as counsel for defendant at arraignment on July 26, 1991, and continuously represented him through trial. On October 11, 2001, Woodert told the court that she would be ready to try the case in three weeks. Nonetheless, the first disclosure of potential witnesses made by Woodert was on December 5, 2001, more than a month after Woodert said she would be ready to start.

Citing People v. Walton (1996) 42 Cal.App.4th 1004 (disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3), defendant asserts that the duty to disclose had not been triggered on December 5 because Woodert had not yet spoken with the potential witnesses. But in Walton, a witness who had not been located because of an incorrect address on a field interview card was finally contacted at 9 p.m. following a day of voir dire, and opposing counsel was given the witnesss statement by 10 a.m. the next morning. (People v. Walton, supra, 42 Cal.App.4th at pp. 1016—1017.) That is not the situation here.

The section 1054.3, subdivision (a) requirement of disclosure of witnesses the defendant "`intends to call" includes "`all witnesses [a party] reasonably anticipates it is likely to call." (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11; accord, People v. Tillis (1998) 18 Cal.4th 284, 290.) And as has been said with respect to the addressees of potential defense witnesses, the "intends to call" language "should be construed to require the defense to provide the prosecution with the names and addresses of prospective defense witnesses to the extent this information is known to, or reasonably accessible to, the defense." (In re Littlefield (1993) 5 Cal.4th 122, 131, italics added.) In the absence of any indication to the contrary, we can conclude that Woodert had the names of potential witnesses well before the first day of trial. And we can infer that she had conducted substantial investigation by November 27, 2001, when she discussed items of discovery the prosecutor had not yet provided to her. Thus, even if Woodert did not have information about her witnesses 30 days before trial, there was no reason to wait until the trial actually commenced to announce for the first time that she planned to present character and alibi witnesses.

The trial court carefully considered the available alternatives for sanctions in light of Wooderts failure to interview her potential witnesses in a timely manner. To continue the trial until the return from vacation of the officer whom the prosecutor wanted to testify would have meant a delay of over a month. To impose monetary sanctions on Woodert would not have cured the prejudice suffered by the prosecution emanating from the inadequate amount of time available to investigate the numerous witnesses that defendant planned to present. And the sanction of witness preclusion was imposed only as to potential witness Hightower, the nature of whose testimony, or even which counts the testimony would go to, was not identified. Thus, unlike the situation of the potential witness in People v. Edwards (1993) 17 Cal.App.4th 1248, 1265, for whom a less restrictive alternative would be effective, no lesser sanction was available as to Hightower. And as explained by the prosecutor, direct prejudice would be suffered if Hightower were allowed to testify because there would be no time to secure telephone records that would be necessary for impeachment. (See People v. Jackson, supra, 15 Cal.App.4th at p. 1203.) In sum, the trial court did not abuse its discretion in either precluding Hightowers testimony or instructing the jury pursuant to CALJIC No. 2.28.

2. Ineffective Assistance of Counsel

As an alternative to the previous contention, defendant claims that trial counsel rendered ineffective assistance with respect to discovery obligations. The claim is unavailing.

"To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. [Citations.]" (People v. Kelly (1992) 1 Cal.4th 495, 519—520; accord, People v. Ledesma (1987) 43 Cal.3d 171, 215—218.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence [outside of] the record may be taken to determine the basis, if any, for counsels conduct or omission. [Citation.]" (People v. Fosselman (1983) 33 Cal.3d 572, 581—582; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266—267.)

The instant record fails to disclose affirmatively that no rational tactical purpose or explanation existed for Attorney Wooderts approach to discovery. For example, Woodert may have had substantial problems with some of her witnesses and thought it better to run the risk of incurring sanctions than providing the prosecution with sufficient time to investigate those witnesses. Accordingly, defendants claim of ineffective counsel, raised exclusively as an issue on appeal, must fail. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219—1220.)

3. Questioning of Character Witness

The defense witness who worked for the Board of Education testified that he knew defendant to be "extremely honest and a man of integrity . . . ." Over defense objection, the prosecutor asked on cross-examination: "Sir, if you found out the defendant attempted to kidnap three different children, would that change your opinion of his character?" The witness answered in the affirmative, explaining: "Id be appalled. Id be very distrustful if I found that out." We reject defendants contention that the failure to sustain his objection requires reversal.

We are aware of only one California case that directly addresses the propriety of cross-examining a character witness on whether his or her opinion of the defendant would change if the defendant had done certain acts. But in that case, People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, the character witness obviously knew that the defendant had been charged with a crime, and "the witness testimony [was] delivered in the present tense. . . . Whatever [the defendants] reputation might have been before the charge, after the charge it is at least dubious. Thus where the character witness nonetheless states under oath that such defendants reputation for honesty is presently good, there is a strong suggestion (to say the least) that he is not a credible witness. And on cross-examination, such lack of credibility may be demonstrated by asking him whether he in fact has heard of the commission of the offense for which the defendant is on trial." (Id. at p. 527.)

More recently, federal jurisdictions have been in agreement that it is improper for the prosecutor to pose hypothetical questions to a defense character witness that assume the defendants guilt. (See, e.g., U.S. v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1120—1121; U.S. v. Guzman (11th Cir. 1999) 167 F.3d 1350, 1352.)

We conclude that the federal opinions are persuasive and defendants objection should have been sustained. Nonetheless, the error was harmless. As noted by the prosecutor in argument before the trial court on defendants objection, because defendants witness was to give "character evidence to show that this defendant could not have committed this offense, [the question] goes directly to his bias and to his credibility. As to his answer whether or not it would change the opinion, if it does, that [sic] it is more credible. If it doesnt, then his bias is extremely evident." The witness here gave the "more credible" answer. Defendant was not prejudiced.

4. Juror Misconduct

In support of a motion for new trial, defendant submitted a declaration from a member of the jury that included the following:

"Both in January of 2002 and in March of 2002, I informed [Woodert] that I felt pressured into convicting the defendant on counts 1, 2 and 4 by some of the jurors who had holiday plans and did not want deliberation to interfere with their travel plans. I expressed to Ms. Woodert that I too had holiday plans, but would have cancelled them to insure that an innocent man was not convicted.

". . . I also told Ms. Woodert that I mentioned to other jurors that there were many things regarding the evidence presented by the prosecution that did not add up and that I was undecided. Specifically, I believed the identification by Christina E. on both counts was unreliable, because I believed that Christina E. `memorized defendants face from the photo-showup and then proceeded to identify him on subsequent occasions because she had seen him in the photo-showup. It was my jurors belief that the defendant was not the individual that Christina E. saw relative to counts 1 and 4. Whereupon, some jurors, expressed a desire to `get home for the holidays.

". . . Again, I felt pressured to find the defendant guilty on counts 1, 2 and 4 and accept the interpretation of the jury instructions by the foreperson, because he was an attorney and the other jurors told me `hes got to be guilty. However, I do not believe that the prosecution proved his case beyond a reasonable doubt. I have maintained that belief throughout the deliberation process, from the time the verdict was rendered to the present."

When the motion was heard, the juror who wrote the declaration was in court. Defendant requested an evidentiary hearing on the misconduct issue. In denying defendants motion and request, the trial court made reference to the rule prohibiting consideration of jurors mental processes during deliberations. We reject defendants contention that the ruling constituted error.

The relevant law was summarized in People v. Sanchez (1998) 62 Cal.App.4th 460, 475—476: "When a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. `First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112—113 [].) In making the determination as to the admissibility of the evidence presented, including declarations of jurors, `. . . the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150. (Id. at p. 112.)

"Evidence Code section 1150, subdivision (a) provides as follows: `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.

"Evidence Code section 1150 permits evidence from jurors regarding `"overt acts"—that is, such statements, conduct, conditions, or events as are "open to sight, hearing, and the other senses and thus subject to corroboration" [but jurors] may not testify to "the subjective reasoning processes of the individual juror . . . ." [Citation.] (In re Stankewitz (1985) 40 Cal.3d 391, 398 [].) Evidence Code section 1150 `may be violated not only by the admission of jurors testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the jurors mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150. (People v. Hedgecock (1990) 51 Cal.3d 395, 418—419 [].)" (People v. Sanchez, supra, 62 Cal.App.4th at pp. 475—476.)

And as further explained by the Supreme Court in People v. Hedgecock, supra, 51 Cal.3d at page 415, "when a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. We stress, however, that the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact."

Here, the only evidence presented to the trial court regarding what had transpired during deliberations was based on the declaration of Juror No. 7, quoted above. Thus, there were no "material, disputed issues of fact" that needed to be resolved.

Citing In re Stankewitz, supra, 40 Cal.3d 391, defendant places special emphasis on the influence of the lawyer/foreperson, characterizing it as "an improper receipt of a statement of law not given to the jury in the instructions of the court." But in Stankewitz, juror declarations established that one juror told the others that as a police officer for over 20 years he knew the law and that the law did not require a defendant to intend to deprive the victim of property permanently in order to constitute robbery. (40 Cal.3d at p. 396.) In contrast, all we have in this case is Juror No. 7s hearsay declaration that the foreperson was a lawyer whose interpretation of instructions the declarant felt pressured to accept and that the lawyer told other jurors that the defendant has "got to be guilty."

Consideration of the pressure felt by Juror No. 7, both as to interpretation of the instructions and with respect to other jurors holiday plans, is barred by Evidence Code section 1150. In addition, not only did Juror No. 7 fail to address how interpretation of the instructions resulted in Juror No. 7 feeling pressured, there is no mention of what the forepersons interpretation of the instructions actually was. Thus, in contrast to the purportedly authoritative but ultimately incorrect statement of law by the juror in Stankewitz, there is no indication of whether the foreperson here claimed any special authority or expertise, by virtue of being a lawyer, or of what the foreperson stated the law to be. On this record, because there was no possibility that the foreperson or any other juror engaged in what would be considered misconduct, the trial court did not err in refusing to order an evidentiary hearing on the issue.

DISPOSITION

The judgment is affirmed.

We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.


Summaries of

People v. Hezekiah

Court of Appeals of California, Second Appellate District, Division One.
Nov 21, 2003
No. B159630 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Hezekiah

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DENNIS MENELIK HEZEKIAH…

Court:Court of Appeals of California, Second Appellate District, Division One.

Date published: Nov 21, 2003

Citations

No. B159630 (Cal. Ct. App. Nov. 21, 2003)