Opinion
A150278
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN DAVID JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR286021)
Defendant John David Johnson appeals from the denial of his post-judgment motion under Code of Civil Procedure sections 206 and 237 seeking to compel the disclosure of personal juror identifying information. We affirm.
Unless otherwise noted, all further statutory references are to the Code of Civil Procedure.
BACKGROUND
In July 2014, defendant was convicted by a jury of felony child endangerment and related counts, arising from an incident in which he was arrested for driving under the influence of alcohol with his son in his car. Two years later, in July 2016, and while his appeal from the judgment of conviction was pending, his court-appointed appellate counsel filed a petition in superior court under sections 206, subdivision (g) and 237, subdivision (b) seeking the disclosure of personal juror identifying information, as part of an investigation into juror misconduct as a possible ground for a habeas corpus petition. Those code provisions, together, authorize the disclosure of jurors' names, addresses and telephone numbers to a criminal defendant in appropriate circumstances, on an appropriate showing. Defendant's motion was based on a declaration by the defendant describing a statement he overheard by one of the jurors, after the jury had been discharged, reporting that the jury foreperson had independently researched the law during jury deliberations and then shared the results with his fellow jurors. The trial court denied the motion without an evidentiary hearing, and defendant then initiated this appeal.
Section 206, subdivision (g) states: "Pursuant to Section 237, a defendant or defendants counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237."
Section 237, subdivision (b), in turn, permits "[a]ny person [to] petition the court for access to these records." It specifies the procedure for doing so: "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. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure." (Ibid.)
DISCUSSION
Defendant challenges the trial court's ruling on a number of grounds, but we address only one. One basis the trial court gave for denying defendant's motion was that the motion could have been brought much sooner, comments we construe as a ruling the motion was untimely. Specifically, the court observed that defendant "was in custody for probably greater than a year's time post-conviction, and during which time he was always represented by a subsequent attorney, [name], from the Public Defender's Office. And this issue could have been raised at any time in a motion for new trial and proceedings and it wasn't." Defendant now argues that his motion was timely, but we disagree.
The People have moved to dismiss this appeal, arguing that the ruling is non-appealable under People v. Diaz (2015) 235 Cal.App.4th 1239. We previously took the dismissal motion under submission to be decided in connection with the merits and we now deny it. It is unnecessary to decide whether, as defendant argues, Diaz's jurisdictional analysis is limited to its facts, because even if the ruling here were non-appealable we would exercise our discretion to treat defendant's appeal as a petition for writ of mandamus. Defendant has asked us to do this as an alternative to dismissing the appeal, and the People state in their motion papers that they "do not dispute that appellant may seek relief through an extraordinary writ."
We review the denial of a request to compel the disclosure of juror identifying information deferentially, for abuse of discretion. (People v. Johnson (2013) 222 Cal.App.4th 486, 492 (Johnson).)
Section 237 "does not contain an express time requirement but there is 'an implied timeliness requirement, albeit only a limited one.' " (Diaz, supra, 235 Cal.App.4th at p. 1243.) Although each case is of course unique, the parties have cited authorities where trial court discretion to deny a request as untimely has been upheld for a delay as short as six weeks after conviction (see People v. Duran (1996) 50 Cal.App.4th 103, 122-123; see also People v. Atkins (1988) 203 Cal.App.3d 15, 28 [41 days], disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 322), and where a delay of six years was held untimely as a matter of law (see Diaz, at pp. 1242-1243).
Defendant argues his motion was timely under Johnson, which involved a delay of 13 months. (See Johnson, supra, 222 Cal.App.4th at p. 490.) Johnson is distinguishable, however. In that case, the trial court denied the motion seeking juror identifying information on other grounds, and for the first time on appeal, as an alternate basis to affirm, the People argued the motion had been untimely. In that procedural context, the court of appeal rejected the proposition that the motion should have been denied as untimely. (See id. at pp. 497-498.) Johnson thus did not involve the question whether the trial court had discretion to deny the motion as untimely, which is the issue here. Rather, in effect, the court of appeal rejected only the proposition that the trial court had no discretion to grant the motion. Furthermore, the 13-month delay in Johnson is considerably shorter than the delay involved here, and defendant does not explain how the circumstances are comparable.
Here, defendant brought his motion requesting information concerning juror identities two years after he overheard the comments by a juror that formed the basis for his motion, one year and nine months after his trial counsel had been relieved of his duties and a deputy public defender had been substituted in as defendant's new counsel, and nearly a year after his appellate counsel who filed the motion had been appointed to represent him in this court. And his papers below contained no explanation of the reason for this delay in seeking juror information. Johnson does not compel reversal in these circumstances, defendant cites no authority that a trial court lacks discretion to deny a request after such a considerable period of delay, and defendant makes no argument as to why we should so hold. So, for these reasons, we cannot say the trial court abused its discretion in denying defendant's motion.
Defendant cites to the record in his prior appeal (No. A145084), of which we take judicial notice (see People v. Garner (2016) 244 Cal.App.4th 1113, 1116, fn. 2), reflecting that several months after trial, on October 10, 2014, he asked the trial court to relieve his trial counsel on the ground of ineffective assistance of counsel, his trial counsel consented, and the court substituted a deputy public defender as his new counsel. --------
DISPOSITION
The October 13, 2016 order denying defendant's motion for disclosure of juror identifying information is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.