Opinion
D072475
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL ONTIVEROS, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel, Meredith White and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264642) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel, Meredith White and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Israel Ontiveros and codefendant Charles Keller of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true allegations that the assaults were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Ontiveros to 19 years 8 months in prison. Thereafter, Ontiveros unsuccessfully petitioned for the release of the jurors' personal identifying information.
Keller is not an appellant in this case.
Undesignated references are to the Penal Code.
Ontiveros appeals, contending the court erred in denying his petition to release juror identifying information, and the error violated his federal constitutional right to due process. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited issue raised on appeal, we briefly summarize the facts of the underlying crime. In September 2015, Ontiveros was incarcerated in the San Diego central jail. He was not a gang member, but he associated with the "Deadskins" gang, which includes former skinheads. Ontiveros and several Deadskins members assaulted two inmates.
Following trial, Ontiveros joined Keller's petition to release the personal identifying information of all jurors under Code of Civil Procedure sections 206 and 237 "on the grounds that substantial suspicion of juror misconduct has come to light," and he needed the information to "investigate, obtain and present competent evidence of that misconduct." Ontiveros argued three circumstances warranted release of juror identification: (1) When the verdict was returned in court, five or six female jurors were "weeping profusely;" (2) a juror, who was dismissed during the trial due to her husband's illness, wrote a letter to the court stating she would have voted "not guilty" because the prosecution failed to prove its case beyond a reasonable doubt; and (3) Juror No. 10 informed Keller by e-mail after the trial that "two of the jurors had announced near the beginning of the trial . . . that the defendants were both guilty and that they were going to find the defendants guilty."
The only declaration that Keller submitted was from his counsel, who mentioned the fact that the female jurors wept profusely when the verdict was announced, and that the dismissed juror had written a letter to the court stating she would have voted to find the defendants not guilty. The attorney also stated Keller informed him after trial that "[Keller] had additional evidence of juror misconduct and had been in touch with [Juror No. 10,] who informed him that two of the jurors had announced near the beginning of trial, shortly after the jury was selected and impaneled, that the defendants were both guilty and that they were going to find the defendants guilty." The attorney said Juror No. 10 had turned over to a defense private investigator her e-mail correspondence with Keller.
The People opposed the petition, arguing petitioners did not meet their prima facie burden of showing good cause for the release of juror identifying information. The People contended petitioners had erroneously claimed in the petition that Keller had discussed juror misconduct by e-mail with Juror No. 10, when in fact they discussed the matter by telephone. The People maintained it was Keller who first raised the topic of juror misconduct with Juror No. 10. The People submitted two recordings of telephone calls between Keller and Juror No. 10. In the first telephone call, Juror No. 10 recounted events during jury deliberations: "And the ladies next to me, um the African[-American] ladies, they were like, they weren't changing their minds[.]" Keller immediately replied, "I know, their minds were made up way early." Juror No. 10. added, "Yea, I was like so upset with them because they were nice to me in the beginning like when I first went to trial with them. . . . They were like the only ones talking to me during the whole two weeks and then when they found out that like when I was thinking something else, they just, like they didn't even talk to me anymore. . . . They were really rude to me after. I was pissed."
During the second telephone call, Keller said of an African-American juror: "From halfway through, quarter of the way through, she was against it. Like she was looking like she was falling asleep at certain times." Juror No. 10 replied, "From the beginning, she was like, I already knew they were guilty, like, and then um, it was rude because during, during our verdict [sic], she was reading a book[.]" The People argued these conversations "make it clear that it was [ ] Keller who first" claimed juror misconduct and that Juror No. 10 made "no reference to any conversation that occurred prior to deliberations." The People concluded that Juror No. 10 "never mention[ed] any failure to presume innocence, any pre-judgment of the case, or any misconduct on the part of any jurors."
The People further argued there was a compelling safety interest against disclosure. Specifically, Juror No. 10 had complained of her problems with her children's father, including an incident where he threw a set of keys at her face. Keller subsequently intervened by having "Jay," a fellow inmate and friend of Keller's, tell Juror No. 10 by telephone, "[Keller] is a little worried about you and he wanted me to ask you, does someone need to come talk to ol boy, like is he treating you bad or treating you mean or anything like that?" The People argued that conversation showed Keller could deliver a message to someone outside of custody. The People also argued that Keller's "resentment" toward the African-American jurors and his affiliation with the Deadskins evidenced a compelling interest against disclosure to protect juror safety.
At the hearing, Keller's counsel argued he met his prima facie burden for requesting juror identifying information because, "this is one of those situations where you don't know what you don't know. You smell something. It doesn't smell right. You want to investigate it. And that's kind of where we are. . . . [¶] . . . [Juror No. 10] expressed the view that two of the other jurors had become fixed on guilt long before deliberations had commenced. Now, that's [Keller's] understanding of what a juror was telling him. [¶] That may or may not be accurate or true or exactly right. . . . [¶] So that's kind of where we're at in this case. We've heard rumblings. There's a smell. We want to investigate it. That's all we want to do. We want to . . . speak with the various jurors and ascertain whether or not the suspicions, strong or less strong suspicions are supported by fact." Keller's counsel continued: "Maybe Mr. Keller engineered the whole thing. Maybe he manipulated the juror. Or maybe he didn't. Maybe this juror is manipulating him. Or maybe she's covering up. We just don't know. We want to find out. There's something in the air that is very suspicious. We want to ferret it out." Ontiveros's counsel added that the court could mitigate juror safety concerns with a protective order allowing only counsel and private investigators to access the juror identifying information.
The People argued there was no jury misconduct: "We actually have the recordings [of telephone conversations between Keller and Juror No. 10]. And what occurred, when you listen to these recordings, what happened is as we saw in court. A jury heard a jury trial. A jury went back and deliberated. And clearly at least two of the jurors, according to [Juror No. 10's] perspective, believe the defendants were guilty. And the defendants were found guilty by all 12 jurors. The jury was polled, and every juror agreed."
The court denied the petition, reasoning that the defense "ha[d] failed to make a prima facie showing of good cause to disclose personal juror information. The only declaration attached is that of [Keller's counsel] containing double hearsay that his client . . . told [him] . . . that Juror No. 10 allegedly overheard two of the jurors had announced near the beginning of trial shortly after jury was selected in the panel that the defendants were both guilty and that they were going to find the defendants guilty." The court continued, "Nowhere in the e-mails or recorded jail conversations between Defendant Keller and Juror No. 10 is there any affirmative statement wherein Juror No. 10 state[d] anything like . . . [']two of the jurors had announced near the beginning of the trial shortly after the jury was selected and impaneled that the defendants were both guilty and that they were going to find the defendants guilty.['] [¶] At best, the e[-]mails between [ ] Keller and Juror No. 10 show that it was [Keller] who suggested to Juror No. 10 that perhaps some of the jurors had prejudged the case." The court concluded Juror No. 10's comment that other jurors indicated defendants were guilty "from the beginning" was ambiguous, as Juror No. 10 could have made them at the beginning of trial or at the beginning of jury deliberations. The court reasoned that even if Juror No. 10 made the comments at the beginning of trial, that juror did not share her doubts with others. The statements were the juror's unexpressed internal thought processes that Evidence Code section 1150 deems inadmissible.
Evidence Code section 1150 states: "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, or event upon a juror either in influencing [her] to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
The court found Ontiveros's other arguments about the dismissed juror's letter and the weeping jurors were "very de minimis." It pointed out the dismissed juror did not hear closing arguments or participate in juror deliberations. It explained that the weeping jurors "could have been crying for any number of reasons. Fear of the two defendants, sadness that these young defendants were appearing to throw their lives away with gang violence, et cetera." Finally, the court found nondisclosure was proper because Keller "definitely harbor[ed] some kind of resentment" towards one of the African-American jurors. It further found that "there was ample evidence presented at trial, that [ ] Keller is a shot caller within the Deadskins Gang . . . [and] appears to have some power to accomplish gang activity outside the confines of the jail."
A gang expert testified that a "shot caller" refers to a gang leader with power and authority to direct other inmates. --------
DISCUSSION
Ontiveros contends he made a prima facie case for disclosure of the juror identifying information, and that in denying his petition the court "misconstrued the nature of the showing required under the applicable statutes." Ontiveros also argues the court wrongly concluded that Juror No. 10's out-of-court statements were inadmissible hearsay. He claims these statements were not hearsay because they were not offered for their truth but rather to show good cause to contact jurors. He concedes that "the defense did not obtain a declaration from Juror No. 10," but argues, "her recorded conversation with Keller indicated her agreement that the Black female juror, 'From the beginning, she was like, I already knew they were guilty.' While it is not clear when the juror made this comment, there is certainly an indication that she was prejudging the case, and may well have expressed that to the jurors."
Criminal defendants may petition the court for a hearing to release juror identifying information to develop a motion for new trial or any other lawful purpose. (Code Civ. Proc., § 206, subd. (g); People v. Carrasco (2008) 163 Cal.App.4th 978, 989; People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors' personal identifying information." (Code Civ. Proc., § 237, subd. (b); McNally, at p. 1430.) And, the alleged misconduct must be "of such a character as is likely to have influenced the verdict improperly." (Evid. Code, § 1150, subd. (a).) The hearing " ' "should not be used as a 'fishing expedition' to search for possible misconduct." ' " (McNally, at p. 1431, quoting People v. Avila (2006) 38 Cal.4th 491, 604.) A hearing "should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (Avila, at p. 604.)
If the petitioner establishes a prima facie showing of good cause, the court must then determine whether the record establishes a compelling interest against disclosure. (Code Civ. Proc., § 237, subd. (b); People v. Carrasco, supra, 163 Cal.App.4th at p. 990.) A compelling interest includes protecting jurors from threats or danger of physical harm. (Carrasco, at p. 990.) We review an order on a motion for disclosure of juror identifying information under the deferential abuse of discretion standard. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097; Carrasco, at p. 991.)
The court did not err in denying the petition because there was no competent evidence indicating juror misconduct had occurred. The California Supreme Court has held that juror affidavits are admissible to establish jury misconduct: "Admission of jurors' affidavits within the limits set by [Evidence Code] section 1150 protects the stability of verdicts, and allows proof by the best evidence of misconduct on the part of either jurors or third parties that should be exposed, misconduct upon which no verdict should be based." (People v. Hutchinson (1969) 71 Cal.2d 342.) "California courts have consistently held that properly executed juror affidavits are required to establish jury misconduct . . . . As explained in People v. Dykes (2009) 46 Cal.4th 731, 810-811, . . . 'ordinarily a trial court does not abuse its discretion in declining to conduct an evidentiary hearing on the issue of jury misconduct when the evidence proffered in support constitutes hearsay.' " (People v. Bryant (2011) 191 Cal.App.4th 1457.) Here, the attorney's declaration contained hearsay statements made to him by Keller regarding what Juror No. 10 reportedly heard from two African-American jurors during deliberations. Accordingly, the court did not err in denying the petition based on this declaration.
In any event, the trial court reviewed the e-mail correspondence and telephone calls between Keller and Juror No. 10 and concluded the statements attributed to the African-American jurors were inadmissible under Evidence Code section 1150, as they were directed at their subjective reasoning processes. From the context of Juror No. 10's statement, we conclude the jurors discussed their views of the verdict during deliberations, as Juror No. 10 specifically asserted that at first she got along with the other jurors and it was only after two weeks, when deliberations began, that their relationship deteriorated. Juror No. 10's statement did not establish that the other jurors "had ignored further evidence, argument, instructions, or the views of other jurors." (People v. Allen & Johnson (2011) 53 Cal.4th 60, 73.) "Although section 1122 requires jurors not to form an opinion about the case until it has been submitted to them, 'it would be entirely unrealistic to expect jurors not to think about the case during the trial . . . .' [Citation.] A juror who holds a preliminary view that a party's case is weak does not violate the court's instructions so long as his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions expressed during deliberations." (Allen & Johnson, at p. 73.)
Although Juror No. 10 stated that one of the jurors read a book during deliberations, we may not conclude from the evidence presented that the juror necessarily also failed to meaningfully participate in the deliberations. But even if we found the juror committed misconduct, we would find no prejudice. "Where the misconduct is not 'inherently likely' to have affected the vote of any of the jurors, prejudice is not shown." (People v. Hord (1993) 15 Cal.App.4th 711, 727.) "Still, whether an individual verdict must be overturned for jury misconduct or irregularity ' " 'is resolved by reference to the substantial likelihood test, an objective standard.' " ' [Citation.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.] [¶] The standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts [citation]. . . . Moreover, the jury is a 'fundamentally human' institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] '[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection . . . . [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.' " (In re Hamilton (1999) 20 Cal. 4th 273, 296.) Nothing in this record indicates it is substantially like that a juror reading a book during deliberations was substantially likely to affect other jurors' votes; therefore, no prejudice is shown.
The court separately concluded that "[a]t best, the e[-]mails between [ ] Keller and Juror No. 10 show that it was [Keller] who suggested to Juror No. 10 that perhaps some of the jurors had prejudged the case." The court did not err in finding that it was Keller, and not Juror No. 10, who first proposed juror misconduct. On this record, Juror No. 10 did not make an independent claim of juror misconduct. Rather, she merely agreed with Keller's opinion on that point, thus undermining the reliability of her account.
We reject Ontiveros's contention the trial court wrongly relied on People v. Cook (2015) 236 Cal.App.4th 341 or People v. McNally, supra, 236 Cal.App.4th 1419. These cases state relevant and well-settled legal propositions regarding the requirements of a good cause showing and the balance of interests in disclosing juror identifying information. The cases disfavor petitions amounting to a "fishing expedition" (People v. Avila, supra, 38 Cal.4th at p. 604, accord, People v. McNally, supra, 236 Cal.App.4th at p. 1431) with only "speculative, conclusory, vague, or unsupported" allegations of juror misconduct. (People v. Wilson (1996) 43 Cal.App.4th 839, 852, accord, Cook, at p. 346.) Here, counsels' statements supporting the petition combined with the lack of substantive evidence produced only speculative, conclusory, vague, or unsupported allegations of juror misconduct. Thus, the trial court did not abuse its discretion in denying the petition.
Ontiveros's arguments regarding the dismissed juror's comments are of no consequence because that juror did not hear the closing arguments and did not participate in the deliberations that ultimately led to the guilty verdicts. Ontiveros also failed to establish how jurors weeping after deliberations amounted to juror misconduct. The trial court reasonably explained that the jurors "could have been crying for any number of reasons."
In light of our conclusion that Ontiveros failed to make a prima facie case justifying the release of the juror identifying information, we need not address Ontiveros's contention the court erroneously denied the petition based on safety concerns. We likewise need not address Ontiveros's contention he was denied a fair trial by an impartial jury. His argument, which we set forth in its entirety, is circular: "[Ontiveros] is entitled to a fair trial by an impartial jury. [Citation.] Federal law holds that a defendant has the right to litigate the issue of juror impartiality after a verdict, and to employ the process of the court in doing so. The United States Supreme Court has made it clear that a defendant is entitled by the due process clause to a meaningful hearing into allegations of juror bias, and that due process requires [the] court to allow inquiry into potential jury misconduct." Ontiveros "makes no showing of how the court's ruling denied him a fair trial." (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1323.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. IRION, J.