Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF119300A Michael G. Bush, Judge.
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, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Levy, J., and Kane, J.
In February 2008, a jury convicted appellant, Curtis Devon Perry, of three counts of making a criminal threat (Pen. Code, § 422) and individual counts of resisting arrest (Pen. Code, § 148, subd. (a)(1)) and challenging another person in a public place to fight (Pen. Code, § 415, subd. (1)). In a separate proceeding, the court found true allegations that appellant had served two separate prison terms for prior felony convictions, within the meaning of Penal Code section 667.5, subdivision (b). The trial court imposed a prison term of five years eight months.
We take judicial notice of those records in People v. Curtis Perry, Kern County Superior Court case No. BF119300A, that have not been made part of the record on appeal. (Evid. Code, §§ 452, subd. (d); 459, subd. (a).)
Appellant appealed, and on appeal, this court, in an unpublished decision filed October 14, 2009, reversed one of appellant’s convictions of violating Penal Code section 422 and remanded the matter for resentencing.
On March 10, 2010, appellant filed a “Petition for Order Disclosing Personal Juror Identifying Information” (Petition) under Code of Civil Procedure section 237. (Unnecessary capitalization and emphasis omitted.)
All further statutory references are to the Code of Civil Procedure.
On March 25, 2010, the court ruled that it lacked authority to consider the Petition and resentenced appellant to five years eight months in state prison. The instant appeal followed.
On appeal, appellant contends the court erred in failing to conduct a hearing on the Petition, and that the judgment must be vacated and the matter remanded with directions to the trial court to conduct a hearing. We will affirm.
FURTHER PROCEDURAL BACKGROUND
Appellant filed the Petition and the supporting declaration of Kern County Deputy Public Defender Tony V. Lidgett on March 10, 2010. In the Petition, appellant sought an order that the names, addresses, and telephone numbers of the jurors who rendered the verdict in the instant case be disclosed to his counsel. He asserted that he needed this information so that his counsel could “conduct further investigation into the jury misconduct.”
In the supporting declaration, attorney Lidgett averred as follows:
Approximately one month prior to the execution of the declaration, the mother of a girl on his daughter’s club volleyball team approached him at practice and stated she remembered Lidgett because she had been a juror in the instant case.
At a subsequent practice, approximately two weeks prior to the execution of the declaration, Lidgett again spoke with the former juror. He told her that appellant was “back for resentencing, ” and asked her “if she recalled anything unusual that occurred during deliberations.” The former juror stated she was “surprised” that one of the other jurors, a woman, had “changed her mind.”
Lidgett “discussed the matter in more detail” with the former juror one day prior to executing the declaration. She “could not say with certainty” whether the holdout juror was “forced” into changing her mind, but “when they adjourned the [night before the day the jury reached a verdict], the holdout juror was adamant that the defendant was not guilty.”
Because of the position taken by the holdout juror, the jury foreperson “wrote a note pertaining to a hung jury” and gave it to the court “immediately when the jury reconvened the next morning.” The jury “did not discuss the case any further”; “[a] ballot was then taken again”; and the vote was unanimous for conviction.
Lidgett averred: “When I asked the [former] juror as to why she thought the lone holdout changed her mind she told me that the holdout must have talked with someone that night about the case because when she left on that night she was adamant as to [appellant’s] innocence and that nothing was going to change her mind. When the holdout returned in the morning, she voted guilty even though no deliberations were done that might have convinced her to change her mind.”
At the resentencing hearing, the court, in ruling on the Petition, stated: “The Court of Appeal[] did not comment on the sentence that the defendant received on the other counts. So I don’t believe that the motion for juror identifying information is appropriate... in that I think you would have to go by writ of habeas corpus. You can certainly attack the judgment, and I’m not suggesting you can’t, but I think you have to go through a writ of habeas corpus on that. So I think we are here simply to resentence on the remaining counts.”
DISCUSSION
Appellant contends the court abused its statutory discretion and violated appellant’s right to due process of law under the United States Constitution by failing to conduct a hearing on the Petition.
Disclosure of juror personal identifying information (names, addresses and telephone numbers) is governed by sections 206 and 237. In a criminal case, records containing juror identifying information are “‘sealed, ’” i.e., “extracted or otherwise removed from the court record.” (People v. Carrasco (2008) 163 Cal.App.4th 978, 989, citing § 237, subd. (a)(2)-(3).) Section 206, subdivision (g), provides, in relevant 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 indentifying information … for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.… The court shall consider all requests for personal juror identifying information pursuant to Section 237.”
Under section 237, subdivision (b), the petition must be accompanied by “a declaration that includes facts sufficient to establish good cause” for disclosure of the information. If “a prima facie showing of good cause” is made and there is no “compelling interest against disclosure, ” the court “shall set the matter for hearing.” (Ibid.) If a hearing is set, the trial court shall give the former juror or jurors notice they may appear in person or in writing to protest the granting of the petition. (§ 237, subd. (c).) A former juror’s protest shall be sustained if, in the court’s discretion, “the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure …, or the juror is unwilling to be contacted by the petitioner.” (§ 237, subd. (d).)
People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes) sets forth the applicable test for good cause in this context. The party seeking disclosure must “set[] forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the juror[] through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.” (Id. at p. 552; accord, People v. Wilson (1996) 43 Cal.App.4th 839, 850-852.) “Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information as a matter of right in each case. This rule safeguards both juror privacy and the integrity of our jury process against unwarranted ‘fishing expeditions’ by parties hoping to uncover information to invalidate the jury’s verdict. At the same time, it protects a defendant’s right to a verdict uninfluenced by prejudicial juror misconduct by permitting, upon a showing of good cause, access to juror information needed to investigate allegations of juror misconduct.” (Rhodes, at p. 552, fn. omitted.)
Even though Rhodes was decided before the current version of section 206 and the enactment of section 237, the Rhodes test remains applicable. (People v. Carrasco, supra, 163 Cal.App.4th at p. 990; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321, fn. 8.)
We assume without deciding that, as appellant argues, the court erred in concluding it lacked authority to entertain appellant’s section 237 request for juror identifying information. As we explain below, however, any such error was harmless.
We recognize that it is misconduct for a juror, during the trial, to discuss the case with a nonjuror (People v. Danks (2004) 32 Cal.4th 269, 304), or to receive information about the case from any extraneous source (People v. Nesler (1997) 16 Cal.4th 561, 578). However, appellant provides nothing more than speculation that such misconduct occurred here. A person, even one who expresses both a strong belief and the resolve not to change that belief, may nonetheless, for any number of reasons, change his or her mind. The mere fact, if it be a fact, that a juror who was “adamant” in her position that appellant was not guilty changed her mind overnight, was not sufficient to give rise to a reasonable belief that the juror’s change of mind was the result of impermissible contact with some other person or source of information. We conclude, as a matter of law, that appellant has not made an adequate preliminary showing of good cause, and that in the absence of the required preliminary showing, the setting of the matter for a hearing under section 237 would have constituted an abuse of discretion. Therefore, any error in the court’s failure to address appellant’s request for juror identifying information was harmless. And because (1) appellant suffered no violation of his rights under sections 206 and 237 to proceed to a hearing on his request for juror indentifying information; and (2) the statutory scheme properly balances jurors’ privacy interests and a criminal defendant’s right to a verdict uninfluenced by prejudicial juror misconduct, appellant suffered no violation of his due process rights.
DISPOSITION
The judgment is affirmed.