Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kings County No. 05CM5577, Thomas DeSantos, Judge.
Susan D. Shors, 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, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
STATEMENT OF THE CASE
On July 5, 2006, the Kings County District Attorney filed a second amended information in superior court charging appellant Antoevino Rocky Serna as follows:
Count 1--murder (Pen. Code, § 187, subd. (a)) for the benefit of a criminal street gang (§ 190.2, subd. (a)(22));
All statutory references are to the Penal Code unless otherwise noted.
Counts 2 and 4--attempted murder (§§ 187, subd. (a), 664)); and
Counts 3 and 5--assault with a firearm (§ 245, subd. (a)(2)).
As to counts 1, 2 and 4, the district attorney specially alleged that appellant personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)).
On the same date, appellant was arraigned, pled not guilty to the substantive counts of the amended information and denied the special allegations.
On September 12, 2007, jury trial commenced.
On October 2, 2007, the jury returned verdicts finding appellant guilty of the substantive counts and finding the special allegations to be true.
On November 29, 2007, defense counsel filed a petition to compel release of juror identifying information based on counsel’s belief that one of the jurors slept through deliberations (Code Civ. Proc., §§ 206, 237).
The petition indicated that “Juror #11 slept through jury proceedings and had to be continually advised to wake up.”
On December 10, 2007, the court denied appellant’s motion, denied appellant probation, and sentenced him to state prison for a total indeterminate term of life without the possibility of parole plus 89 years. As to count 1, the court imposed the term of life without parole plus 25 years to life for the firearm discharge enhancement (§ 12022.53, subd. (d)). As to counts 2 and 4, the court imposed consecutive indeterminate terms of seven years to life plus 25 years to life for the firearm discharge enhancements (§ 12022.53, subd. (d)). The court imposed and stayed sentence on counts 3 and 5 pursuant to section 654. The court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole, imposed a $100 court security fee, and awarded 714 days of custody credits.
Before staying the sentence on those counts, the court imposed the upper term of four years on count 3 plus four years for the firearm enhancement (§ 12022.5, subd. (a)(1)) and five years for the great bodily injury enhancement (§ 12022.7, subd. (b)). The court imposed a consecutive term of one year on count 5, plus a term of 16 months for the firearm enhancement (§ 12022.5, subd. (a)(1)) and three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).
On December 19, 2007, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On the evening of December 23, 2005, appellant and his friends, Ernest Warren, Emanuel “Heeter” Jackson, Elmo Wartson, Lawrence Flax and Marvin Townsend, were talking at the corner of Shaw Place and East view Road in Hanford. While the men were gathered at the corner, Celeste Becerra and Jesus Nuno were holding an engagement party at their home across the street. The home had a Shaw Place address and the party was for Ruben Garcia and Flora Aguiniga. Angel Aguiniga Puga, Daniel Gonzales and Veronica Morales were among the party guests and music from a car radio was playing.
At some point in the evening, appellant and his friends walked across the street and stood next to the fence separating the yard of the Shaw Place home from the sidewalk. Wartson asked Nuno to turn down the music because loud music would draw attention from Hanford Police. Garcia, Puga and Becerra walked up and stood behind Nuno. Nuno indicated he would lower the volume of the music and people from the two groups began shaking hands over the fence. According to Becerra, the men outside the fence said they were trying to handle business. Once Nuno turned down the music and the groups exchanged handshakes, Becerra thought the matter had been resolved.
At some point before the handshakes, appellant went into the yard and stood next to Gonzales, who tried to engage appellant in conversation. The two men were located behind Nuno, Garcia, Puga and Becerra. After a time, appellant took a few steps backward, then walked up to Garcia and fired several shots from a handgun at Garcia’s head. Garcia died later that day. Appellant also shot Puga in the back, causing paralysis from the chest down. Appellant shot Nuno in the head, stomach, and leg. Before the shooting occurred, Puga heard someone say, “This is our hood.” Warren said he saw appellant come out from behind the group of Mexican-Americans at the engagement party and shoot a gun at someone’s head.
Becerra described the gun as being of a dark color and having no cylinder. She saw appellant hold the gun in the air and then point it downward. When the shooting occurred, Becerra dropped to the ground and crawled to the house to care for her children. Nuno eventually came inside and said he, Puga and Garcia had been shot. Becerra immediately called 911.
Puga said he was the brother of Flora Aguiniga, who had just gotten engaged to Ruben Garcia. At one point during the engagement party, he noticed the African-American men on the driveway of the party house. Puga knew Flax, Wartson and “Heeter,” and said appellant was also present. According to Puga, “Heeter” said the party music was too loud and was going to ruin their “business” by attracting police. Puga said the music was not that loud, but they told the African-American men they would lower the volume and everyone shook hands. As Puga shook Flax’s hand, he felt a burning sensation in his back and fell to the ground. At first, Puga did not see appellant, but he did see Flax run away. Puga then saw appellant dressed in a black, puffy, hooded jacket. Appellant stepped on Puga’s feet and hand as he ran away. Puga said he did not see appellant shoot a gun, but he believed appellant shot him.
Mamie Woodard resided in the vicinity of the shooting and found appellant in her yard after the shooting occurred. Appellant resided in the house behind Woodard’s home. Appellant told her he had been at his house and then had run toward the shooting. Woodard gave appellant a ride into Hanford and dropped him off near an apartment building. Appellant spent the night with one Jennifer Neal and changed out of his clothing.
When the shooting occurred, Flax saw a flash near appellant’s hand and Flax ran from the scene. Later that evening, Flax saw appellant in the parking lot of the Granary Bar in Lemoore. Appellant said, “They fixin’ to go hard on me if they found out it was me.” In Flax’s view, the appellant’s remark referred to the shooting.
Officers found some .32 caliber shell casings and a .380 caliber Beretta firearm at the scene of the shooting. A physician removed a .32 caliber bullet from Nuno’s leg, but that bullet was not fired from the Beretta. On December 26, 2005, Kings County Deputy Sheriff Tyrus Milton went to Neal’s apartment and seized the black jacket that appellant wore on the night of the shooting. Criminalists found gunshot residue on the inside and outside of the right and left pockets of the jacket.
On December 27, 2005, Deputy Sheriff Robert Flores interviewed appellant about the shooting. Appellant denied being at the Shaw Place home but said he may have waved at someone attending the engagement party. Appellant also admitted his association with the Crips criminal street gang.
Gang Enhancement Evidence
On September 11, 2005, Michael Young and Monique Jackson were traveling in a Chevrolet Tahoe in the Home Garden area of Hanford. Young got into an argument with Laprice Harris, Wartson, Aaron Sparks and “Heeter” Jackson. Tamisha Dodson drove up and gave Sparks a weapon. Monique Jackson and Young drove away in the Chevrolet Tahoe, but heard several gunshots. A bullet pierced the driver’s side headrest of the Tahoe and several windows in the vehicle were broken. The shooting of the Tahoe followed a dispute at the Bastille Bar in Hanford.
Kings County Probation Officer Mark Cerda testified as an expert on the Crips criminal street gang. He described the activities of the gang and said appellant, in his opinion, was a member of the gang. Cerda based this conclusion on appellant’s tattoos and a letter written to appellant. That letter contained slang used by gang members and the notation “GXCX.” Cerda said the primary activities of the gang included murder, drive-by shooting, robbery, burglary, selling drugs and assault. In Cerda’s view, the shootings in the instant case benefited the gang by instilling fear in the community by demonstrating a willingness to commit murder.
In Cerda’s opinion, appellant was an active participant in the gang at the time of the shooting. Cerda said this was demonstrated by appellant’s tattoos, the contemporaneous statement “[t]his is our hood,” and the identity of the other people present. Cerda said the shooting benefited appellant as a gang member by showing his lack of fear, preventing future challenges, and heightening his status inside the gang and among rival gangs. Cerda also concluded that Sparks was a member of the Hanford Gangster Crips based on Sparks’s criminal history of drug sales and involvement in another drive-by shooting.
Defense
The defense recalled Deputy Milton to testify on behalf of appellant. Deputy Milton said he interviewed Gonzales about two hours after the shooting. Gonzales could not identify appellant in a photo lineup. However, he did tell Deputy Milton he saw the shooter fire at Garcia’s head from close range.
Deputy Julian Lemus interviewed Becerra about three or four hours after the shooting. Becerra told Deputy Lemus she did not see the shooter or the people who were shot. However, on December 26, 2006, Deputy Lemus interviewed Becerra again and she identified appellant as the shooter.
Deputy Mark Bevens spoke to Flax on the telephone a few days after the December 23 shooting. Flax denied personal knowledge of the shooting, but later said he saw appellant fire a weapon that evening.
DISCUSSION
I. There Was Sufficient Evidence to Support the Trial Court’s Instruction on Murder by Lying in Wait
On appeal, appellant contends “[t]he first degree murder conviction based on [a] lying in wait theory must be reversed because the record does not contain evidence showing a substantial period of watching and waiting for an opportune time to act.” In reviewing a criminal conviction for the alleged lack of evidentiary support, an appellate court must review the whole record in the light most favorable to the judgment. The appellate court must determine whether the record discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances might also be reconciled with a contrary finding. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact and not whether guilt is established beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 214.)
The definition of lying in wait has its origin in People v. Morales (1989) 48 Cal.3d 527, 557 (Morales). The Morales case addressed the issue of a lying-in-wait special circumstance. (People v. Poindexter (2006) 144 Cal.App.4th 572, 578.) A special circumstance based on a lying in wait theory requires an intent to kill while a first degree murder by lying in wait does not. Nevertheless, the durational element of lying in wait is the same for the special circumstance as it is for first degree murder based upon lying in wait. (People v. Stevens (2007) 41 Cal.4th 182, 202, fn. 11.) The elements of lying-in-wait murder include (1) concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. The question whether a lying-in-wait murder has occurred is often a difficult one that must be made on a case-by-case basis, scrutinizing all of the surrounding circumstances. (Morales, supra, at pp. 557-558.)
The Supreme Court has deemed “lying in wait” to be the functional equivalent of proof of premeditation, deliberation and intent to kill. Thus, a showing of lying in wait obviates the need to separately prove premeditation and deliberation. (People v. Hardy (1992) 2 Cal.4th 86, 162.)
The Morales factors, including the requirement of a “‘substantial period’” of watching and waiting, are part of the factual matrix required both for first degree murder under a lying-in-wait theory and for the lying-in-wait special circumstance. The jury instruction language need not exactly track the language of Morales to define adequately the required elements for either definition. (People v. Poindexter, supra, 144 Cal.App.4th at pp. 584-585.) The principal component of lying in wait is the waiting of a defendant for the opportunity to take the victim by surprise by concealing his or her murderous purpose to gain the advantage of ambush or surprise. (People v. Superior Court (Jurado)(1992) 4 Cal.App.4th 1217, 1227.) No particular length of time is required to show lying in wait. A jury instruction sufficiently reflects the Morales requirement of a watching and waiting for a “‘substantial period’” if “it is sufficient to demonstrate that defendant had a state of mind equivalent to premeditation or deliberation.” (People v. Poindexter, supra, at p. 585, citing People v. Ceja (1993) 4 Cal.4th 1134, 1139-1140.) Moreover, lying in wait does not require that a defendant launch a surprise attack at the first available opportune time. The defendant may wait to maximize his or her position of advantage before taking the victim by surprise. (People v. Lewis (2008) 43 Cal.4th 415, 510.) Even if the period of waiting is relatively short, that period is sufficient if it negates any inference that the defendant murdered as the result of panic or sudden impulse. (People v. Moon (2005) 37 Cal.4th 1, 24.)
In the instant case, appellant was initially outside of the yard where the engagement party was taking place. Deputy Milton spoke with Nuno, who said the conversation and handshaking between the two groups took up several minutes. At some point, appellant crossed into the fenced yard and approached the victims from behind. Gonzales, Warren, Becerra, Puga and Flax testified that appellant appeared in the yard and stood behind the group of victims. Once appellant positioned himself inside the yard, he did not start shooting. Instead, he first stood right next to Gonzales. Appellant had the hood of his bulky black jacket on his head and placed his hands in his pockets. Gonzales tried to engage appellant in conversation and made several statements, such as “‘Man this is messed up, can’t we all get along?’” Appellant replied to those statements by saying “‘Hum.’” Appellant stepped back and Gonzales stepped back with him. Gonzales then told appellant, “‘You know what, Homey ... [t]his fight’s on them.… I don’t even know who they are.’” After Gonzales made a few more remarks, appellant again said “‘Hum’” and took another step backward and went behind Gonzales. Appellant turned halfway away from the fence, then turned around, walked 10 or 12 feet to Ruben Garcia, put the gun to Garcia’s temple and fired.
The foregoing sequence of events negated any inference that appellant murdered Ruben Garcia as a result of panic or sudden impulse. As an encounter of several minutes unfolded, appellant did not immediately fire his weapon. Instead, he moved from outside of the fenced residence on Shaw Place to inside the yard where the engagement party was taking place. After Gonzales stood with and attempted to make conversation with appellant, the latter positioned himself behind Gonzales, produced a firearm, crossed a distance of 10 to 12 feet and discharged the weapon into the temple of Ruben Garcia. The evidence was sufficient to support the giving of CALCRIM No. 521 and to support a judgment of conviction of first degree murder based upon lying in wait.
II. CALCRIM No. 521 Does Not Contain an Erroneous Definition of Willful Action, Premeditation and Deliberation
Appellant contends CALCRIM No. 521 erroneously conflated definitions for the intent to kill, express malice, willful action, and premeditation and deliberation, thereby significantly lowering the prosecution’s burden of proof.
CALCRIM No. 520 (murder with malice aforethought (§ 187)), as read to the jury, states:
“[Appellant] is charged in Count 1 with murder.
“To prove that [appellant] is guilty of this crime, the People must prove that:
“1. [Appellant] committed an act that caused the death of another person; and
“2. When [appellant] acted, he had a state of mind called malice aforethought.
“There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
“[Appellant] acted with express malice if he unlawfully intended to kill.
“[Appellant] acted with implied malice if:
“1. He intentionally committed an act;
“2. The natural consequences of the act were dangerous to human life;
“3. At the time he acted, he knew his act was dangerous to human life; and
“4. He deliberately acted with conscious disregard for human life.
“Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
“An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.”
CALCRIM No. 521 (murder: degrees (§ 189)), as read to the jury, states:
“If you decide that [appellant] has committed murder, you must decide whether it is murder of the first or second degree.
“[Appellant] has been prosecuted for first degree murder under two theories: One, the murder was willful, deliberate, and premeditated; and two, the murder was committed by lying in wait.
“Each theory of first degree murder has different requirements, and I will instruct you on both.
“You may not find [appellant] guilty of first degree murder unless all of you agree that the People have proved that [appellant] committed murder. But all of you ... do not need to agree on the same theory.
“[Appellant] is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [Appellant] acted willfully if he intended to kill. [Appellant] acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. [Appellant] acted with premeditation if he decided to kill before committing the act that caused death.
“The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate ... and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is ... the extent of the reflection, not the length of time.
“[Appellant] is guilty of first degree murder if the People have proved that [appellant] murdered while lying in wait or immediately thereafter. [Appellant] murdered by lying in wait if:
“1. He concealed his purpose from the person he killed;
“2. He waited and watched for an opportunity to act; and
“3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed.
“The lying in wait does not need to continue for any particular period of time, but its duration must show a state of mind equivalent to deliberation or premeditation. Deliberation means carefully weighing the considerations for and against a choice and, knowing the consequences, deciding to act. An act is done with premeditation if the decision to commit the act is made before the act is done.
“A person can conceal his or her purpose even if the person killed is aware of the person’s physical presence.
“The concealment can be accomplished by ambush or some other secret plan.
“All other murders are of second degree.
“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find [appellant] not guilty of first degree murder.”
CALCRIM No. 522 (provocation: effect on degree of murder), as read to the jury, states:
“Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide.
“If you conclude that [appellant] committed murder but was provoked ... consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether [appellant] committed murder or manslaughter.”
The California Supreme Court has consistently rebuffed challenges to CALJIC No. 8.20, the predecessor to CALCRIM No. 521. (People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13; People v. Perez (1992) 2 Cal.4th 1117, 1123; People v. Lucero (1988) 44 Cal.3d 1006, 1021.) The two instructions are conceptually comparable. Both inform the jury that killings with premeditation and deliberation are of the first degree. Both inform the jury that deliberation requires not only a careful weighing of the considerations for and against a proposed choice, but also knowledge of the consequences before deciding to kill. Both inform the jury that the test of whether a decision to kill results from premeditation and deliberation is not the length of time but the extent of reflection.
On review of a challenge to jury instructions, our duty is to consider the entire charge, not just parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) As CALCRIM No. 521 informed appellant’s jury that murder not of the first degree is of the second degree, so CALCRIM No. 522 stated that provocation may reduce a murder from first degree to second degree.
On appeal, we presume jurors are intelligent people capable of understanding, correlating, and following the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130; People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) The standard of review of an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 Cal.4th 629, 663.) Appellant has failed to make such a showing and his contention must be rejected.
III. The Trial Court Did Not Abuse Its Discretion by Denying Defense Access to Juror Contact Information in Order to Investigate Possible Juror Misconduct
Appellant contends the trial court abused its discretion by denying the defense access to juror contact information in order to investigate juror misconduct.
On November 29, 2007, appellant filed a motion to continue sentencing and a petition to release juror identifying information (Code Civ. Proc., §§ 206, 237), alleging Juror No. 11 slept through jury proceedings and had to be continually advised to wake up. Defense counsel’s declaration in support of the motion to continue stated in pertinent part:
“1. I am the attorney for [appellant].
“2. This case is presently set for sentencing on December 3, 2007 at 10:30 a.m. in Department 6.
“3. That the continuance of the sentencing for at least 30 days is necessary so that the defense investigator may conduct investigation to determine whether defense may have grounds to file a Motion for New Trial.…
“4. After the trial was concluded, I was contacted by Juror #6, who informed me that throughout most of the deliberations in the jury room, Juror #11 slept through most of the proceedings and had to be continually aroused.
“5. [Appellant] is willing to waive time for sentencing.”
Defense counsel’s declaration in support of the petition stated:
“1. I am the attorney for [appellant].
“2. This case is presently set for sentencing on December 3, 2007 at 10:30 a.m. in Department 6.
“3. After the trial was concluded, I was contacted by Juror #6, who informed me that throughout most of the deliberations in the jury room, Juror #11 slept through most of the proceedings and had to be continually aroused.
“4. The release [of] juror identifying information is necessary for the defense to prepare a motion for new trial.”
On November 30, 2007, the district attorney filed written opposition to the petition, contending:
“[Appellant] presents no evidence or allegations that the jury received evidence out of court or engaged in any improper discussions. The conduct alleged is not improper. In point of fact i[t] would be entirely proper for jurors to wake a sleeping juror so that the sleeping juror could rejoin deliberations. [¶] Disclosure of juror identifying information is not necessary to develop a motion for a new trial because no evidence is admissible to show the effect of such conduct 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.…”
On December 3, 2007, the court heard arguments on the petition and the following exchange occurred:
“[DEFENSE COUNSEL]: Your Honor, after the jury trial I was contacted by ... juror number 7. [J]uror number 7 is the juror that was released from jury duty I believe on a Friday because her husband had been hit by a drunk driver and he was in the hospital and apparently in very serious condition. But that juror contacted me somewhat after the trial and was speaking to me about her experience as a trial [juror]. One of the issues that she brought up was her concern about the validity of the verdict in light of the fact that I believe it was juror number 11, she had indicated that much of the deliberations when she was there, she slept through most of those deliberations and had to be repeatedly woken up by the other jurors.
“She -- and the Court made a statement in chambers, she was not present to the conclusion of the trial, but I’d like to remind the Court as to the conduct of that juror. Repeatedly throughout the trial the Court was informed by I know at least [the bailiff] about that juror sleeping through trial. There was discussions I know at the bench about ... concerns about that juror actually sleeping throughout the trial.
“The Court ... took many breaks particularly because of the concern about that particular juror sleeping or falling asleep. That juror at the onset of the trial indicated I believe that much of what she was hearing or was to hear was boring and that made her fall asleep. [¶] ... [¶]
“So the conduct that was explained to me by juror number 7 is absolutely consistent with what was observed throughout the trial. And while I do understand that that particular juror was not there ... to the end of the proceedings, it is not unbelievable to believe that that particular juror would [have] continued the same type of behavior through the end of trial.
“So the motion is a motion to continue so that I can examine these issues and determine whether or not my client has a right to file a motion for a new trial based on juror misconduct.
“Now, along with that motion is the motion to unseal the juror identifying information in order for me to make a determination as to whether or not a motion for a new trial should be brought, and as the Court’s aware, it has to be brought prior to sentencing.
“I need to have my investigator question the other jurors about that conduct of which I have been informed by juror number 7. And in order for me to do that, I need to actually have access to the jurors who are willing to speak to the defense about those particular issues. [¶] ... [¶]
“So with that I filed a motion to continue this sentencing, and in conjunction with that a motion to release juror identifying information, so that we can in an expeditious way perform an investigation and then ultimately file the motion if we think it’s proper. So at this point that’s the basis for my motion to continue. [¶] ... [¶]
“THE COURT: [Prosecutor]?
“[PROSECUTOR]: Well, we had a trial on this case and at the end of the trial all 12 jurors came back into the courtroom with their guilty verdict. Each juror was polled and asked if that was their verdict and each one said that that was their verdict, guilty on every count.
“Now, at this point counsel says, without any authority whatsoever, that somehow it would be misconduct for a juror to fall asleep during deliberations, wake up and rejoin deliberations after being told to wake up. And what she wants to do is go on a fishing expedition and talk to all these jurors about their thought processes during the jury deliberations, which she’s not entitled to offer at a motion for a new trial, with absolutely no showing of good cause and no showing of authority.
“[W]e oppose the motion to disclose juror identification information, and the authorities on this are quite clear. It’s not something that you get willy-nilly. It’s something that you have to show good cause for. Counsel has not shown it and she’s not shown good cause for continuance.…”
The court subsequently took the motion and petition under submission and continued the matter for one week. On December 10, 2007, the court denied the motion and petition, stating:
“There is nothing in the record that indicates defense is unable to contact jurors without the sealed information. Defense counsel does not represent that she did not have a record of the names of the jurors or that she had attempted unsuccessfully to find addresses or telephone numbers for jurors whose names she did have.
“In the case of People versus Jefflo [(1998)] ... 63 Cal.App.4th, 1314, in the absence of such a showing there is no basis for concluding that the Court’s denial of the motion for disclosure would prevent defense counsel from contacting any of the jurors.
“There is a consensus among the appellate courts that the good cause requirement set forth in People versus Rhodes, Penal Code Sections 206 and 237 incorporate the Rhodes public policy balancing test for disclosure of sealed juror information. That test requires the defense to show a reasonable probability that misconduct occurred, that the defense made diligent but unsuccessful efforts to contact jurors by other means, and that further investigation is necessary to provide the Court with adequate information to rule on a motion for new trial. It’s People versus Rhodes [(1989)] ... 212 Cal.App.3d, 541.
“Moreover, the declaration[s] set forth by defense do not explain how the juror’s conduct was of such a character as is likely to have influenced the verdict improperly as recognized by the Court in People versus Bowers, [(2001)] 87 Cal.App.4th, 722, although a defendant has a right to a trial by jury, a party’s right to have its case decided by a jury does not necessarily include the right to compel jurors to discuss issues that they have chosen to decide without discussion. Even in those instances where allegations have been made of a juror sleeping during trial testimony, which is not the case here that has been set forth by the defense, it has been held that the fact that a juror falls asleep during the trial is not grounds for disturbing the verdicts if it does not appear that his sleep was for such a length of time or at such a stage of the trial as to affect his ability fairly to consider the case.
“In addition ... in reviewing the declaration, it appears that the juror [who] has spoken to the defense was not one of the jurors that ultimately reached a verdict in this matter. Furthermore ... at the time when the verdict has been reached, all jurors, all new jurors that had been put back into the jury field were ordered to renew their discussions and discuss the case anew and that they did before rendering their verdict in the matter. For these reasons the Court’s denying defense motions and the petition to unseal juror information.”
“A criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict.” (People v. Cox (1991) 53 Cal.3d 618, 698-699, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “‘[S]trong public policies protect discharged jurors from improperly intrusive conduct in all cases.’ [Citations.] The uncontrolled invasion of juror privacy following completion of service on a jury is, moreover, a substantial threat to the administration of justice. [Citations.] These concerns, however, must be balanced with the equally weighty public policy that criminal defendants are entitled to jury verdicts untainted by prejudicial juror misconduct. [Citations.]” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092.)
Sections 206 and 237 of the Code of Civil Procedure govern petitions for disclosure of juror identifying information, which information is automatically sealed upon the recording of a verdict in a criminal case. (Code Civ. Proc., § 237, subd. (a)(2).) Code of Civil Procedure section 206 authorizes a criminal defendant to petition pursuant to Code of Civil Procedure section 237 for access to personal juror identifying information when the sealed information is “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) Code of Civil Procedure section 237 provides that the petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the jury information. If the court determines that the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing, unless the record establishes a compelling interest against disclosure. (Code Civ. Proc., § 237, subds. (b), (c), (d).) If a hearing is set, then 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. (Code Civ. Proc., § 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.” (Code Civ. Proc., § 237, subd. (d).) The trial court’s ruling is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
To demonstrate good cause, a defendant must set forth “a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.) The misconduct alleged must be “‘of such a character as is likely to have influenced the verdict improperly.’” (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (People v. Wilson (1996) 43 Cal.App.4th 839, 852; People v. Rhodes, supra, at pp. 553-554.) Even where good cause exists, juror identifying information may not be had if the record establishes a compelling interest against disclosure to protect the jurors from threats. (Code Civ. Proc., § 237, subd. (b).)
Nothing in the instant record suggests that defense counsel was unable to contact the trial jurors without the sealed information. Moreover, the declarations in support of the defense motion and petition were based upon information from Juror No. 7, who was excused from service due to a serious vehicular injury to her spouse. At the time Juror No. 7 was excused and replaced by Juror No. 74 on October 1, 2007, the court instructed the jury as follows:
“The alternate juror must participate fully in the deliberations that lead to any verdict. The People and [appellant] have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again from the beginning. Therefore, you must set-aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.”
Even if Juror No. 7’s information was accurate, the trial court did not abuse its discretion in denying appellant’s petition requesting identifying juror information because Juror No. 7 was not present for the deliberations that ultimately led to the verdicts of guilt. Moreover, a juror must not be discharged for sleeping unless there is convincing proof the juror actually slept during trial. The bare fact of sleeping at an unknown time for an unknown duration and without evidence of what, if anything, was occurring in the jury room at the time is insufficient to support a finding of juror misconduct or to conclude the juror was unable to perform his or her duty. (People v. Bowers, supra, 87 Cal.App.4th at p. 731.)
Here, defense counsel’s declarations were based upon the statements of a juror who was excused prior to the deliberations leading to the verdicts of guilt. Counsel’s declarations did not support a reasonable inference or belief of jury misconduct and the trial court properly concluded that appellant failed to make the requisite showing of good cause for disclosure of jury indentifying information.
DISPOSITION
The trial court is directed to amend the abstract of judgment by deleting the references to subdivision (a)(1) in the section 12022.5 enhancements pertaining to counts 3 and 5. In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.
With respect to counts 3 and 5, we note the trial court sentenced appellant for the firearm enhancement pursuant to section 12022.5, subdivision (a)(1) before staying the sentence on those counts. Although subdivision (a)(1) existed prior to 2002, that subdivision was eliminated by a statutory amendment in 2002. (See Stats. 2002, ch. 126, § 3.) The second amended information, filed July 5, 2006, simply pleaded personal use of a firearm “within the meaning of Penal Code sections 12022.5, 1192.7(c) and 667.5(c)” without mentioning any subdivision with respect to section 12022.5. To avoid confusion in the future, the trial court is directed to amend the abstract of judgment by deleting the references to subdivision (a)(1) in the section 12022.5 enhancements pertaining to counts 3 and 5.