P. v.
Filed 10/17/13 P. v. Cardenas CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND CARDENAS,
Defendant and Appellant.
B241082
(Los Angeles
County
Super. Ct.
No. VA 114568)
APPEAL from
a judgment of the Superior Court
of
County, Philip H. Hickok, Judge. Affirmed.
Rachel
Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
Appellant
Raymond Cardenas challenges his conviction on two counts of
occupied vehicle, arguing the trial court violated his constitutional rights by
denying a motion to strike a victim’s in-court identification and denying a
motion for a new trial based on juror misconduct. We affirm.
Appellant was charged in a
four-count information arising from two separate shooting incidents. As to the first incident, appellant was
charged with first degree murder (Pen. Code, § 187, subd. (a))
1) and attempted willful, deliberate, and premeditated murder (§§ 187, subd.
(a), 664) (count 2). As to the second
incident, appellant was charged with attempted willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664) (count 3) and shooting at an
occupied vehicle (§ 246) (count 4).
The information also alleged firearm and gang enhancements for each
count.
After
trial, the jury found appellant guilty on counts 3 and 4 and found the firearm
and gang enhancements true as to those counts.
The jury deadlocked on counts 1 and 2.
The court took the verdict on counts 3 and 4, denied a motion for a
mistrial, dismissed two jurors and replaced them with alternate jurors, and
ordered the jury to resume deliberations.
The jury was still unable to reach a verdict on counts 1 and 2, so the
court declared the jury deadlocked, excused the jurors, and declared a mistrial
on counts 1 and 2. Thereafter, the court
denied appellant’s petition to disclose juror information and motion for a new
trial based on juror misconduct.
Pursuant to
a plea agreement, the court dismissed
counts 1 and 2 and appellant pled no contest to one count of voluntary
manslaughter (§ 192, subd. (a)) (added as count 5 to the information by
interlineation) and no contest to a personal gun use enhancement for that
count. On count 3, the court sentenced
appellant to life in prison, plus 20 years for the firearm enhancement, and
stayed the term for the gang enhancement.
For the manslaughter count, the court sentenced appellant to the upper
term of 11 years, plus four years for the firearm enhancement, which would run
concurrent with the sentence on count 3.
The court stayed appellant’s sentence on count 4 pursuant to section
654. The court imposed various fines,
fees, and custody credits not at issue
here. Appellant timely appealed.
The counts alleged in the
information were based on two separate shooting incidents: the shooting supporting counts 1 and 2 (and
later, count 5) took place during a birthday party in Norwalk on February 12,
2010, during which one person was killed and another injured; and the shooting
supporting counts 3 and 4 took place in the City of Paramount on February 26,
2010, which resulted in no injuries.
Appellant raises only issues related to the second incident and his
conviction on counts 3 and 4, so we will focus our discussion on the facts
supporting those counts.
name="_ftnref3" title="">[3]
On February 26, 2010, Isaiah Aguilar
arrived by car to a friend’s house in the area of Paseo
Street and Pimenta Avenue
in the City of Paramount. He noticed a four-door Volkswagen carrying
three Hispanic males drive slowly by the house, about five to 10 miles per
hour. He looked at the men for five to
10 seconds. At the time, he was not
afraid and felt calm, getting a “good look†at the people inside the car. He parked and went into his friend’s house,
and about 30 minutes later (around 4:20 or 4:30 p.m.), he left in his car,
making a left on Paseo Street. At the
intersection of Oliva Avenue and Paseo Street, he saw a male youth named
Timothy W. engaged in a verbal altercation with the men he had seen in the
Volkswagen.
The men
returned to the Volkswagen and proceeded in the direction of Aguilar’s car, and
when Aguilar stopped at a stop sign, the Volkswagen pulled alongside. Aguilar recognized the same three men he saw
earlier. They looked at him, and he looked
at them for approximately five seconds, looking at each one’s face individually. The person in the front passenger seat, who
Aguilar later identified as appellant, was wearing a blue Pittsburgh Pirates
baseball cap with a “P†on it and he yelled out, “Dog Patch,†referring to the
Dog Patch gang. The man in the back seat
of the Volkswagen moved and then jumped out of the car with a small handgun, at
which point Aguilar drove away. Aguilar
heard three gunshots and saw the shooter in his rear-view mirror standing and
shooting at him. He was not hit, but a
bullet struck the left taillight and went through the trunk.
The Dog
Patch gang and a gang called East Side Paramount are enemies. Aguilar knew at the time Timothy’s brother
was a member of the East Side Paramount gang.
Aguilar’s own brother was a member of the East Side Paramount gang and
Aguilar himself had associated with that gang in the past, although he denied
being a member.
Aguilar
testified that Detective Kasey Woodruff interviewed him at his house two days
later on February 28. Aguilar identified
appellant in a six-pack photographic lineup (six-pack photo lineup) as the one
wearing the blue hat with the “P†on it and who yelled, “Dog Patch.†He testified Detective Woodruff did not force
him to select anyone and he identified appellant “[b]ecause it was who [he] saw.†He described appellant as a “dark little
Mexican cat†or “that little dark fool†and recognized his complexion, but not
his facial features. Aguilar testified
when he selected appellant’s photograph, Detective Woodruff told him something
like, “You’re right on, boss. You hit
the nail right on the head.â€
Detective
Woodruff recorded the interview and defense
counsel played part of the recording for the jury. On the recording, Aguilar described the
individuals in the car as “three fools, there was a regular cat driving with
hair, mustache, that was the driver, light skinned like Mexican guy, and then
there was a dark little Mexican cat like a little young fool, like maybe I
would say 17, 18 or 19 years old.â€
Detective Woodruff told Aguilar, “All right I’m going to show you some
photos. Just because people are in the
photos doesn’t mean it is them. Now,
just take it for what it is. If the
person is there, the person is there, if they are not, they’re not. All right?
My job is to eliminate people not to . . . You know what
I’m saying?†They discussed the route of
the cars for a few moments. Detective
Woodruff repeated, “Like I said, persons involved may or may not be in these
photos. Okay? Don’t assume anything. Just take a good look. I can tell you right now before we do this, I
already knew who it was. All right? Like I told you about your brother’s CD and
everything? I already know I (
figure out if we are looking at the same people here.†The following exchange then took place:
“[Aguilar:] Okay, I’ll be able to let you know (
“[Detective
Woodruff:] Where was he sitting at? Shotgun?
“[Aguilar:] Yeah.
“[Detective
Woodruff:] Circle him. (inaudible)
got to go?
“[Aguilar:] Yeah, I think yeah. That was this little fool.
“[Detective
Woodruff:] You’re already right on boss,
you hit it right off the top of the nail.
“[Aguilar:] I know it was for sure it was that guy.
“[Detective
Woodruff:] He was riding shotgun?
“[Aguilar:] The fool was shotgun, but he wasn’t [the] one
that was shooting.â€
Aguilar
confirmed the person he identified was the one who yelled “Dog Patch.†Detective Woodruff also told him, “Well, you
did that one quick,†and “I know for sure that guy was in the car.â€
In
preparing to show Aguilar the six-pack photo lineup, Detective Woodruff did not
provide Aguilar with a form admonition usually used for six-pack photo
lineups. He explained at trial he did
not use the form admonition because gang members are often reluctant to report
crimes and the form might scare them into not talking to him; instead, he
recorded the conversation without Aguilar’s knowledge. At trial, Detective Woodruff confirmed he
told Aguilar he knew who was in the car during the incident, but he denied
pointing to appellant’s photograph or mentioning appellant’s name at any
time. He admitted on cross-examination
he confirmed Aguilar’s identification of appellant three separate times during
the interview.
title="">[5]
When he
testified at trial, Aguilar denied Detective Woodruff’s comment about
identifying the right person had influenced him, and he “knew who it was before
he even proclaimed that.†Defense
counsel showed Aguilar his preliminary hearing testimony during which Aguilar
testified he “thought†appellant “might be†the front passenger, but by the end
of the interview, he was “sure†appellant was the front passenger.
Aguilar
identified appellant at the preliminary hearing. After testifying at the preliminary hearing,
Aguilar saw Dog Patch gang graffiti in front of his house, next to his house,
at the dead end of his block, and on the corner of his block, which made him
worried for his safety and his family.
Aguilar
also identified appellant at trial as the man who said, “Dog Patch.†He testified he got a good look at appellant
in the car but not as good a look at the other two men. He had never seen appellant or the others in
the Volkswagen and he had no contact with appellant since.
The parties
stipulated that, on February 26, 2010, Deputy Rocio Encinas recovered four
expended .22-caliber casings in the middle of the street in front of 8827 Paseo
Street in Paramount.
Detective
Woodruff testified as a gang expert for the prosecution as to all the counts. He described the territory and membership of
the Dog Patch gang; the gang’s primary activities of vandalism, drug and
weapons violations, assaults, robberies, car thefts, carjackings, illegal
shootings, and murder; members’ intimidation of the community in their
territory; and the fact that members often wear tattoos. The gang’s enemies include East Side
Paramount, which claims territory around Paseo Street and Pimenta Avenue. He explained if Dog Patch graffiti crossed
out a rival gang’s graffiti, as occurred near Aguilar’s house, it signaled the
gangs were enemies or Dog Patch wanted to kill the other gang. Also, he testified two Dog Patch members had
been convicted of firearm and drug offenses in 2008 and 2010.
Detective
Woodruff testified appellant had Dog Patch gang tattoos, he had appeared in
photographs making gang signals with other Dog Patch members, and he had
admitted in February 2009 he was a Dog Patch member with the moniker (nickname)
“Crook.†Detective Woodruff also
explained the blue hat with a “P†on it would be worn by several gangs in
Paramount, including Dog Patch.
As relevant
to counts 3 and 4, Detective Woodruff had downloaded a rap video from
Youtube.com, which included an individual identifying himself as “Cartoon,†who
was Aguilar’s younger brother. In the
video, certain terms were used that Detective Woodruff interpreted as insults
to Dog Patch and a challenge by East Side Paramount telling Dog Patch members
not to come into their neighborhood or they would be shot or killed. There was a reference to “Squeal†on the
video, which was derogatory for “Squirrel,†a Dog Patch member, who uploaded a
responsive video. The word “Squirrelâ€
also appeared on graffiti outside Aguilar’s house. Given a hypothetical set of facts based on
the facts underlying counts 3 and 4, Detective Woodruff opined the vehicular
shooting in Paramount was committed for the benefit of, and in association
with, a criminal street gang.
Appellant
did not testify. In defense of counts 3
and 4, Jose Franco testified he was inside a house on Paseo Street about 4:30
p.m. on February 26, when the shooting took place. He heard gunshots and saw a gray car drive
away, but he was unable to see the faces of anyone inside. He saw the car for only two or three seconds. He did not see Aguilar or his car that
day. Deputy Encinas arrived at the scene
about 5:00 p.m. that day and interviewed Franco, who said he had heard
five gunshots and went outside, saw a vehicle with five male Hispanics yelling
something toward the direction of the gunshots, and noticed the driver wore a
blue hat with the letter “P.†At trial,
however, Franco denied going outside, could not remember telling Deputy Encinas
there were five occupants in the car, and denied saying the driver wore a blue hat
with a “P†on it.
Forensic
psychologist Dr. Mitchell Eisen testified as an expert on eyewitness memory and
suggestibility. He explained the
reconstructive nature of memory and how errors can occur because all memories
contain gaps the mind tries to fill.
Sometimes an individual also mistakes the source of information. He described the effect of stress and trauma
on memory, such as during a traumatic event, which creates a “massive
distraction†that can limit the details a witness remembers and can skew a
witness’s sense of time. Intoxication
and the presence of a weapon can also affect memory. And memory reports given closer to an
incident are generally more accurate than reports given later.
In the
context of photographic lineups, Dr. Eisen testified an admonition is used
because witnesses assume the police know something they do not. If an officer tells a witness she knows who
committed the crime, that would be counter to the admonition that the officer
does not know whether a photo of the actual culprit is in the lineup, which
could lead to false identification.
Thus, using an admonition is a “best practice,†but it does not
guarantee against a false identification.
Dr. Eisen also explained the person administering the lineup can
influence the identification if the lineup is not double-blind, that is, the
person administering the lineup does not know who the suspect is. If the suspect is not in the lineup, the
witness may also use “relative judgment†to select a person out of the options
presented who most closely matches the suspect.
And a witness may be confident in a selection, but confidence is
generally not a good predictor of accuracy, especially if the witness is given
feedback the identification is correct.
Confidence also increases over time, but accuracy decreases as the
witness feels more confident by resolving details in his or her mind. Likewise, a witness’s memory can conform to
other witnesses’ memories as they discuss the incident.
He further
testified that feedback confirming an identification, even a mistaken
identification, can increase a witness’s confidence in the identification to
100 percent and affect the witness’s confidence in their memory of the
event. When given a hypothetical based
on Detective Woodruff’s confirming comments to Aguilar after his
identification, Dr. Eisen declined to opine on that specific scenario, but
reaffirmed positive feedback can increase a witness’s confidence in a false
identification. Even if a witness is
wrong in an initial identification, he or she will continue to identify that
person over time.
After
Aguilar testified at trial, defense
counsel moved to strike his in-court identification of appellant on the
ground that appellant’s due process rights were violated by Detective
Woodruff’s overly suggestive police identification procedure during the
interview at Aguilar’s house. The trial
court denied the motion, explaining there was no single correct identification
procedure and finding Detective Woodruff did not “unduly prejudice the
identification, or suggest to Mr. Aguilar who he should pick out.†While we agree most of the circumstances
leading to Aguilar’s initial identification of appellant were not unduly
suggestive, Detective Woodruff’s confirmation of Aguilar’s selection several
times created an unduly suggestive procedure that undermined Aguilar’s later
in-court identification. However, because
Aguilar’s identification was reliable, appellant’s due process rights were not
violated and the trial court properly refused to strike Aguilar’s in-court
identification.
In
determining whether an identification procedure violates due process, we
consider (1) whether the identification procedure was unduly suggestive and
unnecessary; and (2) whether the identification itself was nevertheless
reliable under the totality of the circumstances. (Perry
v. New Hampshire (2012) __ U.S. __, __, 132 S.Ct. 716, 724-725;
930 (Thomas).) The defendant bears the burden to demonstrate
an unreliable identification procedure.
(People v. Ochoa (1998) 19
Cal.4th 353, 412 (Ochoa).) We review the trial court’s decision de
novo. (People v. Kennedy (2005) 36 Cal.4th 595, 608, disapproved on other
grounds by People v. Williams (2010)
49 Cal.4th 405, 459.)
Suggestive and Unnecessary Procedure
Appellant claims the
identification procedure Detective Woodruff used with Aguilar at his house was
unduly suggestive and, as a result, tainted Aguilar’s in-court identification
because Detective Woodruff said he already knew who the perpetrators were
before Aguilar identified appellant; he suggested appellant was sitting in the
front passenger seat of the Volkswagen; he told Aguilar to circle appellant’s
photograph after Aguilar said something inaudible on the recording of the
interview; and he confirmed Aguilar’s identification after Aguilar selected
appellant. With the exception of Detective
Woodruff’s confirmation of Aguilar’s selection (discussed below), these
circumstances did not render the identification procedure unduly
suggestive. Detective Woodruff used a
six-pack photo lineup and admonished Aguilar before the identification that the
suspect may not have been in the lineup at all, both of which guarded against
singling out or drawing attention to appellant.
(Thomas, supra, 54 Cal.4th at
p. 932 [finding live lineup was not unduly suggestive when police compiled
a “reasonably balanced group of subjects†and warned that perpetrators may not
be in the lineup].) There is nothing in
the record to suggest Detective Woodruff did anything to influence Aguilar
before he made his initial identification.
However,
Detective Woodruff’s repeated and unnecessary confirmation that Aguilar
correctly identified appellant tainted Aguilar’s later in-court identification
and rendered it the result of an unduly suggestive and unnecessary
procedure. Aguilar appeared fairly
confident when he initially identified appellant, saying “Yeah, I think
yeah. That was this little fool.†Immediately, however, Detective Woodruff
confirmed his selection: “You’re already
right on boss, you hit it right off the top of the nail.†Aguilar responded, “I knew it was for sure it
was that guy,†suggesting that any lingering doubts in Aguilar’s mind instantly
disappeared. Aguilar’s response was
consistent with Dr. Eisen’s expert testimony that a witness’s confidence level
in even a false identification can rise to 100 percent certainty under these
circumstances. Although at trial Aguilar
denied being influenced by Detective Woodruff and he “knew who it was before he
even proclaimed†that Aguilar had selected appellant correctly, it is difficult
to imagine a witness maintaining an independent belief in the correctness of
his in-court identification in light of such forceful confirming statements.
Thus, while
Aguilar was not improperly influenced before initially identifying appellant,
his later in-court identification was improperly influenced by Detective Woodruff’s
unnecessary confirming statements. (
1242-1243 [admitting witness’s initial “virtually certain†identification but
excluding later identifications after police had confirmed initial
identification, which “had a corrupting effect on any identification that did,
or might, follow -- but that in view of [the witness’s] certainty, it did not
have such an effect on the preceding identification, as it were,
‘retroactively.’â€], overruled on another ground by People v. Edwards (1991) 54 Cal.3d 787, 835; see also
243-245 [allowing testimony on photographic lineup identifications that were
later confirmed by police because witnesses did not make in-court
identifications and confined their testimony to the circumstances of the
preconfirmation lineups and identifications].)
We must therefore determine whether Aguilar’s identification was
nevertheless reliable.
of Identification
In assessing reliability, we
consider a host of factors: (1) the
opportunity of the witness to view the suspect at the time of the crime; (2)
the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the criminal; (4) the level of certainty demonstrated at the identification;
and (5) the length of time between the crime and the identification. (Manson
v. Brathwaite (1977) 432 U.S. 98, 116 (Manson);
Thomas, supra, 54 Cal.4th at
p. 930.)
Applying
these factors here, Aguilar’s identification of appellant was reliable. When Aguilar first saw the Volkswagen and its
occupants, it was daylight (around 4:00 p.m.), and he noticed the vehicle
because it was driving slowly by. He
felt calm at the time and got a “good look†at the men in the car for five to
10 seconds. He saw the men again around
30 minutes later when they were engaged in a verbal altercation with Timothy
and when they pulled up next to him at the intersection, recognizing they were
the men he saw drive by earlier. At the
intersection, Aguilar looked at them for approximately five seconds, looking at
each one’s face individually. He noticed
appellant in the front passenger seat with the blue baseball cap with a “P†on
it and remembered him yelling out, “Dog Patch.â€
Two days later he identified appellant in the six-pack photo lineup with
Detective Woodruff, appearing fairly confident of his identification before
Detective Woodruff confirmed his selection.
Aguilar was unable to identify appellant’s facial features, but he
described appellant as a “dark little Mexican cat†or “that little dark foolâ€
and recognized his complexion. Under
these circumstances, Aguilar’s identification was not so unreliable to create
the “‘very substantial likelihood of irreparable misidentification’†rising to
the level of a due process violation, and any weaknesses in his identification
were for the jury to consider. (
Misconduct
Appellant
challenges the trial court’s denial of a new trial motion based on juror
misconduct, arguing the court erred in denying the motion and, alternatively,
the court should have granted his request to disclose juror information. We disagree.
Prior to the jury’s
deliberations, the trial court instructed the jury with CALJIC No. 2.60
regarding appellant’s decision not to testify:
“A defendant in a criminal trial has a constitutional right not to be
compelled to testify. You must not draw
any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter
nor permit it to enter into your deliberations in any way.â€
After the
jury returned guilty verdicts on counts 3 and 4 and the court declared a
mistrial on counts 1 and 2, appellant filed a petition pursuant to Code of Civil
Procedure section 237 to disclose juror information, based on allegations of
juror misconduct stemming from counsel’s discussion with jurors after
trial. In his declaration in support of
the petition, counsel explained he had spoken with Juror Nos. 1, 2, 3, 6, 7,
and 8 after trial about their deliberations.
He stated: “At one point during
the conversation I asked the jurors if they were bothered at all by the fact
that the Defendant did not testify. A
few of the jurors answered, ‘no’ and stated that the fact that Defendant did
not testify did not affect their decision.
I explained that I always ask that question when talking to jurors
because I have no way of knowing if the Defendant’s failure to testify played a
part in their decision. Juror 8 then
stated, ‘there were a few of us who said, “if he’s really innocent, why
wouldn’t he take the stand in his own defense,†but that didn’t affect our
decision.’ Juror 3 was nodding in
agreement as Juror 8 said this.â€
The court
delayed ruling on the petition so it could send out inquiry letters to jurors
regarding misconduct. In relevant part,
the letter indicated the court was going to hold a hearing on “whether and to
what extent the defendant’s failure to testify entered into your vote of guilty
in counts 3 and 4.†Jurors were given
the option of either appearing at the hearing, or calling or writing the court
to indicate “whether you discussed this matter in jury deliberations, and if so
whether it affected your verdict in any way.â€
Thereafter, on April 5, appellant filed a motion for a new trial on
counts 3 and 4, again raising the same juror misconduct issue, among other
issues.
The court
held a hearing, noting it had received written responses or telephone calls
from six jurors.
title="">[6] Juror No. 6 appeared at the
hearing. Juror No. 8 did not
respond or appear. When asked whether
appellant’s failure to testify entered into deliberations, Juror No. 6
stated the issue did not come up during deliberations on counts 3 and 4, but
came up with regard to counts 1 and 2.
Juror No. 6 explained, “Basically, in there there was two women
that said something about it, but it was also stated to them that the jury
instructions said that we weren’t suppose to take anything from that. . .
. [B]ut that was about it.†Also, as to counts 1 and 2, the two jurors
“would have liked to have heard what he said.
But it was also stated that there was really nothing offered that he was
any place else, and there was nothing, the person that came in was talking
about they’re under, you know, possible threats to themselves for coming up
there and even testifying, so he’s not going to do that just
halfheartedly.†In Juror No. 6’s
view, “none of that, I think, affected any of what was stated.†The court then asked, “Insofar as the guilty
verdict in counts 3 and 4, whatever was said in there didn’t affect your
deliberations, did it?†Juror No. 6
responded, “No. I mean it actually came
fairly fast.†Juror No. 6 also
indicated, “after the weekend break, especially one girl said in there that she
was worried about somebody taking descriptions . . . of the
jurors. And basically it was said when
they go out in the hallway their pictures to be taken in the hallway by people
sitting on the benches out there. So I
think that was, that part of it was intimidating to that one person.â€
Because
Juror No. 8 did not respond to the court’s letter, defense counsel
requested the court disclose Juror No. 8’s contact information or order
Juror No. 8 to appear in court. The
court denied the request, relying on “confidentiality of the identity of
jurors. Not only in this particular
case, which is a very serious case with gang overtones, but in all criminal
cases I want to protect the sanctity of the jury. I don’t want to run the risk of this getting
around and somehow in the future have it [affect] open, candid deliberations of
jurors in any case. [¶] Additional to that, I don’t think this rises
to a level that we need to talk to Juror number 8. She made comments to you after the case was
over and after the jury was excused. In
response to that we sent out letters to all of the jurors involved. We receive[d] responses now of seven of them. While at least one has confirmed the fact
that Juror number 8 had a conversation outside the courthouse with you, with
the defense attorney, he over heard that.
None of them had indicated to me, in any of these juror responses, that
if it did come within their ear shot that it affected their deliberations in
any way. So I don’t think we need to
release any information as far as Juror Number 8 is concerned.â€
The court
also denied the motion for a new trial based on juror misconduct: “I think case law also is such that passing
references to comments like that don’t rise to a level of misconduct that
warrants a new trial. Innocent mentions
of the facts too, as long as it doesn’t substantially [affect] the deliberative
process of the jurors, then it’s basically harmless error. That is at most what we have in this
case. If, in fact, it even occurred
prior to them coming back with a unanimous verdict in counts 3 and 4. It was harmless. It did not prejudice the defendant in any
way. [¶]
So in any event, we have six, now seven responses from jurors. They will be made part of the official court
record indicating that it didn’t affect them in any way. Some of them didn’t even realize that it
happened. So I will acknowledge the fact
there was maybe a passing reference to the fact that he did not testify in this
case[;] however that did not rise to a level where I have to grant a new trial
on counts 3 and 4.â€
of New Trial Motion
A jury commits misconduct when
it violates the court’s instruction not to discuss a defendant’s failure to
testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (
of prejudice, which ‘may be rebutted . . . by a reviewing
court’s determination, upon examining the entire record, that there is no
substantial likelihood that the complaining party suffered actual harm.’†(Ibid.) In denying the motion for a new trial, the
trial court here appeared to assume admissible evidence demonstrated misconduct
when the jurors mentioned appellant’s failure to testify, but concluded
appellant was not prejudiced by the misconduct.
We, too, focus on the prejudice requirement.
prejudiced by the jurors’ comments on his failure to testify. (Ibid.)
Like the
trial court, we find the record rebuts the presumption of prejudice, that is,
there was no substantial likelihood appellant suffered actual harm from juror
misconduct. Although Juror No. 8
told defense counsel, “‘“there were a few of us who said, ‘if he’s really
innocent, why wouldn’t he take the stand in his own defense,’â€â€™â€ the comment
was apparently brief, and Juror No. 6 clarified that the issue did not
come up at all during deliberations on counts 3 and 4; it only came up with
regard to counts 1 and 2. To argue
otherwise, appellant points to Juror No. 6’s comment that “it was also
stated that there was really nothing offered that [appellant] was any place
else,†suggesting the jury must have been discussing counts 3 and 4 at the time
because it was undisputed appellant was at the scene of the shooting for counts
1 and 2. But that inference is not
supported by the context of the comment, which was made in direct response to
the trial court’s question, “It was only as to 1 or 2 that one or two jurors
mentioned the fact he didn’t testify?â€
Juror No. 6 also explained two of the jurors who had mentioned
appellant’s refusal to testify were told “that the jury instructions said that
we weren’t supposed to take anything from that.â€
Given the
jurors’ discussion and consideration of appellant’s failure to testify was
brief and unrelated to counts 3 and 4, and the jurors were reminded not to
consider that fact, there is no substantial likelihood of harm justifying a new
trial. (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 727 [no prejudice from brief
discussion of defendant’s failure to testify, given offending juror was
immediately reminded he could not consider that fact]; People v. Loker (2008) 44 Cal.4th 691, 749 [no prejudice from juror
comments on defendant’s failure to testify in light of foreperson’s reminder it
could not be considered]; People v. Hord (1993)
15 Cal.App.4th 711, 727-728 (Hord)
[no prejudice from jurors’ “[t]ransitory comments of wonderment and curiosityâ€
and “oblique remark†about defendant’s failure to testify, given discussion was
not lengthy, jurors knew defendant had not testified, and foreperson admonished
fellow jurors they could not consider defendant’s not testifying].) Indeed, “the purpose of the rule prohibiting
jury discussion of a defendant’s failure to testify is to prevent the jury from
drawing adverse inferences against the defendant, in violation of the
constitutional right not to incriminate oneself.†(Leonard,
supra, 40 Cal.4th at p. 1425.) If
the jury had drawn an adverse inference from appellant’s refusal to testify, it
would have convicted appellant on all counts, instead of deadlocking on counts
1 and 2, while convicting on counts 3 and 4.
Thus, the trial court properly denied appellant’s new trial motion.
of Request to Disclose Juror No. 8’s Information
Appellant alternatively argues the
trial court abused its discretion in denying his request for identifying
information for Juror No. 8 and the other jurors who did not respond to
the trial court’s inquiry. We disagree.
As relevant
here, Code of Civil Procedure section 237, subdivision (a)(2) provides, “Upon
the recording of a jury’s verdict in a criminal jury proceeding, the court’s
record of personal juror identifying information of trial jurors, as defined in
Section 194, consisting of names, addresses, and telephone numbers, shall be
sealed until further order of the court as provided by this section.†“‘Any person’†seeking this information must
petition the court and submit a “declaration that includes facts sufficient to
establish good cause for the release of the juror’s personal identifying
information.†(Code Civ. Proc.,
§ 237, subd. (b).) That includes a
criminal defendant or defense counsel, provided he or she demonstrates the
information is “necessary†for a new trial motion or “any other lawful
purpose.†(Code Civ. Proc., § 206,
subd. (g).)
The trial
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.†(Code Civ. Proc.,
§ 237, subd. (b).) If the court
sets a hearing, a juror may appear to protest the granting of the petition, and
the court must sustain the protest if, “in the discretion of the court, the
petitioner fails to show good cause, the record establishes the presence of a
compelling interest against disclosure as defined in subdivision (b), or the
juror is unwilling to be contacted by the petitioner.†(Code Civ. Proc., § 237, subds. (c),
(d).) The court must also make express
findings in ruling on the petition.
(Code Civ. Proc., § 237, subd. (d).)
“Good
cause†is established when the jurors’ alleged conduct was “‘of such a
character as is likely to have influenced the verdict improperly.’†(People
v. Jefflo (1998) 63 Cal.App.4th 1314, 1322 (Jefflo).) We review the
trial court’s order denying disclosure of the jurors’ identifying information
for abuse of discretion. (
Cal.App.4th 978, 991.)
This is not
a case in which the trial court denied appellant’s request for juror
information based only on defense counsel’s declaration and without holding a
hearing or further inquiring into the alleged misconduct. (See, e.g., Jefflo, supra, 63 Cal.App.4th at pp. 1322-1323 [finding
defense counsel’s declaration insufficient to justify holding a hearing on disclosure
of juror information or sending letters to jurors].) Instead, the court sent out letters to all
jurors, received responses from six of them, and held a hearing at which Juror
No. 6 appeared. Because Juror
No. 8 did not respond, however, defense counsel requested that the court
either order disclosure of Juror No. 8’s contact information or order her
to appear in court. We must therefore
decide whether, on this record, appellant established good cause for further
inquiry regarding Juror No. 8. We
conclude he did not.
name="_ftnref8" title="">[8]
As
discussed above, Juror No. 6 explained that appellant’s failure to testify
came up only with regard to counts 1 and 2, so Juror No. 8’s statement
likely had no impact on the jury’s deliberations on counts 3 and 4. Juror No. 8’s statement also reflected
merely curiosity on appellant’s failure to testify, and not that she or any
other juror drew an adverse inference from that fact. (Hord,
supra, 15 Cal.App.4th at p. 727.)
And the trial court heard from seven of the 12 jurors, none of whom
indicated they considered or discussed appellant’s failure to testify as part
of counts 3 and 4. We cannot say the
trial court abused its discretion in finding the jury’s brief discussion of
appellant’s failure to testify did not influence the jury on counts 3 and 4
such that further disclosure of Juror No. 8’s information was warranted.
The judgment is
affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J. GRIMES,
J.
name="_ftn1" title="">[1]
the Penal Code.
name="_ftn2" title="">[2] The following enhancements were
alleged: for counts 1 and 2, personal
use and discharge of a firearm (§ 12022.53, subds. (b), (c) & (d));
for count 3, principal use and discharge of a firearm (§ 12022.53, subds.
(c) & (e)(1)); for counts 1, 2, and 3, criminal street gang (§ 186.22,
subd. (b)(1)(C)); for counts 2, 3, and 4, criminal street gang (§ 186.22,
subd. (b)(4)); and for count 4, criminal street gang (§ 186.22, subd.
(b)(1)(B)).
