P. v. Johnson

Filed 8/22/07 P. v. Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael P. Vicencia, Judge. Affirmed.

Richard D. Rome, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Lance Michael Johnson appeals the judgment entered following his conviction by jury of two counts of first degree burglary. (Pen. Code, 459.) The trial court sentenced Johnson to a prison term of four years. We reject Johnsons various claims of error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Burglary of the Kawaguchi residence.

On February 13, 2005, Gladys Kawaguchi left her home in Hawthorne at 5:30 p.m. to attend a movie with her son. When they returned at 8:00 p.m., the home had been ransacked and property was missing, including an Xbox game system and games. It appeared the burglar entered through the kitchen window where the weather stripping had been disturbed.

2. Johnson sells property taken in the Kawaguchi burglary.

On February 14, 2005, Johnson, codefendant Tyrone Tucker and Jessie M. entered the Game Stop store in Inglewood and offered to trade-in an Xbox game system and 12 games.^[1] The store manager paid $108 for the system to Johnson, who completed a refund transaction form.

3. Burglary of the Miranda residence.

On February 14, 2005, Maria Miranda left her home in Gardena at 9:00 a.m. Torrance Police Officer Arlan Wells was assigned to a burglary task force working in the area. Wells saw a Chevrolet Cavalier commit a traffic violation, then enter a residential area. Torrance Police Detective Rick Crosbie saw Johnson, the driver of the Cavalier, stop in front of a house near Mirandas home. Tucker exited the Cavalier and knocked on the front door. Johnson drove the Cavalier around the block and Tucker disappeared from view but Crosbie saw him a short time later on the sidewalk. As Tucker approached the Cavalier, Jessie M. alighted. The two spoke and then walked toward Mirandas residence.

Torrance Police Officer Eric Dowell saw Tucker and another individual approach Mirandas home. When they returned to the car less than 10 minutes later, each had a pillowcase and other items which they placed in the trunk of the Cavalier. After the Cavalier drove from the scene, a detective determined Mirandas home had been burglarized. Miranda returned home sometime after the lunch hour in response to a telephone call from the police. She found her kitchen window open. The bedroom had been ransacked and property was missing.

4. Arrest of Johnson.

A uniformed officer stopped the Cavalier on Crenshaw Boulevard. Johnson, the driver, had no money on his person. Tucker, one of the occupants, had a watch in his back pocket and a glove. Jesse M., the other occupant of the Cavalier, had $108 in cash. Property was strewn about the passenger compartment of the Cavalier. In the trunk, officers found property taken in the Kawaguchi and Miranda burglaries. Property taken in the Kawaguchi burglary also was found at Jesse M.s residence. Kawaguchi identified the Xbox game system at the Torrance police station. The parties stipulated Tuckers fingerprint was found on a window of Mirandas residence. Johnsons mother was the registered owner of the Cavalier.

4. Defense evidence.

Johnson presented no affirmative defense.

Tucker presented the testimony of his mother and stepfather regarding the search of their home on February 14, 2005.

5. Verdicts and post trial motions.

The jury convicted Johnson as charged; the jury convicted Tucker of the Miranda burglary in count one but acquitted him of the Kawaguchi burglary in count two.

Prior to sentencing, the trial court denied Johnsons motion for disclosure of juror identifying information and his motion for new trial based on juror misconduct.

CONTENTIONS

Johnson contends the evidence does not support his conviction of burglary of the Kawaguchi residence and the trial court erred in denying his post trial motions.

DISCUSSION

1. The evidence amply supports Johnsons conviction on count two.

Johnson contends that, absent some corroborating evidence, his possession of property that recently had been stolen in the Kawaguchi burglary was insufficient to support his conviction of the Kawaguchi burglary. (People v. Mendoza (2000) 24 Cal.4th 130, 175-176.) Johnson asserts none of the evidence presented at trial indicated Johnson knew about or facilitated the Kawaguchi burglary. Johnson reasons that because Tucker was acquitted of count two, the jury must have determined that Johnson and/or Jesse M. committed the Kawaguchi burglary. Johnson claims it is noteworthy that Tuckers attorney admitted in opening statement and closing argument that Tucker was guilty of the Miranda burglary. Johnsons attorney, however, contested both counts. Johnson asserts the jury may have held this against him.

Johnsons claim is meritless.

The Kawaguchi burglary occurred on the evening of February 13, 2005. The next day, February 14, 2005, Johnson sold property taken in the burglary to the Game Stop store. Later that same day, Johnson and his companions burglarized the Miranda residence. When police officers investigating the Miranda burglary stopped the car Johnson was driving, additional property taken from the Kawaguchi residence was found in the trunk. Johnsons commission of the Miranda burglary, in the same geographic area and the day after the Kawaguchi burglary, and hours after he sold property taken in the Kawaguchi burglary, demonstrated that Johnson and his companions were operating pursuant to a common scheme or plan to commit residential burglaries. This provided the needed corroboration that permitted the jury to consider Johnsons possession of recently stolen property as evidence he committed the Kawaguchi burglary. (People v. Mendoza, supra, 24 Cal.4th at p. 176;People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1226.)

With respect to Johnsons reliance on Tuckers acquittal, any inconsistency in the jurys verdict as between two defendants is irrelevant in determining whether there is sufficient evidence to support a conviction. (People v. Palmer (2001) 24 Cal.4th 856, 860-861.)

2. Request for juror identifying information properly denied.

a. Background.

Johnson sought disclosure of juror identifying information based on defense counsels declaration which stated that, after the jury returned its verdict, counsel spoke to several jurors. Counsel declared: At least three of the jurors explicitly stated that during deliberations, the jury discussed and made findings that [the] district attorney had failed to prove beyond a reasonable doubt that defendant Johnson was present at the location of the burglary on February 13, 2005, [and] . . . the prosecution [did not] present sufficient evidence to prove beyond a reasonable doubt that the defendant knew of that burglary prior to, or while it was occurring. [] At least two of the jurors stated that the jury as a whole found the defendant guilty because a portion of a jury instruction mandated they find the defendant guilty. They stated that the jury as a whole decided that there was a paragraph in one jury instruction which stated that the defendant should be found guilty of aiding and abetting if the slightest evidence existed that the defendant was an accessory, such as possession of the property stolen at the burglary. [] One juror indicated it was apparent that defendant Johnson was an aider and abettor on February 13, 2005 because he and the other[s] alleged to have participated in the burglary on February 14, 2005 were probably longtime friends and that [Johnson] knew of the other[] alleged participants criminal propensities and may have lent his car to them to facilitate the burglary on February 13, 2005.

The trial court denied the request for disclosure of juror identifying information, finding defense counsels supporting declaration was insufficient to show that juror misconduct occurred.

b. Johnsons argument.

Johnson contends the trial courts refusal to grant his request for disclosure of juror identifying information was an abuse of discretion. He claims the facts contained in counsels declaration revealed that at least three jurors said the government failed to prove Johnson was either present during the Kawaguchi burglary or knew about the burglary prior to its commission. Nonetheless, the jury convicted Johnson of that charge because Johnson and his companions probably were longtime friends who knew each others criminal propensities.

Johnson asserts counsels declaration established good cause for the disclosure of juror identifying information because the information contained in the declaration revealed the jury improperly relied on the possible prior relationship among the perpetrators of the Miranda burglary to supply the corroboration necessary to permit the jury to consider Johnsons possession of recently stolen property as evidence of his guilt of the Kawaguchi burglary.

Johnson concludes the petition should have been granted and this court must remand the matter for further proceedings on this issue.

c. Relevant principles.

Under Code of Civil Procedure section 237, all personal identification information of jurors sitting on criminal cases must be sealed upon the recording of the jurys verdict. (Code Civ. Proc., 237, subd. (a)(2).) Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to 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).) If the trial court determines 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, subd. (b).)

A trial courts denial of a defendants petition for release of personal juroridentifying information is reviewed on appeal under the abuse of discretion standard. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096; People v. Jones (1998) 17 Cal.4th 279, 317.)

d. Application here.

Johnsons purpose in seeking juror identifying information was to obtain affidavits in support of a motion for new trial based on juror misconduct. However, counsels declaration revealed the only basis for the alleged juror misconduct related to the manner in which the jury applied the instructions to the facts of the case. Thus, the declarations sought by defense counsel would have related to the mental process of the jury and would have been inadmissible under Evidence Code section 1150, subdivision (a).^[2] (People v. Cleveland (2001) 25 Cal.4th 466, 484-485; People v. Jones, supra, 17 Cal.4th at p. 316.)

Consequently, absent a prima facie showing of juror misconduct, the trial court committed no abuse of discretion in denying Johnsons request for release of juror identifying information.

3. Johnson failed to demonstrate he was entitled to a new trial based on juror misconduct.

a. Background.

Juror F. B., one of the jurors at Johnsons trial, signed a declaration in support of Johnsons motion for new trial. Juror F. B. declared the jury agreed there was no physical or circumstantial evidence connecting Johnson to the Kawaguich burglary. However, the jury found there was circumstantial evidence that Johnson aided and abetted the Kawaguchi burglary based on possession of property taken in the Kawaguchi burglary and his presence at the Game Stop. We as the jury understood one of the jury instructions to require a conviction for aiding and abetting a burglary if the possession of stolen property [is] close in time to the burglary. . . . We as the jury discussed and found that the sole evidence introduced at trial that Mr. Johnson was guilty of the [February] 13, 2005 burglary was the stolen property being in Mr. Johnsons possession at the Game Stop and in his vehicle after the burglary of [February] 14, 2005. [] We of the jury discussed during deliberations and agreed that the prosecution did not meet its burden of proof that Mr. Johnson was present at the scene of the burglary at the Kawaguchi home on [February] 13, 2005 or that he knew that a burglary would take place prior to the burglary or was taking place at the time of the burglary. [] . . . Other than the evidence mentioned above, we as the jury found no other evidence of guilt against Mr. Johnson. We as the jury were leaning more towards not guilty but decided that the jury instruction on aiding and abetting regarding stolen property forced us to find Mr. Johnson guilty.

The trial court ruled most, if not all of Juror F. B.s declaration was inadmissible in that it reflected the thought processes of the jury. The trial court stated: Those are this jurors characterizations of discussions. There are no direct quotes or statements of a factual nature but conclusions as to what the jurors discussed or thought. Absent the jurors declaration, the trial court found there was no basis upon which to seek a new trial and denied the motion for new trial. The trial court observed that, even if the declaration were admissible, it failed to state meritorious grounds for a new trial.

b. Johnsons contention.

Johnson contends the trial court erroneously ruled Juror F. B.s declaration inadmissible. Johnson asserts the matters set forth in the declaration were open to sight, hearing and the other senses and thus subject to corroboration. (People v. Steele (2002) 27 Cal.4th 1230, 1261.) Johnson argues the declaration referred to overt acts, statements and conduct by the jurors which should have been considered by the trial court. Further, the described conduct constituted juror misconduct in that it demonstrated the People failed to prove Johnson was at the scene of count two or that he knew the burglary would take place. Johnson asserts Juror F. B.s declaration shows the jury was confused, relied on erroneous information and convicted based on an erroneous standard. Johnson contends the evidence contained in counsels declaration in support of the petition for disclosure of juror information also was sufficient to support the motion for new trial. Johnson concludes he has demonstrated a substantial likelihood of actual prejudice. Thus, reversal on count two is required. (People v. Loot (1998) 63 Cal.App.4th 694, 697; People v. Hord (1993) 15 Cal.App.4th 711, 728.)

c. General principles applicable to a motion for new trial based on juror misconduct.

A criminal defendant may move for a new trial on specified grounds, including juror misconduct. (Pen. Code, 1181, subds. 3, 4; People v. Ault (2004) 33 Cal.4th 1250, 1260.) When a party seeks a new trial based on jury misconduct, the court undertakes a three-step inquiry. First, the court must determine whether the declarations offered in support of the motion are admissible under Evidence Code section 1150. If they are, the court must next consider whether the facts establish misconduct. Finally, assuming misconduct is found, the court must determine whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113; People v. Hord, supra, 15 Cal.App.4th at p. 724.)

In reviewing the denial of a motion for new trial, we accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582.) Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to our independent determination. (Ibid.) The presumption of prejudice may be rebutted, inter alia, by a reviewing courts determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm. [Citations.] (People v. Hardy (1992) 2 Cal.4th 86, 174; People v. Duran, supra, 50 Cal.App.4th at p. 113.) We therefore review de novo the entire record to determine if prejudicial juror misconduct occurred such as would warrant a new trial. (People v. Cumpian (1991) 1 Cal.App.4th 307, 311.)

d. Application here.

Johnson grounded his entitlement to a new trial on Juror F. B.s declaration, which indicated the jury convicted Johnson of the Kawaguchi burglary based on the jurys interpretation of one of the aider and abettor instructions. Before ruling on the motion for new trial, the trial court first addressed whether Juror F. B.s declaration was admissible. The trial court concluded the declaration violated Evidence Code section 1150, in that it disclosed the thought process the jury utilized in reaching its conclusion that Johnson was guilty of count two.

The trial courts ruling in this regard was correct. As discussed in connection with defense counsels declaration in support of Johnsons petition for disclosure of juror identifying information, the declaration of Juror F. B. impermissibly sought to set aside the verdict based on the mental processes of the jury.

Because neither defense counsels declaration nor the declaration of Juror F. B. contained any admissible evidence of juror misconduct, the trial court properly denied the motion for new trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. ALDRICH, J.

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^[1] Tucker is not a party to this appeal.

^[2] Evidence Code section 1150, subdivision (a), provides: 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, condition, or event 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.