P. v. Simmons

Filed 9/25/07 P. v. Simmons CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Defendant James Henry Simmons appeals from his convictions for two counts of forcible oral copulation (Pen. Code, 288a, subd. (c)(2))^[1]and one count of oral copulation with a person under 18 years of age ( 288a, subd. (b)(1)). He contends the trial court erred in summarily dismissing his request to disclose juror identifying information, the trial court abused its discretion in denying his motion for a new trial, and the trial courts delivery of the CALJIC instruction on reasonable doubt rather than the CALCRIM instruction resulted in structural error. We are not persuaded by defendants claims and shall affirm.

STATEMENT OF FACTS^[2]

In November 2004 defendant lived with his wife, his son, and his stepson. Seventeen-year-old A.S. was the girlfriend of defendants stepson and frequently stayed at defendants house.

On November 11, 2004, A.S. was in the house alone with defendant. Defendant asked her to help him move an engine type thing. When she set it down, he grabbed her in a bear hug. He put her on a vehicle in the garage and took off her clothes. He started touching her and she yelled at him, telling him to stop. He hit her in the face. After he hit her, he put his tongue on her vagina a couple of times, and kissed her face and breasts. He tried to have sexual intercourse with her but was unable to do so. Defendant then dragged A.S. into his bedroom and got some hand lotion. He dragged her back to the garage, had sexual intercourse with her, and ejaculated on her face.

PROCEDURAL HISTORY

Defendant was charged by information with forcible rape ( 261, subd. (a)(2) -- count I), two counts of forcible oral copulation ( 288a, subd. (c)(2) -- counts II and IV), one count of sexual penetration by a foreign object with force or violence ( 289, subd. (a)(1) -- count III), one count of oral copulation with a person under 18 years of age ( 288a, subd. (b)(1) -- count V), and one count of sexual penetration by a foreign object on a person under 18 years of age ( 289, subd. (h) -- count VI).

Jury trial began on September 12, 2006. Following the presentation of evidence, defendant moved pursuant to section 1118.1 for a judgment of acquittal on the two sexual penetration with a foreign object counts (counts III and VI). The court granted the motion and the counts were dismissed. On September 15, 2006, following deliberations on the remaining counts, the jury found defendant guilty on both counts of forcible oral copulation and on the count of oral copulation with a person under 18 years of age (counts II, IV, and V). The jury could not reach a verdict on the forcible rape count (count I). Accordingly, the court found the jury deadlocked and declared a mistrial on that count.

On September 21, 2006, defendant filed a motion seeking disclosure of juror identification information pursuant to Code of Civil Procedure section 237. The motion alleged that defense investigator Tony Bennett and defense counsel had spoken with a number of jurors. Those jurors revealed the jury was deadlocked for acquittal 11 to 1 on the forcible rape charge, the jurors finding of force on the two forcible oral copulation charges may have been based upon an erroneous belief that the age difference between defendant and A.S. was sufficient by itself for a finding of duress or force, and that at least one of the jurors harbored substantial misgivings about the verdicts, and may have been subjected to improper persuasion which may or may not amount to jury misconduct. Defense counsel wished to interview the jurors to explore the issue of juror misconduct in the furtherance of a motion for a new trial. On October 16, 2006, the court found that even if it assumed everything in the declaration was true, it did not rise to the level of juror misconduct. Accordingly, the motion was denied without a hearing.

On November 13, 2006, defendant filed a motion for a new trial. Defendant claimed he was entitled to a new trial because trial counsel was ineffective in that he did not advise defendant he had a right to testify in his own behalf. Defendant declared that if he had been advised of his right to testify, he would have chosen to testify. He also declared he could have testified regarding the use of force (if any) and duress (if any). The court denied this motion, finding counsel was not ineffective and there was no prejudice.

DISCUSSION

I. The Court Did Not Abuse Its Discretion by Denying Defendants Request for Juror Identifying Information

Code of Civil Procedure sections 206 and 237 govern the release of juror identifying information. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1319 (Jefflo).) Following a jurys verdict, the defense may seek access to personal juror identifying information for the purpose of developing a motion for a new trial or any other lawful purpose. (Code Civ. Proc.,  206, subd. (g).) A petition for release of personal juror identifying information must be supported with facts sufficient to establish good cause for that release. (Code Civ. Proc.,  237, subd. (b).) Only upon a showing of good cause is a defendant entitled to a full hearing on his petition. (Code Civ. Proc., 206, 237; Jefflo, supra, 63 Cal.App.4th at pp. 1318-1323 & fn. 8.) To establish good cause, a defendant must set forth a sufficient showing to support a reasonable belief that jury misconduct occurred. (See People v. Jones (1998) 17 Cal.4th 279, 317 (Jones); see also Jefflo, supra, 63 Cal.App.4th at pp. 1321-1322, fn. 8.) Our review is deferential; we overturn the trial courts ruling on this issue only if it abused its discretion. (Jones, supra, 17 Cal.4th at p. 317.)

The substantive test for determining whether good cause has been established was set forth in People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes).^[3] In Rhodes, we held that a defendant can establish good cause if he sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial. (Id. at pp. 551-552.)

However, a jurys verdict may not be impeached by inquiry into the jurors mental processes; evidence of how the jurors understood the trial courts instructions is not competent. (People v. Steele (2002) 27 Cal.4th 1230, 1261; see also Evid. Code, 1150 [no evidence is admissible concerning the mental processes by which a verdict was determined].) Similarly, a jury verdict may not be impeached by hearsay affidavits. (People v. Williams (1988) 45 Cal.3d 1268, 1318, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558.)

There was no abuse of discretion here. The information contained in the declaration and affidavit attached to the petition relate only to the subjective reasoning of the jurors and how they understood the trial courts instructions. Such declarations fall squarely within the prohibition against impeaching a verdict with evidence of the jurors mental processes. Furthermore, defendants showing was based solely on hearsay. Accordingly, this record contains no competent evidence of jury misconduct. Because the only purpose for the release of juror information was to impeach the verdict, defendants hearsay affidavits, which related only to the mental processes of the jury, were not sufficient to establish good cause for the release.

II. The Court Did Not Err in Denying Defendants Motion for a New Trial

Defendant sought a motion for a new trial, alleging ineffective assistance of counsel. Although not enumerated as one of the statutory grounds for new trial in section 1181, a trial court may grant a motion for a new trial on the ground of ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To prevail on this ground, it is the defendants burden to demonstrate both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that his counsels deficient performance resulted in prejudice to the defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Callahan (2004) 124 Cal.App.4th 198, 209, 212.) If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

Here, defendant alleged his trial counsel did not advise him of his right to testify at trial. His allegation is supported only by his self-serving declaration that he had not been advised of his right to testify in his own behalf; that if he had been so advised he would have chosen to testify; and that if called as a witness, he could have testified regarding the use of force (if any) and duress (if any) . . . . Though by waiving the attorney-client privilege it was within defendants power to have his trial counsel corroborate his declaration, he did not do so. Thus, there is no declaration from defense trial counsel as to whether he had advised defendant of his right to testify.^[4] Nor does defendant state he was unaware of his right to testify in his own behalf, only that counsel did not so advise him.

As a general rule, self-serving declarations lack trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.) As with most other evidentiary rulings, determinations of the weight and credibility to be given a self-serving declaration fall within the trial courts discretion. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) Here, the trial court accorded defendants declaration little weight and concluded defendant had not established the factual underpinnings of his ineffective assistance claim. We find no abuse of discretion; the trial court properly denied the motion for a new trial grounded on this claim of error.

III. The Use Of CALJIC Rather Than CALCRIM Instructions Was Not Structural Error

Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC instructions and adopted the CALCRIM instructions. The use of the CALCRIM instructions is strongly encouraged. (Cal. Rules of Court, rule 2.1050(e); People v. Thomas (2007) 150 Cal.App.4th 461, 465.)

Defense counsel requested the court use the CALCRIM instructions and objected to the use of the CALJIC instructions. On appeal, defendant specifically objects to the use of CALJIC No. 2.90 defining reasonable doubt, rather than the use of CALCRIM No. 103 defining reasonable doubt. Defendant contends the CALCRIM instructions are a more accurate and clearer statement of the law and the CALCRIM reasonable doubt instruction at least does not provide the overly broad and vague definition using such archaic terms as CALJICs abiding conviction. Defendant contends the use of the CALJIC instructions prejudiced him because the jury was confused and therefore not instructed on the proper burden of the People. We are not persuaded.

Section 1096 is the statutory definition of reasonable doubt. Under section 1096, [r]easonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. In pertinent part, CALJIC No. 2.90 gives an identical definition of reasonable doubt.

The California Supreme Court has long since declined the urging of defendants to declare section 1096 and CALJIC No. 2.90 unconstitutional. (People v. Adcox (1988) 47 Cal.3d 207, 242-243 (Adcox).) CALJIC No. 2.90 is a verbatim copy of the statute on the definition of reasonable doubt. (Ibid.) While CALJIC No. 2.90 may be subject to criticism for its anachronistic language, it has for many years provided the benchmark for defining the standard of proof required for conviction in a criminal proceeding and is undoubtedly correct if properly understood. (People v. Crandell (1988) 46 Cal.3d 833, 881.) [T]he remedy for any perceived deficiency in that sections codification of the reasonable doubt standard is not judicial but legislative. (Adcox, supra, 47 Cal.3d at pp. 242-243.)

Defendants claim that the CALCRIM instructions do not use such archaic terms as abiding conviction is incorrect. CALCRIM No. 103 states, in part: Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. (Italics added.)

While CALCRIM No. 103 may be a clearer statement of the law, that does not render CALJIC No. 2.90 an incorrect statement of the law. Rather, both instructions are accurate statements of the law. In fact, both instructions are substantively the same.

We also agree that the court probably should have used the CALCRIM, not the CALJIC instructions. However, the use of the CALCRIM instructions was not mandatory, but merely strongly encouraged and recommended. (Thomas, supra, 150 Cal.App.4th at p. 465.) We cannot find the trial court erred by instructing the jury with a legally valid and acceptably worded CALJIC instruction on reasonable doubt.

Furthermore, [e]ven if this were error, it would not constitute structural error, which refers to an error that affects the framework within which the trial proceeds and therefore defies harmless error analysis, rather than simply an error in the trial process itself. [Citation.] Structural errors in the criminal context include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendants race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous jury instruction on reasonable doubt. [Citation.] The prejudicial impact, if any, of an error consisting of the use of one form of a jury instruction correctly stating the law, as opposed to another instruction also correctly stating the same legal principles, can readily be assessed. Such an error does not affect the framework within which the trial proceeds, but is simply an error in the trial process itself. [] Because the instructions given were correct statements of the relevant legal principles, the purported error was necessarily harmless. [Defendants] jury was neither incorrectly nor inadequately instructed. (Thomas, supra, 150 Cal.App.4th at p. 467.)

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS, Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] As there is no claim regarding sufficiency of the evidence, the underlying facts are briefly recounted. (See People v. Stowell (2003) 31 Cal.4th 1107, 1111.)

^[3] Although Rhodes was decided prior to the present enactments of Code of Civil Procedure sections 206 and 237 requiring a showing of good cause (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1095-1096; Jones, supra, 17 Cal.4th at p. 317), the Rhodes test has been held to apply to the current statutory requirement (Jefflo, supra, 63 Cal.App.4th at p. 1321, fn. 8; People v. Duran (1996) 50 Cal.App.4th 103, 115-123; People v. Wilson (1996) 43 Cal.App.4th 839, 849-852; People v. Granish (1996) 41 Cal.App.4th 1117, 1126-1129.)

^[4] In their opposition to defendants motion, the People stated that trial counsel had been contacted and had indicated he would maintain the attorney-client privilege until defendant waived it in court.