Filed 4/24/17 P. v. Lee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

DUEWA ABEANA LEE,

Defendant and Appellant.


C074787

(Super. Ct. No. 11F06974)


Defendant Duewa Abeana Lee physically abused her incarcerated boyfriend’s 12-year-old daughter, C., over the span of two months. The abuse ranged in severity from striking the child’s hands with a spatula, to repeatedly hitting her with an extension cord, to burning her with various objects, including a pan defendant heated on the stove. As we describe in greater detail later in this opinion, these acts are merely a sampling of the torture the child endured.
Defendant was convicted by jury of one count of torture, two counts of mayhem, six counts of infliction of cruel or inhuman corporal injury to a child, and two counts of child abuse. With respect to each count of cruel or inhuman corporal injury, the jury also found defendant personally inflicted great bodily injury on the child; with respect to four of those counts, the jury further found defendant personally used a deadly or dangerous weapon in committing the offense. The trial court sentenced defendant to prison for an indeterminate term of life with the possibility of parole consecutive to a determinate term of nine years four months.
On appeal, defendant contends: (1) the trial court prejudicially erred in admitting into evidence the Special Assault Forensic Evaluation (SAFE) interview of defendant’s three-year-old son, T., because his competence at the time of the interview was not established; (2) the trial court prejudicially erred and violated defendant’s federal constitutional right to due process by admitting evidence of other acts of child abuse committed by her against her children; (3) the trial court prejudicially erred and further violated her right to due process by instructing the jury with CALCRIM No. 852 regarding the proper use of such other acts evidence; (4) the trial court prejudicially erred in denying defendant’s post-verdict petition for disclosure of juror identifying information; and (5) defendant’s sentence amounted to cruel and unusual punishment.
We disagree and affirm. As we explain, the SAFE interview and other acts evidence were properly admitted. Defendant’s challenge to CALCRIM No. 852 as argumentative is both forfeited and without merit. The trial court did not abuse its discretion in denying defendant access to juror information. And finally, defendant’s assertion a life sentence for torture amounts to cruel and unusual punishment is patently absurd. The only punishment in this case that was cruel and unusual was that endured by defendant’s 12-year-old victim.
FACTS
In July 2011, C. lived with her father, Wade, and his girlfriend, defendant, in the Florin area of Sacramento. C. was 12 years old. Defendant’s six children also lived at the house, three of whom are relevant to our recitation of the facts: P. and A., two of defendant’s daughters, were 13 and 12 years old, respectively; and T., one of defendant’s sons, was three years old. At the end of July, Wade was arrested and ultimately sent to prison for committing a robbery. C. remained at the house. P. moved in with her aunt in Los Angeles around the first week of August.
While Wade lived at the house, C. had her own bedroom and defendant’s children shared two bedrooms. After he was arrested, defendant moved C. into one of the shared bedrooms, where she would often be required to sleep on the floor. C.’s chores around the house also changed. Prior to Wade’s arrest, the children shared in the chores. Afterwards, defendant required C. to do them all.
Torture and Physical Abuse
Defendant’s torture and physical abuse of C. also began after Wade’s arrest. C. testified that after she was done with her morning chores, defendant would make her stand in the corner of defendant’s bedroom while balancing on one leg with her arms raised above her head. Sometimes she would have to stand in the corner for the entire day.
When defendant believed C. had done something wrong, she would make the child hold her hands out with the palms up and then strike them with a metal spatula, which sometimes caused her hands to bleed. On one occasion, defendant heated that spatula on the stove and placed the object against her buttocks, causing burns. Defendant also burned C.’s buttocks and back with a pan she also heated on the stove. She did this because C. had not washed the dishes to defendant’s satisfaction. On another occasion, while C. was standing in the corner of defendant’s room, defendant burned her with the tip of a clothes iron because she believed C. had lied about something.
On many occasions, defendant struck C.’s legs and back with an extension cord. On many other occasions, defendant pushed C. to the ground and kicked her in the chest and abdomen, sometimes causing her to black out. On one occasion, defendant pushed C. down the stairs in the house, told her to come back up, and then pushed her down the stairs a second time, causing her head to strike the wall. On another occasion, defendant pushed C. into the window in the bedroom she shared with two of defendant’s daughters, causing the window to break. She then blamed C. for the broken window and made her sleep on the floor without a blanket. On yet another occasion, defendant twice stapled C.’s ear. When the first staple did not go all the way through, she had A. hold C. down while she stapled the ear again.
C. further testified that whether she was allowed to eat or not depended on defendant’s mood: “If she was like happy, then she would let me. But if she was like mad or she wasn’t like in the mood for something, then she wouldn’t.” Defendant told C. it was her father who did not want her to eat. When C. finally reported the abuse to a stranger at the DMV at the end of September, she had not eaten for three days.
Report of the Abuse
C. reported the abuse on September 30, 2011, about two months after it began. That morning, defendant planned to take C. to her school to return her books, having decided the day before she would no longer be allowed to go. Before returning the books, defendant took C. and the three youngest children to the DMV while the older children were at school. They sat next to Carol Berkley and her 16-year-old daughter. At some point, defendant went outside with her two young sons, which provided C. with the opportunity to ask Berkley for help. As Berkley explained, while C. appeared to be “very frightened, very timid, very unsure,” she quietly and clearly conveyed she was being abused and needed help. In response to questioning from Berkley, C. revealed some of the details, including “that she had been pushed down stairs” and “that she had [been] pulled from school because [defendant] was afraid that she would be found out.” Defendant returned with the boys a short time later, at which point Berkley pretended nothing had happened, waited for her number to be called, and then revealed what C. had told her to the DMV employee behind the counter. That employee informed her supervisor of the situation, who called law enforcement.
Law enforcement officers arrived a short time later. One of the responding officers spoke to C. in a break room at the DMV. C. told the officer defendant was abusing her. The officer also noticed an open wound on the child’s left ear. She informed him defendant had stapled her ear. Another officer transported C. to Sutter Memorial Hospital for a medical examination. C. also told this officer she was being abused by defendant and explained the abuse began after her father was arrested and continued for the next two months. She recounted most of the abuse to which she would later testify at trial, including being pushed down the stairs, being pushed to the ground and kicked in the stomach multiple times, being hit with a frying pan, being burned with a heated spatula and clothes iron, and being struck on the legs with an extension cord. C. also revealed defendant’s practice of making her stand in the corner on one leg with her arms over her head and she was required to sleep on the floor without a blanket.
Physical Injuries
C.’s medical examination corroborated her allegations of abuse. As the doctor who examined her testified, it “appeared that her entire body was covered with injuries.” C. had multiple bruises on her neck, collarbone, and right ear that were no more than a week old. Her left ear had built up scar tissue, commonly referred to as “cauliflower ear,” an injury caused by repeated blows to the ear and often seen on boxers or wrestlers. C. had injuries inside of her mouth, including a deep laceration of the tongue, consistent with being hit in the face no more than a few days before.
C. had more than two dozen loop-shaped marks on her legs, back, shoulders, and chest, some bruises and some scars. Each was consistent with having been hit with a cord. The bruises were no more than a week old. The scars were older than that and were likely caused by the skin tearing while being hit and subsequently forming scar tissue. In addition to these loop-shaped marks, C. also had bruising to her chest and abdomen that was consistent with having been “stomped” by a shoe, including some with a “stripe pattern” resembling “hash marks.” Again, this bruising was no more than a week old. Her claims of being burned with a spatula were also corroborated by “extensive burns on the buttocks” that were caused by an object that had a “very square sort of edge to it.” These burns were in the process of healing that indicated they were likely inflicted within the previous month.
When the doctor examined C.’s abdomen, the child was in obvious pain. An emergency CT scan revealed internal injuries to her liver, pancreas, and small intestine. While these injuries did not require surgical intervention, the doctor considered them “very severe” and “potentially life threatening,” explaining: “She could have died if she had another injury to the abdomen or even just with normal activity, if she had continued injury to the liver, she could have died.” The doctor also estimated these internal injuries were inflicted within a few days of the examination.
Additional Evidence
The nature of the issues raised in this appeal do not require us to recount the additional evidence adduced against defendant in any detail. For our purposes, it will suffice to note P., who again was living with her aunt in Los Angeles since the beginning of August, was contacted by a social worker with Child Protective Services (CPS) in October 2011 and brought to Sacramento. P. told both the social worker and a detective who subsequently interviewed her that defendant physically abused C. P. also revealed defendant told her to take the blame for inflicting C.’s injuries. At trial, P. did just that, explaining she and C. got into fist fights and hit each other with various objects, including extension cords. However, even according to P.’s testimony, the last time she and C. got into such a fight was two weeks before she moved to Los Angeles, making it impossible for her to have inflicted any of the fresh bruising on C.’s body or any of the internal injuries. P. also denied seeing defendant abuse C. and claimed Wade “did all of it.” But again, the bruising and internal injuries were inflicted within days of C.’s medical examination, when Wade was in prison. Wade also testified he did not abuse his daughter, whom he referred to as “my heart.”
T. was also interviewed in October 2011. He was three years old. During the interview, he said C. was “whooped” by defendant “two times.” On one occasion, C. was hit on the hand with “the clocker,” i.e., the metal spatula. There was blood on her hand, C. started crying, and defendant yelled: “Go wash your hand! Go wash your hands!” T. said defendant would also “whoop her” “on her leg.” This interview was played for the jury to rebut then-five-year-old T.’s trial testimony, in which the boy claimed C. had not been “whooped” by his mother.
C.’s testimony regarding the abuse suffered at the hands of defendant was further corroborated by the fact DNA extracted from apparent blood stains on a metal spatula and clothes iron seized from the house matched C.’s DNA. There was also a dent in one of the walls of the stairwell, blood on the wall and carpet below the dent, and one of the windows in an upstairs bedroom was broken.
Finally, we also note both P. and A. previously accused defendant of abusing them. These prior allegations of child abuse will be described in greater detail in the discussion portion of this opinion.
The Defense
Defendant testified in her own defense. She denied C.’s allegations of abuse. She also claimed Wade was the one who disciplined the children and he would hit C. with an extension cord. She further claimed P. and C. would routinely punch each other, both before and after Wade’s arrest.
A. also testified on her mother’s behalf. She testified she saw Wade punch C., throw her down the stairs, and hit her with his hand, a belt, and an extension cord. She denied seeing her mother hit, kick, or burn C., denied helping defendant staple C.’s ear, and claimed the injury to the ear was a bug bite. According to A., C. made up the allegations of abuse because she was upset about being homeschooled.
DISCUSSION
I
Admission of T.’s SAFE Interview
Defendant contends the trial court prejudicially erred in admitting into evidence T.’s SAFE interview because that interview did not establish his competence. We disagree.
“Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700, italics added.) Section 701 provides that a person is disqualified to be a witness if he or she is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood” or “[i]ncapable of understanding the duty of a witness to tell the truth.”
Defendant does not challenge T.’s competence to testify at trial, when he was five years old. The trial court examined the child prior to his testimony and found him to be a “bright young man” who understood the obligation to tell the truth. Instead, defendant challenges T.’s competence during the SAFE interview, when he was three years old. As mentioned, this interview was played for the jury to impeach his trial testimony. In overruling defense counsel’s competence objection to this evidence, the trial court noted it viewed the video and determined “he appeared to be very bright and very well oriented to -- you know, developmentally very, as I said, aware, enough that his responses could be used in that context and considered by the jury, and that the issues you raise are certainly legitimate issues for the purpose of argument as to what weight, if any, they should give to those statements, but not the basis to preclude them.”
The Attorney General argues, “section 701 specifically involves a person’s competence to be a witness at trial” and “has no application to out of court statements.” As the Attorney General correctly observes, defendant “has cited no case that requires a specific finding of competence as to extrajudicial statements of a witness.” We also note that where hearsay is admitted in lieu of a deceased declarant’s testimony, the question of whether that hearsay is sufficiently reliable to be admitted is “intertwined with the issues of whether the declarant is competent to be a witness and has the required personal knowledge” under sections 701 and 702. (People v. Tatum (2003) 108 Cal.App.4th 288, 297.) But here, T. testified at trial and was properly found to be competent to do so. The SAFE interview was admitted, not in lieu of his testimony, but to impeach it, and no argument is made that it was inadmissible under section 1235 for this purpose. We conclude defendant has not carried her burden on appeal of persuading us section 701 provides a separate requirement for admission of a prior inconsistent statement under section 1235.
In any event, even if there is such a requirement, we cannot disturb the trial court’s finding of competence in this case. “A witness is presumed competent absent a showing to the contrary. [Citation.] The competency of a witness is to be determined by the trial court, whose decision is not to be disturbed in the absence of a clear abuse of discretion. [Citations.] The witness’ competency depends upon his [or her] ability to perceive, recollect and communicate; whether he [or she] did so accurately and truthfully is a question of credibility to be resolved by the trier of fact. [Citations.]” (People v. Willard (1983) 155 Cal.App.3d 237, 239-240.) Here, the trial court reviewed the video of the SAFE interview and determined T. was competent during that interview. We have also reviewed the video and reach the same conclusion. While T. was hard to understand at times, he was able to convey his observations to the interviewer. He also answered a series of questions regarding true and false statements, and while he did appear to get confused on occasion, he generally revealed an understanding of the difference between the two kinds of statements and indicated he understood the interviewer’s admonishment that he was only to tell her the truth. Whether to believe his statements made during the interview or his trial testimony was for the jury to decide.
The trial court did not abuse its discretion in admitting the SAFE interview.
II
Admission of Uncharged Acts of Child Abuse
Defendant also claims the trial court prejudicially erred and violated her federal constitutional right to due process by admitting evidence defendant previously abused her children. She is mistaken.
A.
Challenged Evidence
Defendant challenges the admission of the following evidence. A police officer testified he spoke to P. in April 2010 in response to a call of possible child abuse. P. told the officer she and defendant got into an argument, during which defendant “grabbed her by the collar and pushed her against the wall,” choking her when she did so, and then “threw her down on the ground” and “stomped on her chest, stomach and left ankle.” P. claimed such abuse had been going on for about two years. The officer also spoke to A., who stated defendant hit the children with a belt and slapped them in the mouth.
The trial court also admitted evidence that during P.’s conversation with the social worker who returned her to Sacramento in October 2011, P. claimed she repeatedly ran away to escape defendant’s abuse and defendant “whooped” all the children. During P.’s subsequent interview with the detective, she also claimed defendant abused her, adding she was hit with a hanger, a high chair tray, and a spatula. She further described an occasion defendant hit A. and caused her head to strike a car window.
B.
Analysis
With certain exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (§ 1101, subd. (a).) One such exception is found in section 1109, subdivision (a)(3), that generally provides, “in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Thus, section 1109 conditions the admissibility of evidence of uncharged acts of child abuse to prove a defendant committed a charged act of child abuse on a finding the probative value of the evidence is not substantially outweighed by the danger of undue prejudice flowing from its admission. (See § 352.) “We review a challenge to a trial court’s decision to admit such evidence for abuse of discretion.” (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) However, “careful weighing of prejudice against the probative value under [section 352] is essential to protect a defendant’s due process right to a fundamentally fair trial.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Defendant argues the trial court “basically by-passed” the section 352 analysis. Not so. In allowing the challenged evidence to be admitted under section 1109, the trial court specifically stated: “I have been mindful of the concerns regarding the nature of the allegations and the -- an examination under [section] 352. In the Court’s view these are highly probative not simply to the issue of propensity -- and they are quite probative on the issue of propensity in the Court’s view -- but secondarily, on a very key point, which is witness credibility, which is one of the key aspects of an evaluation of this case. The jury will have to undertake an evaluation of the complaining witness or victim and her allegations. And as I understand, the other two children will be offering testimony. It’s anticipated that they would recant or deny these prior acts of violence, but in the Court’s view, with the number of reports that were made and the nature of the allegations made, the substance of them and their similarity in some key respects, they do give the jury evidence with which they can evaluate the mindset of the children who will be testifying and perhaps better evaluate the motivation or the situation -- the motivation of these witnesses and the situation in which these children find themselves. [¶] So I think it is highly probative on the issue of credibility as well as the issue of propensity. The Court has to balance the probative value against the potential for undue prejudice, the risk that the jury will misuse in some way this evidence or evaluate it in a non-permitted way. In the Court’s view the offense[s] described by these other children are not more inflammatory or more serious or egregious than the facts that the jury will hear regarding [C.] And, in fact, they, in the Court’s view, give a fair amount of context to that situation. Therefore, on balance I cannot say that the risk of undue prejudice would outweigh the strong probative value of this evidence. The events are not unduly remote, I will note. As I’ve said, I’ve evaluated the nature of the allegations and the individual types of abuse that are described in these prior events.”
Far from bypassing section 352, the trial court’s analysis under this provision was quite thorough. We also agree with its assessment the probative value was not substantially outweighed by the danger of undue prejudice or any of the other statutory counterweights set forth in section 352. Because P. and A. testified they were not abused by defendant, their prior inconsistent statements accusing her of such abuse were critically important to the jury’s assessment of their credibility and could also be considered by the jury to prove the truth of the matters asserted, i.e., defendant did in fact commit the prior acts of child abuse. (§ 1235.) If the jury concluded these prior allegations were true, it could conclude from this that defendant was predisposed to committing acts of child abuse and therefore was more likely to have also abused C. (§ 1109, subd. (a)(3).) The similarity of the prior accusations to those made by C. makes this evidence highly probative for this purpose. For example, both C. and P. claimed defendant pushed them to the ground and then stomped on their abdomens. Both claimed she pushed them into a wall. Both claimed she hit them with a spatula. On the other side of the balance, these prior accusations were mild compared to the charged acts of abuse and torture suffered by C. Nor was there any danger of confusing the issues, misleading the jury, or consuming an undue amount of time. The evidence was admitted expeditiously and, as the trial court observed, the prior allegations were likely to elucidate the situation in which the children were living rather than confuse or mislead. There was no abuse of discretion.
Nevertheless, defendant argues no showing was made P. or A. were actually abused, and therefore, “[o]bviously, the lack of substantiation means the trial court failed to consider this total lack of corroboration and thus, the supposed weighing was an abuse of discretion.” This argument conflates substantiation with corroboration. While defendant is correct section 1109, subdivision (a)(3), requires the trial court to consider “any corroboration” in engaging in its section 352 analysis, this does not mean prior acts of child abuse must be substantiated in a CPS report in order to be admissible under section 1109. The April 2010 allegation of abuse made by P. was corroborated by A.’s similar allegation made to the same officer, and vice versa. P.’s subsequent allegation of abuse made to the social worker and detective in October 2011 was corroborated by her prior consistent allegation made in April 2010. Nor does section 1109 require the trial court to specifically state it considered such corroboration in its section 352 analysis. As our Supreme Court has explained, “when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213, citing People v. Lucas (1995) 12 Cal.4th 415, 448-449.) We perceive no reason the same standard should not apply to the trial court’s consideration of corroboration.
We conclude the record is more than sufficient to demonstrate the trial court understood and fulfilled its responsibilities under sections 352 and 1109. Because there was no abuse of discretion under section 352 in admitting the challenged evidence, we must also conclude defendant’s due process rights were not violated. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1029, citing People v. Falsetta (1999) 21 Cal.4th 903, 916-918.)
III
CALCRIM No. 852
Defendant further asserts the trial court prejudicially erred and violated her right to due process by instructing the jury with CALCRIM No. 852. Defendant did not object to this instruction at trial. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no error, much less a miscarriage of justice. The claim is therefore forfeited.
As delivered to the jury in this case, CALCRIM No. 852 provides: “The People have presented evidence that the defendant committed child abuse that was not charged in this case. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to herself or someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence the defendant, in fact, committed the uncharged child abuse. Proof by a preponderance of evidence is a different burden from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide the defendant committed the uncharged child abuse, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit child abuse, and based on that decision, also conclude the defendant was likely to commit the offenses charged involving child abuse as charged here. If you conclude the defendant committed the uncharged violence, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that defendant is guilty of the charged offenses. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] You may also consider this evidence for the limited purpose of evaluating the credibility of [P.] and [A.]”
We have previously rejected a due process challenge to this instruction. (People v. Johnson (2008) 164 Cal.App.4th 731, 739-740.) For the same reasons expressed therein, we also reject defendant’s assertion the instruction lightened the prosecution’s burden of proof in this case. We also reject her argument CALCRIM No. 852 is argumentative under the standard of People v. Wright (1988) 45 Cal.3d 1126. Indeed, in People v. Kelly (1992) 1 Cal.4th 495, our Supreme Court rejected the same argument with respect to an analogous consciousness-of-guilt instruction because that instruction, like CALCRIM No. 852, did “not merely pinpoint evidence the jury may consider,” but also informed the jury the evidence “is not sufficient by itself to prove guilt.” (Kelly at p. 531, italics added.) Similarly, here, CALCRIM No. 852 highlighted the uncharged child abuse evidence in order to inform the jurors it was not sufficient to prove defendant’s guilt, but also informed the jury such evidence could be considered in conjunction with all of the other evidence. As our Supreme Court explained in Kelly: “If the [trial] court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error.” (Id. at pp. 531-532.)
Defendant’s assertion of instructional error is therefore forfeited.
IV
Denial of Defendant’s Petition for Juror Identifying Information
Defendant further asserts the trial court prejudicially erred in denying her petition for disclosure of juror identifying information. We disagree.
A.
Additional Background
Following the verdicts, defendant filed a motion for new trial based on alleged juror misconduct and a separate petition requesting juror identifying information. As set forth in defense counsel’s declaration in support of the latter petition, he was “informed and believe[d]” that “two African American male jurors had inappropriate contact with persons associated with the victim advocate and prosecution.” The basis for this belief was set forth more fully in the memorandum of points and authorities: “On the day of the verdicts, defendant’s sisters . . . advised defense counsel that they had witnessed what looked like inappropriate interaction between two male African American jurors and an unknown woman who was observed to associate with the victim advocate and the District Attorney.” The sisters did not file declarations of their own. However, they were contacted by a defense investigator and “describe[d] the two African American jurors ‘huddling’ with one woman who was later introduced to the Deputy DA in the hallway and appeared to have some association with the victim advocate. A second woman also appeared to be part of the conversation that occurred during the ‘huddle.’ These two women were not observed inside the courtroom during the course of the trial.”
The trial court denied the request for juror identifying information, finding defendant did not make a prima facie showing of good cause for disclosure of such information. The trial court thereafter also denied the motion for new trial.
B.
Analysis
“Under Code of Civil Procedure section 237, in a criminal case, the trial jurors’ ‘personal juror identifying information’—defined as their names, addresses, and telephone numbers—must be sealed after their verdict is recorded. (Code Civ. Proc., § 237, subd. (a)(2).) However, ‘[a]ny person may petition the court for access to these records. The petition shall be supported by 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); see Code Civ. Proc., § 206, subd. (g).) [¶] If the trial court finds that the moving party has made a prima facie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. (Code Civ. Proc., § 237, subd. (b).) The trial jurors are entitled to notice, an opportunity to object to disclosure, and an opportunity to appear. (Code Civ. Proc., § 237, subd. (c).) [¶] If none of the jurors object, the trial court must grant disclosure. However, if a juror is unwilling to be contacted, the trial court must deny disclosure. (Code Civ. Proc., § 237, subd. (d).)” (People v. Johnson (2013) 222 Cal.App.4th 486, 492.)
Thus, the petition to access juror identifying information must be “supported by 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), italics added.) Good cause, in this context, means “a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552, superseded by statute on other grounds as noted in People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
Here, the declaration submitted by defense counsel in support of the petition simply states he was “informed and believe[d]” that “two African American male jurors had inappropriate contact with persons associated with the victim advocate and prosecution.” The declaration contains no facts as to who these “persons” were, how they were “associated with the victim advocate and prosecution,” or what the “contact” between the two jurors and these persons consisted of. The trial court therefore had no basis to conclude the contact was “inappropriate,” as characterized by defense counsel in the declaration. Moreover, even if the declaration contained the missing facts upon which the petition relied, i.e., those set forth in out-of-court statements made by defendant’s sisters concerning the “huddle” they purportedly witnessed, we would still conclude the trial court did not abuse its discretion in finding no good cause for disclosure. As our Supreme Court has stated in the context of reviewing a decision to deny a new trial motion without a hearing: “Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim of juror misconduct.” (People v. Hayes (1999) 21 Cal.4th 1211, 1256.) Where such a claim is supported only by hearsay, the trial court is ordinarily “justified in according little, if any, credence to the assertions the [declarant] would not verify” in a declaration of his or her own. (Ibid., citing People v. Cox (1991) 53 Cal.3d 618, 697-698, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We conclude the same reasoning applies in the context of reviewing a decision to deny access to juror identifying information. Indeed, in this context, the statute requires the facts supportive of the petition to be included in a declaration.
The trial court did not abuse its discretion in denying defendant’s petition for access to juror identifying information.
V
Cruel and Unusual Punishment
Finally, defendant claims her sentence amounted to cruel and unusual punishment. Not so.
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishment” and “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citation.]” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108] (Ewing).) What is required is not “ ‘strict proportionality between crime and sentence. Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’ [Citation.]” (Id. at p. 23.)
Relying on Coker v. Georgia (1977) 433 U.S. 584 [53 L.Ed.2d 982], defendant argues her sentence of life with the possibility of parole plus nine years four months is “an absurdity that serves no legitimate penal purpose.” However, Coker held the death penalty is “grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” (Id. at p. 592.) Thus, Coker is so factually dissimilar as to offer defendant no assistance whatsoever.
Instead, Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836], is the more analogous authority. There, the high court held a sentence of life without the possibility of parole imposed for the crime of possession of 672 grams of cocaine did not violate the Eighth Amendment. While there was no majority opinion with respect to whether such a sentence was grossly disproportionate to the crime, the approach employed by Justice Kennedy in his concurring opinion was later employed in Justice O’Connor’s lead (although also not majority) opinion in Ewing, supra, 538 U.S. 11, a case upholding a three strikes sentence of 25 years to life for stealing golf clubs. In Harmelin, Justice Kennedy explained, while the sentence of life without parole is “the second most severe penalty permitted by law,” the crime of possessing such a large quantity of cocaine “threatened to cause grave harm to society.” (Harmelin, supra, 501 U.S. at p. 1002 (conc. opn. of Kennedy, J.).) Citing a number of cases, including Hutto v. Davis (1982) 454 U.S. 370 [70 L.Ed.2d 556], in which a majority of the court upheld a sentence of 40 years for possession with intent to distribute nine ounces of marijuana against a proportionality attack, Justice Kennedy concluded: “The severity of petitioner’s crime brings his sentence within the constitutional boundaries established by our prior decisions.” (Harmelin, supra, 501 U.S. at p. 1004 (conc. opn. of Kennedy, J.).)
Here, defendant received a far less severe punishment for committing a far more serious offense, the torture of a 12-year-old girl. As we previously described, the injuries defendant inflicted upon C.’s internal organs were such that another round of abuse might well have killed her. The only punishment in this case that was cruel and unusual was that inflicted by defendant.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.

We concur:


/s/
BUTZ, Acting P. J.


/s/
MAURO, J.