Opinion
D071343
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. KETTRELL LAMAR BERRY, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Christine Yoon Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD260136) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Christine Yoon Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
The People charged Kettrell Lamar Berry with two counts of unlawful sexual intercourse with a minor more than three years younger than him (Pen. Code, § 261.5, subd. (c)) (counts 1, 2); two counts of committing a lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(l)) (counts 3, 4); two counts of oral copulation between an individual over 21 years of age and a person under 16 years of age (§ 288a, subd. (b)(2)) (counts 5, 6); two counts of oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)) (counts 7, 8); four counts of sexual penetration by a foreign object of a person under 16 years of age by a person over 21 years of age (§ 289, subd. (i)) (counts 9, 10, 11, 12); and one count of sexual penetration by a foreign object of a person under 18 years of age (§ 289, subd. (h)) (count 13).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
A jury found Berry guilty of counts 1 through 6, 8 through 11, and count 13, and found him not guilty of counts 7 and 12.
On appeal, Berry claims that the trial court erred in discharging a juror due to the juror's impermissible bias against individuals with a substance abuse history, and further erred in denying his motion for a mistrial premised on the discharge. Berry also claims that the trial court abused its discretion in denying his petition for access to juror identifying information. Finally, Berry claims that the court abused its discretion in denying his motion for new trial given the trial court's alleged error in discharging the juror, evidence that the newly constituted jury did not begin deliberations anew after the discharge, and evidence that several jurors had prejudged the case. We reject Berry's claims and affirm the judgment.
II.
FACTUAL BACKGROUND
We provide an abbreviated summary of the facts presented at trial, given the nature of Berry's claims on appeal. Our summary places "emphasis upon issues related to the alleged [jury] misconduct" that forms the basis of Berry's principal contention on appeal. (People v. Nesler (1997) 16 Cal.4th 561, 565 (Nesler), lead opn. of George, C.J.)
A. The People's evidence
1. Berry engages in sexual acts with Elizabeth C.
Berry worked as a faculty supervisor at the San Diego Center for Children (SDCC), a school and residential facility for children with emotional and behavioral issues. The victim, Elizabeth C., started attending SDCC in December 2011.
Shortly after Elizabeth C. arrived at SDCC, she began to confide in Berry. Beginning in late January 2012, and continuing for several months, Berry and Elizabeth C. engaged in sexual acts at the school on numerous occasions.
Elizabeth C. disclosed the sexual relationship to a therapist at SDCC in April 2012.
2. Elizabeth's substance abuse history
Elizabeth C. began using drugs when she was 12 or 13. Although she mainly used marijuana, she also began using methamphetamine when she was 14. Elizabeth C. was required to take mandatory drug tests while enrolled at SDCC. She passed all of the tests.
3. Evidence of Berry's other sexual acts
The People presented evidence that Berry had fondled a student at SDCC in 2003 and that he had engaged in a sexual relationship with a former student of SDCC shortly after she left the school.
4. Semen evidence
On one occasion, after having sex with Elizabeth C. in a classroom at SDCC, Berry's semen dripped onto the carpet. Berry's DNA was later detected in a stain on the carpet. B. The defense
Berry testified at trial. He denied having had any sexual contact with Elizabeth C. and denied having inappropriately touched the SDCC student in 2003. Berry acknowledged having had a sexual relationship with a former SDCC student approximately seven months after the former student left SDCC. The former student was an adult at the time Berry engaged in a sexual relationship with her.
Berry admitted that he falsely told two female employees of SDCC with whom he was having sexual relations that he had had a vasectomy so that he could continue to have sex with the women. Berry suggested that the semen stain on the carpet that contained his DNA was likely the result of an incident during which he had sexual intercourse with one of the female employees in a classroom at SDCC.
III.
DISCUSSION
A. The trial court did not err in discharging a juror due to the juror's impermissible bias nor in denying Berry's motion for a mistrial premised on the discharge of the juror
Berry claims that the trial court erred in discharging a juror on the ground that the juror demonstrated an impermissible bias against individuals with a substance abuse history and also erred in denying his motion for a mistrial premised on the discharge.
1. Factual and procedural background
a. The jurors' notes and the court's responses
After the jury had been deliberating for approximately one day, Juror No. 9, the foreperson, sent the court a note that stated that the jury was unable to reach a verdict on any of the charges. The court consulted with counsel and then instructed the jury with CALCRIM No. 3551 concerning the manner by which it should conduct further deliberations.
CALCRIM No. 3551 is a standard jury instruction that is given to juries that are having difficulty reaching a verdict. The instruction tells the jurors not to hesitate to reexamine their own views and to not change a position just because it differs from that of other jurors in order to reach a verdict.
After instructing the jurors with CALCRIM No. 3551, the court asked the jurors whether the court could provide any guidance or clarification that would assist them with their deliberations. Juror. No. 5 stated:
"I have a couple areas I am kind of questioning. [¶] You know, for evidence -- I guess my take on this is if we are basing it on what we experienced in this courtroom and the witnesses, they are considered the evidence or factor when we are making our decision [sic]. And I think part of that [sic] problem in our group is that people are basing it on emotion or what he-say she-say. They don't consider it as part of evidence. [¶] So my question is[,] isn't it considered evidence when a witness gets up there on the stand and talks about what occurred or what happened?"
The court responded that a witness's testimony is evidence and that the jury is charged with determining how much weight to give to the evidence. The court asked whether there was a particular witness whose testimony it would be helpful for the jury to hear again. Juror No. 5 requested that the court have Elizabeth C.'s testimony read back, and Juror No. 11 requested that Berry's testimony be read back. The court indicated that it would have the requested testimony read back and released the jury to listen to the readback and to continue deliberations.
Approximately a half hour later, the foreperson sent out a note asking two questions, one of which was, "How [l]ong had [Elizabeth] C. been in recovery before being enrolled in [SDCC] [?]" The note indicated that Juror No. 2 had asked the question. The court responded that it could not provide an answer to the questions and that the law did not permit adding to the evidence during deliberations.
That afternoon, the court received a note, signed by the foreperson, that stated:
"When we were being selected as potential jurors we were told that we couldn't hold our biases against someone's past against them.
"We have a juror that is discounting a witness's [Elizabeth C.'s] testimony because she was a drug addict. Is this acceptable or would this be considered a bias?"
Later that afternoon, after discussing the note with counsel, the court directed the bailiff to deliver the following response to the jury:
"Biases of any kind must not replace individualized decision making based on the evidence. Thus, two possible scenarios present themselves:
"1. A juror takes the position to the effect of 'I don't believe anything that somebody who has or who has had a drug addiction says, regardless of the rest of the evidence and regardless [of] the other credibility factors in CALCRIM No. 226.'[]
"OR
"2. A juror takes the position to the effect of 'I find that this witness's past or present drug addiction makes his or her testimony not worthy of belief[ ] because of a logical reason that makes me conclude that the addiction undermines the testimony.'
"Scenario 1 is not permissible. Any analysis that is based on that way of thinking would be impermissible bias.
"Scenario 2 is permissible. It is in accord with CALCRIM No. 226, which states two rules: (1) That the jurors must set aside 'any bias or prejudice that you may have,' and (2) that 'in evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.'
"One possible test for which scenario is involved is for each juror to articulate why, in that juror's mind, drug addiction—if you find that
to be present—helps 'prove or disprove the truth or accuracy' of the witness's testimony.'
"If there is a logical reason why the truth or accuracy of the witness's testimony is undermined by the addiction—if you find that to be a fact—then it is permissible to consider it in evaluating the testimony.
"The ultimate point is that there must be a logical reason why the addiction undermines the truth or accuracy of the testimony. If there is a logical reason, then the addiction may be considered as affecting the credibility of the testimony. If there is no such logical reason, then it would be impermissible—i.e., not allowed—to use it as a factor to disregard or undermine the testimony.
"Thank you for your continued efforts. Please let me know if you have additional questions."
CALCRIM No. 226 is a standard jury instruction that lists various factors that a jury may consider in evaluating a witness's testimony.
Shortly after receiving the court's response, the jury sent the court several notes.
Juror No. 12 authored a note that stated, "After hearing the Judge's instruction on biases, I believe that Juror [No.] 2 has a bias against anyone that has a drug-using past [and] has not provided a valid argument for not believing testimony." The note also stated, "I agree with Juror [No.] 12," signed Juror No. 9.
Juror No. 2 authored a note that stated:
"I have listened to [Elizabeth C.'s] testimony in full and I find it hard to believe everything she says in full because of the emotional she was in recovery. Falling for an older man who did not return the feeling. Having shuned[] her her feelings that had built were crushed. With her head not being clear and the underlying drug addiction have something to do with her action towards Mr. Berry."
The handwritten word on the jury note in the record is not entirely legible. It appears that Juror No. 2 intended to write the word "shunned."
The text of the note is reproduced as written, with errors that appear in the original.
Juror No. 5 authored a note that states in relevant part:
"After reading - the court's response . . . I personally believe that [J]uror [No.] 2 falls under Scenario # 1 and is considered impermissible. I have not seen or heard a 'logical reason' why he believes this strongly in only the fact he feels this person is a drug addict, has been and will be. His opinion is that he does not 'trust' any drug addicts[.] Period."
This note also contains uncorrected grammatical errors.
b. The trial court's questioning of the jurors
The following morning, the court indicated that it would question the jurors individually concerning whether Juror No. 2 harbored an impermissible bias. During individual questioning, each juror, aside from Juror No. 2, indicated that Juror No. 2 had made statements during deliberations indicating that he was unwilling to believe a person who had recently had a substance abuse problem. For example, the court heard the following from the jurors:
Juror No. 9 stated, "[Juror No. 2] said, I can't trust anybody that has ever used drugs or is a drug abuser, because of his personal beliefs."
Juror No. 12 said, "[W]hat [Juror No. 2] said was, I've known a lot of addicts in my life. And I know that they can't be trusted."
Juror No. 5 stated that Juror No. 2 had stated, "I'm not going to believe anything this girl [Elizabeth C.] says because of the fact she is a drug addict or recovering drug addict. And he repetitively said that throughout the sessions."
Juror No. 6 stated, "[Juror No. 2] was very clear when he said that because of a certain witness being an addict or past addict," that "he cannot believe the testimony."
The court clarified that Juror No. 6 was referring to Elizabeth C.
Several jurors stated that Juror No. 2 had not offered any logical reason for why Elizabeth C.'s prior abuse of drugs made her testimony unworthy of belief. For example, the court asked Juror No. 6 whether Juror No. 2 had offered a logical reason for why "addiction would cause him to . . . categorically not believe a witness." Juror No. 6 responded:
Juror No. 10 informed the court that Juror No. 2 had also stated during deliberations that Juror No. 2 disbelieved Elizabeth C.'s testimony because there was a possibility that she was "being revengeful," after Berry had refused her romantic advances.
"No, your Honor. There was absolutely no logic behind his statements. There was no logic that was offered up as to why he felt that way. He just . . . based it off of Elizabeth C. being an addict and that once he found out that she was an addict or a former addict, that was it."
In addition, two jurors stated that Juror No. 2 had stated that, if he had understood during voir dire that the case involved "drug addiction," he would have informed the court that he could not serve as a juror on the case. For example, while the court was questioning Juror No. 11, the following colloquy occurred:
"The Court: Do you have a memory of any of the jurors saying, gee, why didn't you mention this during the jury selection process and raise your hand?
"Juror [No.] 11: Yes.
"The Court: What is your memory about that?
"Juror [No.] 11: I was one of the persons who said it, and Juror [No.] 12 was one of the people that said it. And the question was, you know, there was a mention -- he said, I never heard that. And if I had heard that, I wouldn't be in this room."
During the court's questioning of Juror No. 2, Juror No. 2 stated that during deliberations, "I just happened to state how I feel about drug users." In addition, while discussing deliberations, Juror No. 2 stated the following regarding his beliefs concerning individuals with a substance abuse history:
"And I am saying, well, in my experience -- that was the first question I think we sent to you asking how long had [Elizabeth C.] been in recovery. Three months, very sketchy. Six months, very iffy. Up to about a year, then I can start really taking what they have to say, because up to that point, like a liar, can't be trusted for certain things. An addict can't be trusted for certain things."
During the court's questioning of Juror No. 2, the following colloquy occurred concerning voir dire:
"The Court: . . . [¶] One of the jurors said that it was discussed during voir dire -- I'm sorry. One of the jurors said that it was discussed in the deliberations that if you have that kind of feeling, why didn't you say it during the jury selection process when you were asked -- when the group was asked to raise a hand if there were biases they couldn't set aside. [¶] Did some discussion like that take place in the jury room?
"Juror [No.] 2: No. [¶] It was a statement by me. I said, if that was a direct question, I would have raised my hand."
c. Argument
After the court's questioning of the jurors, the prosecutor stated, "I believe we have heard from almost every juror that . . . Juror [No.] 2 indicates he just doesn't trust drug addicts, which is his opinion, but inappropriate for this trial." The prosecutor also stated that Juror No. 2 himself had recognized that he "would not want to be on this jury because of his preconceived bias and impermissible bias against those with addiction." The prosecutor requested that the court discharge Juror No. 2.
Defense counsel stated that both Juror No. 2's note to the court and Juror No. 10's statements outlined "more of a coherent and logical thought process than just she is an addict, she is an addict, she is an addict." Defense counsel also argued, "If the court feels that Juror [No.] 2 has this impermissible bias as to drug addicts, I could understand the court's position as to taking action and possibly removing him as a juror." However, defense counsel continued by stating that there were "statements from jurors that might indicate that he had some sort of logical reasoning other than the fact that she is a recovering drug addict . . . ."
Defense counsel also argued that, to the extent the court was going to remove Juror No. 2, the court should declare a mistrial. In support of this claim, defense counsel argued that Juror No. 2's failure to disclose his beliefs about drug addiction during voir dire had impacted the selection of the jury. Defense counsel also stated that he had a "strong concern" that some jurors may have adopted an impermissible "protective stance as to Elizabeth C." in light of the "constant comments about [Juror No. 2's] feelings [concerning] drug addiction."
d. The trial court's discharge of Juror No. 2 and the court's denial of Berry's motion for a mistrial
At the conclusion of the hearing, the court stated that it found that all of the jurors, except for Juror No. 2, were "substantially credible." The court then stated:
"I find that Juror No. 2's impartiality has, in fact, been fatally compromised by his views regarding addiction. Those views I think prevent him from assessing the credibility of Elizabeth [C.] in a fashion and to the extent that due process and the right to a jury determination of guilt require."
The court also stated:
"I do think that Juror [No. 2] has a strong and deep impression that closed his mind to the possibility that she was being truthful and accurate in her testimony."
The court also noted that Juror No. 10 had suggested that Juror No. 2 had indicated that his disbelief of Elizabeth C.'s testimony stemmed from a "woman scorned" rationale. While acknowledging that this was a legitimate rationale for a juror to consider in weighing a witness's testimony, the court found that Juror No. 2 had not been truthful in suggesting that this was the reason that he did not believe Elizabeth C.'s testimony. In this regard, the court stated:
"I find, based on not only Juror [No.] 2's statements, but particularly the testimony of the other jurors, that that's really not the reason. His reason is she is an addict and I don't believe her. I won't quote all the various remarks from the other jurors. But the repetitive theme is an addict is an addict is an addict, and that ends the story.
"That I think means that he is deciding the case based on that status of that person rather than on a reason that logically and reasonably tends to prove or disprove the truthfulness of her testimony."
The court also indicated that it had considered whether "Juror [No.] 2 should be removed based on willful concealment of information during the voir dire process." The court stated, "[B]oth counsel I think asked some questions [during voir dire] that . . . arguably cover[ed]" the issue of whether any juror had a bias against those with a substance abuse history. However, the court found, "I think that [Juror No. 2] either didn't hear [the questions] or he believed if he did hear it that the question[s] [were not] asking for him to volunteer his belief about drug addicts." Thus, the court found that Juror No. 2 had not willfully concealed his bias against those with substance abuse problems.
However, the court noted that at least two jurors, as well as Juror No. 2, himself, had stated that Juror No. 2 had indicated that he would not have served on the jury if he had known that the case involved an alleged victim with a substance abuse history. The court stated, "I believe that that is, as I say, telling, because it goes to show that even Juror [No.] 2 recognizes the effect of this strongly held belief on his ability to be impartial."
Ultimately, the court removed Juror No. 2, and denied Berry's motion for a mistrial. The court ruled:
"I find to a demonstrable reality that the disqualifying compromised partiality is present. I am going to do the following. I am going to, based on that finding, remove Juror [No.] 2 from further deliberations in this case. I deny [defense counsel's] motion for a mistrial.
"I intend, however, and I will invite the input of counsel, when we reconvene the jurors to begin deliberations that perhaps I should address [defense counsel's] concern that there will be an overcompensation on the addiction issue by way of some form of instruction."
e. The trial court's denial of defense counsel's renewed motion for a mistrial
The following day, defense counsel stated that he wanted to "perfect the record," by stating an additional reason for his motion for a mistrial. Defense counsel stated that, while being questioned the previous day by the court, Juror No. 2 indicated that when deliberations began, two jurors stated, "[Berry's] an admitted liar. He's a liar. We can't trust anything he says." Defense counsel add that it appeared to Juror No. 2 that those jurors had "prejudged the case."
The court stated that it did not find Juror No. 2's testimony "in that regard to be particularly credible," adding that it "doubt[ed] the veracity of the detail and the specificity." The court stated that its previous ruling denying the defense's motion for a mistrial would stand.
2. Governing law and applicable standards of review
a. The law governing the discharge of a juror
"A trial court may discharge a juror at any time during trial if the court finds that the juror is 'unable to perform his or her duty.' (§ 1089.)" (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong).) "It is beyond dispute that a juror who cannot follow the court's instructions because of a personal bias should be discharged under section 1089." (People v. Fuiava (2012) 53 Cal.4th 622, 713.)
Section 1089 provides in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
In Nesler, supra, 16 Cal.4th at p. 581 (lead opn.), the Supreme Court discussed the meaning of "actual bias" with respect to a prospective or sitting juror and the methods by which the existence of such bias may be determined:
"Either party may challenge an individual juror for 'an actual bias.' [Citation] " 'Actual bias' in this context is defined as 'the existence
of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.' [Citations.] A sitting juror's actual bias that would have supported a challenge for cause also renders the juror unable to perform his or her duties and thus subject to discharge. [Citation.] 'Grounds for . . . discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.' "
The Armstrong court described the standard of review to be applied in reviewing the discharge of a juror as follows:
"Although this court reviews for abuse of discretion a court's ruling discharging a juror pursuant to section 1089 [citation], we have made clear that such review involves a 'heightened standard [that] more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.' [Citations.] Specifically, the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' [Citations.]
"Under the demonstrable reality standard, a reviewing court's task is more 'than simply determining whether any substantial evidence in the record supports the trial court's decision.' [Citation.] 'A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (Armstrong, supra, 1 Cal.5th at pp. 450-451.)
In People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell), the Supreme Court applied this standard of review in determining that a trial court had not erred in removing a juror (R.D.) in light of R.D.'s bias against police officers. (Id. at p. 1053.) When questioned by the court, R.D. "claimed he was not biased against all law enforcement officers, but simply disbelieved the officers in [the] case." (Id. at p. 1049.) However, nine of the 11 other jurors stated that "R.D. had expressed or exhibited a general bias against law enforcement officers." (Ibid.) The Barnwell court noted that "[t]he evidence bearing on the question whether a juror has exhibited a disqualifying bias during deliberations may be in conflict," and that "[o]ften, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it." (Id. at p. 1053.) In concluding that the trial court had not erred in removing R.D. as a juror, the Barnwell court reasoned:
"Here, the trial court stated its reason for removing Juror R.D.: 'disbelief of police officers' testimony.' The court did not expressly state that it did not believe R.D.'s disclaimer of a general bias preventing him from fairly weighing the testimony of the officers in this case. However, the clear thrust of the court's ruling is that it did find the testimony of the nine jurors who stated that R.D. expressed or exhibited such a bias to be credible, and based its decision on that finding. Based on this record we are satisfied that R.D.'s disqualifying bias was established to a 'demonstrable reality.' The totality of the evidence here supports the trial court's evident conclusion that, more than simply disbelieving the testimony as given by these particular witnesses, R.D. judged their testimony by a different standard because the witnesses were police officers. Applying such different standards to the evaluation of different witnesses is, of course, contrary to the court's instructions and violative of the juror's oath of impartiality." (Ibid.)
b. The law governing the granting of a mistrial
In People v. Harris (2013) 57 Cal.4th 804, 848, the Supreme Court outlined the circumstances under which a trial court should grant a mistrial:
" ' " 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. . . .' [Citation.] A motion for a mistrial should be granted when ' " 'a [defendant's] chances of receiving a fair trial have been irreparably damaged.' " ' " [Citation.] ". . . [M]ost cases involve prosecutorial or juror misconduct as the basis for the motion . . . ." ' " (Id. at p. 848.)
An appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 210.)
3. Application
With respect to the trial court's removal of Juror No. 2, the record demonstrates that the trial court relied on substantial evidence that supported its conclusion that good cause existed for the removal. To begin with, the record is clear as to the basis for the court's removal of Juror No. 2. The trial court stated that it was removing Juror No. 2 because the juror harbored an impermissible bias against those with a substance abuse history, and that this bias prevented him from weighing the evidence in the case impartially.
There is ample evidence to support the trial court's conclusions. The evidence on which the court relied includes the statements of all of the jurors, save for Juror No. 2, indicating that Juror No. 2 had stated during deliberations that he would not believe any person who had a history of substance abuse. (See pt. III.A.1.b., ante.) The court's conclusions are also supported by Juror No. 2's own statement to the court that suggested that he would have informed the court during voir dire that he could not serve on the jury due to his views about addiction if he had known that the case involved a witness with a substance abuse history. (Ibid.)
While Berry argues that there is evidence in the record that Juror No. 2 made other statements that indicated that he had reasons other than Elizabeth C.'s substance abuse history for disbelieving her, the trial court specifically found that Juror No. 2 was not credible in this respect. We must defer to the trial court's assessment of credibility in this context. (Barnwell, supra, 41 Cal.4th at p. 1053.) In addition, the fact that there is conflicting evidence on the question of whether a juror has "exhibited a disqualifying bias," does not demonstrate that the trial court erred in removing the juror. (Ibid.)
In Barnwell, the Supreme Court affirmed the trial court's removal of Juror R.D. because "[t]he totality of the evidence here supports the trial court's evident conclusion that, more than simply disbelieving the testimony as given by these particular witnesses, R.D. [impermissibly] judged their testimony by a different standard because the witnesses were police officers." (Barnwell, supra, 41 Cal.4th at p. 1053.) In this case, overwhelming evidence supports the trial court's clear conclusion that Juror No. 2 impermissibly judged Elizabeth C.'s testimony by a different standard because of her status as a person with a substance abuse history. Thus, we conclude that the trial court did not err in removing Juror No. 2 as a juror.
We further conclude that the trial court did not abuse its discretion in denying Berry's motion for a mistrial. Berry offers two arguments in support of his claim of error. Neither is persuasive. First, we reject Berry's contention that "the court should have granted a mistrial based on Juror [No.] 2's failure to disclose [his] bias during voir dire." We assume strictly for the purpose of argument that Berry is correct that a mistrial may be warranted where " '[a] juror . . . conceals relevant facts or gives false answers during voir dire,' " and thereby " 'undermines the jury selection process.' " (Quoting People v. Wilson (2008) 44 Cal.4th 758, 822-823.) However, in this case, the trial court specifically found that Berry had not willfully concealed any "information during the voir dire process," and the record does not contain a reporters' transcript of the voir dire. We reject Berry's contention that the fact that "it [was] undisputed that the jury panel was questioned about pre-existing biases during voir dire," constitutes a sufficient showing that the trial court erred in denying Berry's motion for a mistrial. Without a reporter's transcript detailing the questions asked of Berry, and his responses, we have no manner of determining whether Berry gave " 'false answers' " (id. at p. 823), and if so, whether those answers " 'undermine[d] the jury selection process.' " (Ibid.)
We also note that no reporters' transcript of the voir dire was made available to the trial court.
Second, Berry claims that it is "entirely possible," given the "acrimonious nature of the deliberations," that other jurors took a " 'protective' or [']overly sympathetic stance,' " in evaluating Elizabeth C.'s testimony. Berry's contention in this regard amounts to speculation and does not demonstrate that the trial court abused its discretion in denying his motion for a mistrial. B. The trial court did not abuse its discretion in denying Berry's petition to unseal juror identifying information
Berry's brief quotes defense counsel's argument in the trial court.
Berry claims that the trial court erred in denying his petition to unseal juror identifying information. We review the trial court's denial of Berry's petition to unseal juror information for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
1. The law governing a defendant's petition for juror identifying information
Code of Civil Procedure section 206 provides in relevant part:
"(g) Pursuant to [Code of Civil Procedure] Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237."
Code of Civil procedure section 237 provides in relevant part:
"[(a)](2) 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.
"[¶] . . . [¶]
"(b) Any 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. The 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."
In order to establish a prima facie showing of good cause in this context, a defendant must provide, at a minimum, a " 'sufficient showing to support a reasonable belief that jury misconduct occurred, . . . and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial. . . .' " (People v. Carrasco (2008) 163 Cal.App.4th 978, 990, citation omitted.)
If the court sets the matter for a hearing on whether to release the identifying information, section 237, subdivisions (c) and (d) outline the procedure for the hearing and specify the basis on which the court is to make a final determination on the petition. The statute provides in relevant part:
"(c) If a hearing is set pursuant to subdivision (b), the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action. The court shall provide notice to each affected former juror by personal service or by first-class mail, addressed to the last known address of the former juror as shown in the records of the court. . . . Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. A former juror who wishes to appear at the hearing to oppose the unsealing of the personal juror identifying information may request the court to close the hearing in order to protect the former juror's anonymity.
"(d) After the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror 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. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose. The court may require the person to whom disclosure is made, or his or her agent or employee, to agree not to divulge jurors' identities or identifying information to others; the court may otherwise limit disclosure in any manner it deems appropriate."
2. Factual and procedural background
A little more than two months after the jury rendered its verdicts, Berry filed a petition for access to juror identifying information. Attorney Daniel Greene lodged a declaration in support of the petition. Attorney Greene stated in his declaration that it was "essential for the defense to gain access to the identifying information of the jurors in order to interview them to learn the actual extent that Juror No. 2 was biased during deliberations, as well as the extent to which Juror No. 2's bias worked to boost the credibility of Elizabeth C. in the eyes of the remaining jurors." Attorney Greene also stated that the speed with which the newly constituted jury reached its verdicts after the court removed Juror No. 2 supported the need to interview jurors in order to determine whether "deliberations [had] beg[un] anew once the alternat[e] was brought in to replace the dismissed juror[.]"
Attorney Greene explained in his declaration that he had not yet been named Berry's attorney of record, but that he had been retained for the purposes of representing Berry in connection with postverdict proceedings. The trial court granted Berry's motion to allow Attorney Greene to appear as co-counsel in the matter prior to the hearing on Berry's petition to unseal juror information.
In addition to Attorney Greene's declaration, Berry lodged with his petition the reporters' transcript of the hearing at which the court removed Juror No. 2, relevant minute orders, and the jury's verdicts. In an accompanying brief, Berry argued that the court should grant the petition in order to permit defense counsel to gain information relevant to the preparation of a potential motion for new trial related to the trial court's removal of Juror No. 2.
The People filed an opposition to the petition. The People argued that Juror No. 2's impermissible bias had already been established, thereby suggesting that no further inquiry into this matter was necessary. The People further argued that "the defense's allegations of jury misconduct when deliberations began anew are based purely on speculation." Specifically, the People contended that the rapidity by which the newly constituted jury rendered its verdicts as compared to the length of time that the jury with Juror No. 2 had deliberated was irrelevant "because the brevity of jury deliberations does not prove a failure to begin jury deliberations anew or a bias in deliberations."
After holding a hearing, the trial court denied the petition. The court ruled that there was no prima facie showing of a need for additional information related to the court's removal of Juror No. 2. The court also stated that it found no prima facie showing related to the potential "bolstering effect" of Juror No. 2's bias. The court stated that the defense's argument with respect to this issue was premised on "speculation," and that the relative speed with which the newly constituted jury reached verdicts did not establish the requisite prima facie showing.
The court stated at the outset that it was holding the hearing for the purposes of determining whether Berry had made a prima facie showing of good cause to release the juror identifying information.
The trial court here was referring to Attorney Greene's statement in his declaration that the petition should be granted in order to permit the court to determine the "extent to which Juror No. 2's bias worked to boost the credibility of Elizabeth C. in the eyes of the remaining jurors."
3. Application
On appeal, Berry contends that the trial court abused its discretion in determining that the defense had not made a prima facie showing of good cause for release of juror information based on the possibility that some of the jurors may have become " 'protective' " or unduly sympathetic to Elizabeth C. in the wake of Juror No. 2's refusal to believe her. As we stated in our discussion of Berry's similar claim with respect to the trial court's denial of his motion for a mistrial, Berry's supposition with respect to how Juror No. 2's bias affected the other jurors' evaluation of Elizabeth C.'s testimony amounts to speculation. Speculation does not constitute a prima facie showing of good cause sufficient to warrant the release of juror identifying information. (See People v. Cook (2015) 236 Cal.App.4th 341, 346 ["Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported"].)
Berry's contention that a prima facie showing of jury misconduct was established by evidence that the "newly constituted jury reached verdicts on ten of thirteen counts within a few hours—and more than likely within one hour—of commencing deliberations with the alternate juror," is not persuasive. Berry's argument that the newly constituted jury reached ten of its verdicts within an hour of being constituted is also based on speculation. In any event, the Supreme Court has expressly rejected the argument that "the length of deliberations is evidence the jury did not follow [an] instruction to begin deliberations anew." (People v. Williams (2015) 61 Cal.4th 1244, 1280.) The Williams court explained:
Berry notes that the jury began deliberating with the alternate juror at 9:25 a.m. on June 30 and that the jury signed guilty verdict forms on ten of the counts (Counts 1-6, 9-11, and 13) on that same day. Berry states that it is a "reasonable inference" that the jury reached the verdicts on these counts no later than 10:32 a.m. on June 30 because the jury asked a question at 10:32 a.m. concerning two other counts (counts 7, 8), and the jury's verdicts on counts 7 and 8 and were signed on July 5. We disagree that it may be reasonably inferred that the jury had reached its verdicts on counts 1 through 6, 9 through 11, and count 13 by 10:32 a.m. on June 30 merely because it asked a question related to counts 7 and 8 at that time.
" '[T]he brevity of the deliberations proves nothing. [Citations.] The newly constituted jury was not required to deliberate for the same length of time as the original jury, nor was it required to review the same evidence. When, as here, there are no indications to the contrary, we assume that the jurors followed the trial court's instructions and started afresh.' " (Ibid.)
The rationale of Williams applies here. Berry identifies nothing in the record that suggests that the new jury did not follow the trial court's instructions to begin deliberations anew upon the court's replacing Juror No. 2 with the alternate juror. Indeed, there are indications that the newly constituted jury carefully considered the evidence, in that it asked a question with respect to certain counts, requested a readback of Elizabeth C.'s testimony, and returned not guilty verdicts on two of the counts.
The court instructed the jury to begin deliberations after substituting the alternate for Juror No. 2. --------
Finally, Berry contends that evidence that two jurors had "pre-judged" the case by stating at the beginning of deliberations that the defendant was a liar constituted a prima facie showing of juror misconduct. Even assuming that such statements were made and that this argument was presented in the trial court in support of the petition to unseal juror information, it is not misconduct for a juror to state his or her view of the evidence at the outset of deliberations. Thus, we reject Berry's argument that these jurors' purported statements assessing his credibility at the outset of deliberations constituted misconduct.
Accordingly, we conclude that the trial court did not abuse its discretion in denying Berry's petition to unseal juror identifying information. C. The trial court did not abuse its discretion in denying Berry's motion for a new trial
Berry claims that the court abused its discretion in denying his motion for new trial. In support of this claim, Berry refers to the arguments that we have rejected above. Accordingly, we conclude that Berry has not established that the trial court abused its discretion in denying his motion for a new trial.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.