Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No.07CM3407. Peter M. Schultz, Judge.
Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant appeals his conviction after a jury trial. He contends the court improperly denied his petition for disclosure of the jurors’ personal identifying information, in which he sought the information in order to prepare a motion for new trial based on alleged juror misconduct. Additionally, on the charge of receiving stolen property, defendant challenges the admission of evidence of credit and debit cards and other items found on defendant’s person during a pre-booking search. The items bore the name of a woman who was not the alleged victim and did not testify at trial; no evidence that the items were stolen was presented at trial. Finally, defendant challenges the imposition of a “release after booking” fee, on the ground he was not released, but remained in custody after arrest. We modify the judgment to strike the challenged fee, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with (1) receiving, concealing, selling or withholding stolen identification, credit, and debit cards belonging to Margarita Rodriguez (Pen. Code, § 496, subd. (a)), with one prior serious or violent felony conviction (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subd. (a) - (d)), and three prior prison terms (Pen. Code, § 667.5, subd. (b)); (2) driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); and (3) driving while his license was suspended (Veh. Code, § 14601.1, subd. (a)). During trial, defendant pled guilty to count 3; the jury found him guilty of counts 1 and 2. The court subsequently found the prior conviction and prison term allegations true. On count 1, the court sentenced defendant to the upper term of six years, with an additional three years for the enhancements. On each of the misdemeanor counts (counts 2 & 3), the court imposed a six-month concurrent sentence.
After the trial, defendant petitioned for disclosure of the jurors’ addresses and telephone numbers, so that he could prepare a motion for new trial based on juror misconduct. In support of the petition, defense counsel submitted his declaration, in which he asserted that, 10 minutes before the jury’s verdict was announced, defendant told his attorney he recognized Juror No. 11 as defendant’s former direct supervisor when he worked as a cook at Avenal State Prison. Defense counsel asserted Juror No. 11 failed to disclose during voir dire that she knew defendant. The court denied the petition, finding it was untimely and not supported by competent evidence.
The evidence presented at trial indicated that, on October 25, 2007, California Highway Patrol officers stopped the vehicle defendant was driving after they observed it speeding and weaving. There was one passenger in the vehicle, Janelle Thomas. Officer Fred Fonseca noticed defendant’s eyes were bloodshot, his speech was slurred, and there was an odor of alcoholic beverage in the car. After administering field sobriety tests, he arrested defendant. During a pre-booking search of defendant, Officer Fonseca discovered in defendant’s pockets and wallet a driver’s license and a number of credit, debit, and identification cards bearing the names of Margarita Rodriguez and Mary Ida Smith. Defendant said Rodriguez was his cousin, but did not explain why he had her cards.
The officers did not speak with Smith. Rodriguez testified at trial. On October 19, 2007, Rodriguez had gone to work and parked her pickup in the parking area; she could not remember if she locked it. When she returned after work, she noticed that her purse was missing. Her credit, debit, and identification cards were in the purse. She called to cancel the credit and debit cards; she believed if she cancelled the debit card, it would cancel all the cards, but some of them were used. She identified the cards with her name on them, found in the search of defendant, as hers. She denied knowing defendant or giving him permission to have her credit cards; she denied he was her cousin. She did not report the missing purse to the police before an officer came to her house on November 6, 2007, and told her that her property had been recovered.
Her items consisted of two credit cards, a debit card, and a Mexican Consulate identification card.
Defendant contends the items bearing Smith’s name were improperly admitted because they were irrelevant to any issue in the case; they did not bear on defendant’s intent or knowledge that Rodriguez’s items were stolen, because there was no evidence Smith’s items were stolen. Alternatively, he argues that, if Smith’s items had some relevance, any probative value was outweighed by the potential prejudicial effect of the evidence. Regarding defendant’s request for disclosure of juror information, defendant contends he made the required prima facie showing of good cause, and the denial of his petition violated his right to a fair trial and his right to due process. Finally, defendant contends he was improperly ordered to pay a “release after booking” fee, when he was not released after his arrest.
DISCUSSION
I. Admission of Smith’s Identification and Credit Cards
A. Standard of review
“[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 724 (Waidla).)
B. Relevance
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court is vested with wide discretion in determining whether offered evidence is relevant. (People v. Cain (1995) 10 Cal.4th 1, 32.) The general test of relevance is “‘whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.’ [Citation.]” (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Defendant contends the evidence that credit cards and other items with Smith’s name on them were found in defendant’s possession was irrelevant and should have been excluded. In count 1 of the information, defendant was charged with a violation of Penal Code section 496, subdivision (a). That statute proscribes receiving, concealing, selling or withholding stolen property from the owner, knowing the property to be stolen. Defendant asserts there was no evidence Smith’s items were stolen, so no inference could be drawn from them that Rodriguez’s items were also stolen, or that defendant knew Rodriguez’s items were stolen.
The items consisted of three credit and/or check cards, a driver’s license, a bank identification card, and some blank checks.
The People contend Smith’s items were properly admitted under Evidence Code section 1101, subdivision (b). That section permits “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, …) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) The People assert evidence that Smith’s items, as well as Rodriguez’s, were found in defendant’s pockets was admissible to establish defendant’s intent or knowledge that Rodriguez’s property was stolen; even without direct evidence that Smith’s items were stolen, the People contend, a reasonable inference could be drawn from defendant’s unexplained possession of cards and blank checks bearing the names of others that the items were stolen from their rightful owners. Alternatively, the People argue Smith’s items were relevant to showing “a nefarious intent” in possessing both Smith’s and Rodriguez’s items.
One of the elements of the offense of receiving stolen property is defendant’s knowledge that the property was stolen. “Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence.… ‘Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]’ [Citation.]” (People v. Vann (1974) 12 Cal.3d 220, 224.)
In People v. Martin (1973) 9 Cal.3d 687 (Martin), a police officer observed Martin, who was known to the police as a receiver of stolen property, driving a station wagon heavily laden with objects. Martin parked the car in an apartment building’s underground garage and left in another vehicle. The officer observed business machines in the station wagon. Martin returned in a vehicle driven by Prizant; Martin removed a machine from the station wagon and put it in the back seat of Prizant’s vehicle. Both men were arrested and charged with receiving stolen property.
The court concluded there was sufficient evidence to support Prizant’s conviction of receiving stolen property based on the machine placed in the back seat of his car. There was no dispute the machine was stolen; it was in Prizant’s possession, having been placed in his vehicle in his presence. (Martin, supra, 12 Cal.3d at p. 695.) Regarding his knowledge the machine was stolen, the court stated:
“The requisite knowledge that the machine was stolen may be established by the circumstances surrounding its receipt. [Citations.] Possession of a stolen item in and of itself is a factor which could assist a reasonable person in formulating a strong suspicion that the recipient knew the item was stolen. In addition to the possession of the machine there were here attendant the unusual circumstances surrounding its transfer and the presence of a number of other similar machines of which Prizant was aware. These factors amply support the trial court’s finding that Prizant had the requisite knowledge that the machine in the rear of his vehicle was stolen.” (Martin, supra, 12 Cal.3d at pp. 695-696.)
“‘[Possession] of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen.’ ‘False or evasive answers to material questions with reference to the ownership of stolen property tend to prove such knowledge. [Citations.]’” (People v. Lyons (1958) 50 Cal.2d 245, 258.)
Relevant evidence is evidence that has “any tendency in reason to prove or disprove any disputed fact” in issue in the case. (Evid. Code, § 210, italics added.) Six days after Rodriguez’s purse disappeared from her vehicle, her credit and identification cards, and others bearing Smith’s name, were found on defendant’s person. When asked why he had Rodriguez’s and Smith’s cards, defendant said Rodriguez was his cousin. This implied an explanation that he possessed her cards with her consent. He gave no explanation for his possession of Smith’s cards.
Evidence that defendant possessed not only Rodriguez’s stolen cards, but also similar cards with Smith’s name on them, tended to cast doubt on defendant’s implied innocent explanation of his possession of Rodriguez’s cards. His failure to explain his possession of Smith’s cards, and the unsatisfactory explanation of his possession of Rodriguez’s cards, constituted some evidence of his knowledge that Rodriguez’s cards were stolen. The evidence was relevant and the court did not abuse its discretion by admitting evidence of defendant’s possession of Smith’s items.
C. Probative value balanced against prejudicial effect
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The abuse of discretion standard of review applies to a ruling on the admissibility of evidence, even when admissibility turns on a determination of whether the probative value of the evidence outweighs its danger of undue prejudice to defendant. (Waidla, supra, 22 Cal.4th at p. 724.) An abuse of discretion will not be found unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)
“Prejudice for purposes of [Evidence Code] section 352 refers to evidence that tends to evoke an emotional bias against the defendant.” (People v. Crew (2003) 31 Cal.4th 822, 840.) Defendant contends evidence of Smith’s cards and other items should have been excluded as unduly prejudicial. He contends that, because there was no evidence Smith’s items were stolen, the evidence that defendant was in possession of Smith’s and Rodriguez’s items improperly suggested defendant was in possession of “a plethora of stolen property;” he asserts this may have caused the jury to convict on the basis of suspicious circumstances, without carefully considering Rodriguez’s failure to report the theft to the police and whether her cards were, in fact, stolen.
We find no abuse of discretion in the admission of the evidence. Rodriguez testified that her purse, with the credit, debit and identification cards in it, disappeared from her pickup while she was at work. She testified she did not report the theft to the police until an officer came to her house after defendant’s arrest, but she did attempt to cancel the credit and debit cards. Evidence of defendant’s possession of the cards and other items bearing the names of Rodriguez and Smith, along with his failure to explain his possession of them, was probative of defendant’s knowledge that Rodriguez’s cards were stolen. Evidence of defendant’s possession of Smith’s cards was not inflammatory, likely to evoke an emotional bias against defendant, or likely to cause the jury to inadequately weigh the evidence that Rodriguez did not report the theft of her purse to the police. The trial court did not act in an arbitrary, capricious or patently absurd manner in admitting that evidence.
II. Juror Information
Disclosure of jurors’ personal identifying information (names, addresses and telephone numbers) is governed by Code of Civil Procedure sections 206 and 237. Code of Civil Procedure section 237 provides that, after the verdict in a criminal jury trial has been recorded, the court’s record of the jurors’ personal identifying information “shall be sealed until further order of the court.” (Code Civ. Proc., § 237, subd. (a)(2).) However, a defendant may petition for disclosure of this information, if the information is “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).)
“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.… If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” (Code Civ. Proc., § 237, subd. (b).)
Denial of a motion for disclosure of juror information is reviewed under the deferential abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
The jury reached its verdict on April 4, 2008, and the court set the matter for sentencing on May 2, 2008. After continuing the sentencing date twice at defense counsel’s request, the court sentenced defendant on May 28, 2008. On that day, defendant filed a petition for disclosure of juror information. In it, defense counsel declared that, ten minutes before the verdict was announced, the jury entered the courtroom with a question, and defendant told his attorney he recognized Juror No. 11 as his former direct supervisor when he worked as a cook at Avenal State Prison; defendant had not recognized her earlier. Counsel asserted Juror No. 11 had not disclosed during voir dire that she knew defendant. The petition requested disclosure of the addresses and telephone numbers of all the jurors who rendered the verdict in this case and asserted the information was necessary in order to prepare a motion for new trial based on jury misconduct.
At the May 28, 2008, hearing, defense counsel asked that sentencing be continued again, in order to give the court time to hold a hearing on defendant’s petition. The minute order states: “Court denies motion for a continuance and finds petition untimely and not supported by competent evidence and petition denied.” On the record, the court elaborated, stating that the petition was untimely and reasonable diligence in bringing the petition had not been demonstrated; the declaration was incompetent hearsay, as to matters within defendant’s knowledge; and even if the declaration constituted competent evidence, its content was insufficient because it demonstrated defendant was aware of the alleged relationship with the juror before the verdicts were returned.
A. Timeliness
In People v. Duran (1996) 50 Cal.App.4th 103 (Duran), prospective jurors were asked during voir dire whether anyone close to them had been the victim of a violent crime. Juror M answered no, and was placed on the jury. Defendant was convicted, and on the date originally set for sentencing, his attorney informed the court that, two weeks after the verdict, he had seen Juror M watching the proceedings in an unrelated murder trial with the cousin of the victim in that case. He obtained a continuance of sentencing to explore possible grounds for a new trial motion. Defendant subsequently filed a motion for new trial, asserting that Juror M committed misconduct by failing to disclose during voir dire that she had a dating relationship with the cousin of a murder victim. At the hearing of the new trial motion, defense counsel asked the court to disclose the names and addresses of the other jurors, so he could ascertain whether Juror M had mentioned her involvement in the other murder case during deliberations in defendant’s case. The trial court denied the request for juror information and the motion for new trial, concluding among other things that the request for juror information was untimely.
The court stated: “While Code of Civil Procedure former section 206 does not contain an express time limitation, it does impose a requirement that the information be sought for a lawful purpose. As such, we must consider the request in light of any time limitations associated with the purpose for which the information is sought. For clearly, if the defendant or the defendant’s counsel is precluded from using the information for that expressed purpose due to time constraints, his or her request cannot be said to have been made for a lawful purpose.” (Duran, supra, 50 Cal.App.4th at p. 122.) An application for a new trial must be made and determined before judgment. (Pen. Code, § 1182.) Consequently, in order to grant defendant’s request for juror information for a lawful purpose, the trial court would have had to have continued both the new trial motion and sentencing. (Duran, at p. 122.) But Penal Code section 1050 requires courts to expedite criminal proceedings and permits continuances only on a showing of good cause and due diligence. Defendant had failed to make the necessary showing for a continuance. (Duran, at p. 122.) Defense counsel inexplicably waited until the second sentencing hearing, six weeks after seeing Juror M attending the other murder trial, to request disclosure of other jurors’ information. (Ibid.)
The court concluded: “Since appellant failed to show he exercised due diligence in pursuing this claim, there was no basis shown for continuing the hearing on the motion for new trial. Since appellant sought this information to support his motion for new trial, there was no longer a lawful purpose to be served by releasing this information. The trial court thus acted properly in denying the untimely request for juror information.” (Duran, supra, 50 Cal.App.4th at p. 123.)
Similarly, in this case, defendant sought disclosure of juror information in order to determine whether there was any basis for a motion for new trial grounded on juror misconduct. Defendant first requested juror information on the third date set for sentencing, almost two months after defendant recognized Juror No. 11. No explanation for the delay was given. Defense counsel admitted he had prepared the petition long before (it was dated April 26, 2008), but failed to file it until the May 28, 2008, sentencing hearing. Thus, defendant failed to show either diligence in proceeding with the request for juror information and the motion for new trial or good cause for continuing sentencing for the third time.
Further, defendant recognized Juror No. 11 before the verdict was reached, and did not raise the issue with the trial court at that time. If the matter had been brought to the court’s attention immediately, the court could have questioned Juror No. 11 to determine whether she recognized defendant or was aware she had worked with him in the prison kitchen. It could have determined whether she had mentioned that association to the other jurors. If appropriate, the court could have excused Juror No. 11 and replaced her with an alternate, resolving the problem before the verdict was announced and the jury discharged.
Under these circumstances, we find no abuse of discretion in the trial court’s determination that the petition for disclosure of juror information was untimely.
B. Good cause
A petition for disclosure of jurors’ personal identifying information must be accompanied by “a declaration that includes facts sufficient to establish good cause” for the release of that information. (Code Civ. Proc., § 237, subd. (b).) In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 (Santa Cruz), the court interpreted a similar statute, Evidence Code section 1043, which provided that a party may request disclosure of police officer personnel records by written motion, supported by “[a]ffidavits showing good cause for the discovery or disclosure sought.” (Santa Cruz, at p. 82.) The court noted that a successful motion merely triggered an in camera review of the records by the court to determine whether they should be disclosed. It concluded the motion could be supported by declarations based on information and belief, rather than solely by declarations based on personal knowledge of the declarant. The court stated: “‘“Whenever the statute, either in express terms or by implication, requires a person to make a statement which from the very nature of things can only be made on information and belief, an affidavit in that form meets the demands of the statute.”’” (Id. at p. 87.) The defendant sought the personnel records of the officers who arrested him, as evidence that they used excessive force in his arrest. The court found the defendant’s motion and supporting declaration sufficient, where the police report indicated substantial force was used in effecting the defendant’s arrest and defense counsel’s declaration, on information and belief, asserted that the officers used excessive force and set out a factual scenario supporting that assertion. (Id. at pp. 85-86.)
In support of his motion, defendant submitted the declaration of his attorney, in which the attorney asserted that defendant told him certain facts; those facts form the basis of defendant’s motion for disclosure of juror information. The attorney did not purport to have personal knowledge of those facts. No declaration by defendant, based on his personal knowledge of the facts, was offered. No explanation for the absence of such a declaration was given. This was not a case in which, “‘“from the very nature of things,”’” defendant could not reasonably have offered a declaration based on personal knowledge. (Santa Cruz, supra, 49 Cal.3d at p. 87; see also, People v. Hayes (1999) 21 Cal.4th 1211, 1256 [“Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim of juror misconduct”].) We find no abuse of discretion in the court’s denial of defendant’s motion on the additional ground that defendant failed to make a showing of good cause based on competent evidence.
C. Sufficiency of order
If the court denies a defendant’s petition for disclosure of juror information without setting it for a hearing, it must “by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” (Code Civ. Proc., § 237, subd. (b).) Defendant contends the trial court’s order was insufficient. The minute order states that the petition was “untimely and not supported by competent evidence.” This is an adequate statement of the reasons for the trial court’s order, where it did not reach the issue of the sufficiency of the facts presented to make a prima facie showing, because the petition was untimely and no admissible evidence was submitted to prove the facts asserted as the basis of the motion.
III. “Release after booking” fee
Defendant was ordered to pay a $25 fee pursuant to Penal Code section 1463.07. That section provides: “An administrative screening fee of twenty-five dollars ($25) shall be collected from each person arrested and released on his or her own recognizance upon conviction of any criminal offense related to the arrest.” (Pen. Code, § 1463.07.) Defendant was not released after his arrest. The fee was imposed in error. The People concede the error. The fee pursuant to Penal Code section 1463.07 should be stricken.
DISPOSITION
The judgment is modified by striking the $25 fee imposed pursuant to Penal Code section 1463.07. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, reflecting the modification, and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: WISEMAN, Acting P.J. KANE, J.