Opinion
NOT TO BE PUBLISHED
Appeal from a posttrial order of the Superior Court No. 08CF0698 of Orange County, W. Michael Hayes, Judge.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Sabrina Y. Lane-Erwin and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury convicted defendant Miguel Funes of three counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). It also found true he personally used a weapon in each of the three robberies. (Pen. Code, § 12022, subd. (b)(1).) Defendant was sentenced to a total of six years and eight months in prison. He appeals the trial court’s order refusing to disclose contact information for jurors, claiming he showed good cause to do so. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
The facts are not in issue. Only the theory of the defense is relevant to the extent it explains the basis for defendant’s motion to obtain contact information for jurors preliminary to bringing a motion for new trial premised on jury misconduct. Defendant did not testify, call witnesses, or submit any evidence. His defense was that victims of the robberies misidentified him.
After trial defense counsel filed a motion to disclose jurors’ contact information so he could question them about whether there had been juror misconduct during deliberations. In his declaration in support of the motion he stated the following: After trial he and the district attorney spoke to approximately nine of the jurors. The foreperson commented something like “I don’t think it was a sure thing for any of us. But we all felt by a preponderance of evidence that he was guilty.” Another juror said, “We didn’t want to convict.” She also stated that had the defendant presented “something” “the jury might have acquitted.”
Additionally, at least four of the jurors questioned why defendant had not testified. When counsel said he could not disclose the reasons, one of the jurors remarked to another something to the effect of, “See, that’s what I figured.” Counsel declared that these jurors “seemed preoccupied with the [d]efendant[]s not having testified” and the way they spoke “suggested” “they had “discussed [this] before.”
The district attorney’s declaration stated he had spoken to jurors, the number of whom and the contents of the conversations he did not recall. He did remember questions about why defendant did not testify but no other details on that issue. He also declared he would have remembered any statements about juror misconduct.
At the hearing on the motion, the court commented that it did not “think jurors come in here wanting to convict anybody” and eliminated that as a basis on which to grant the motion. As to the other two reasons, the court suggested defense counsel should have asked follow-up questions when the jurors had made the statements and noted defendant was not entitled to a hearing as a matter of right. Ultimately it found the statements about preponderance of the evidence and that “it wasn’t a sure thing” were “enough to go to the next step....” “I don’t think it’s going to go anywhere, but I think [defendant’s] got a right to ask them.”
The court then sent notice to the jurors that there would be a hearing on defendant’s request to obtain their contact information for the purpose of investigating the possibility of juror misconduct during their deliberations. It noted that at the hearing they could discuss informally with defense counsel and the district attorney “aspects of jury deliberations.” It advised that the jurors had the right to block disclosure of their information by appearing or by notifying the clerk, and if they did so, their information would be kept private. It also stated that if they did not object to disclosure their information might be disclosed to defense counsel.
At the subsequent hearing one juror appeared; she was willing to speak to the lawyers that day but had sent an objection to release of her personal information. In discussion with counsel before they spoke with the juror the court stated “[t]here’s one issue that I care about, ” but it did not limit what the lawyers could discuss with her. Although not specified at that point, based on comments at the prior hearing and later in this hearing, the court was referring to the question of whether jurors had determined guilt based on a preponderance of the evidence. After speaking with the juror, both counsel revealed she did not say anything to support defendant’s belief there had been juror misconduct. The parties apparently thought at the time that approximately nine jurors had notified the court they did not want their contact information made known. The record reflects five jurors, including the one who appeared, objected to disclosure.
The judge stated he had given a lot of thought to the motion. Notice to the jurors was “unusual” but had wanted to give defendant every opportunity to develop his theory. He was now having second thoughts about it. The juror who had appeared provided no indication the jurors had used a preponderance of the evidence standard. The court found defendant had not met the “threshold issue” of good cause and denied the motion to disclose juror information.
DISCUSSION
Defendant contends the court erred by failing to disclose the contact information for the jurors who did not object to disclosure.
Code of Civil Procedure section 206, subdivision (g) provides that, after a verdict, pursuant to Code of Civil Procedure section 237 a defendant or his lawyer may file a petition to obtain contact information for jurors “for the purpose of developing a motion for new trial....” Under Code of Civil Procedure section 237, subdivision (b) the petition must be accompanied by “a declaration that includes facts sufficient to establish good cause” for disclosure of the information. If a prima facie showing of good cause is made and there is no “compelling interest against disclosure, ” the court will set a hearing. (Ibid.) The language of the statute “indicate[s] a legislative intent to require the defendant show good cause for disclosure and not engage in merely a fishing expedition.” (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) To satisfy that requirement there must be a sufficient showing “to support a reasonable belief that jury misconduct occurred” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552). The misconduct must be “of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a); see People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) A defendant has not met his burden if the allegations of misconduct are vague, conclusory, speculative, or unsupported. (People v. Wilson, supra, 43 Cal.App.4th at p. 852.)
Although the court here set a hearing, in its ruling at that hearing it determined there was no good cause to disclose the contact information. Reviewing this under a deferential abuse of discretion standard (People v. Carrasco (2008) 163 Cal.App.4th 978, 991), we agree.
There were three bases for defendant’s claim of possible jury misconduct. First, one juror stated the jury “didn’t want to convict.” But, as the trial court ruled, it is unlikely jurors start a trial with the desire to convict anyone. And defendant’s opening brief does not argue this finding was error, so any claim he may have raised on this ground is forfeited.
The second statement on which defendant relied was that jurors “felt by a preponderance of evidence that he was guilty.” This is the only issue the court found had any potential to support release of the juror information. Again, defendant does not make any argument as to the sufficiency of this statement in his brief, thereby forfeiting it. Further, the statement is, at most, evidence of the subjective reasoning processes of the juror who made it. This does not support good cause.
“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a).) “‘The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict... are those open to sight, hearing, and the other senses and thus subject to corroboration.’ [Citations.]” (People v. Steele (2002) 27 Cal.4th 1230, 1261.) “‘This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent.’ [Citations.]” (People v. Cox (1991 53 Cal.3d 618, 694, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Finally, we come to the questions about why defendant did not testify, the only ones defendant argues on appeal. These statements, too, were not sufficient to make a prima facie case. At most, they were evidence of the jurors’ mental processes, which are inadmissible under Evidence Code section 1150, subdivision (a).
Further, there is no evidence the jurors discussed defendant’s failure to testify or relied on it as evidence of guilt. Counsel’s declaration that the jurors “seemed preoccupied” with defendant’s lack of testimony or “suggested” the jurors had discussed it is highly speculative, as demonstrated by use of the words “seemed” and “suggested.” Even in his brief defendant argued his trial counsel “got the impression from watching the interaction between the jurors that they may have discussed defendant’s not testifying during deliberations.” (Italics added.) Such speculation will not support a finding of good cause. (People v. Wilson, supra, 43 Cal.App.4th at p. 852.)
None of the jurors ever told counsel they had discussed this. Furthermore, the jurors were instructed with CALCRIM No. 355, which provides: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” There is no evidence the jury ignored the instruction. Thus, defendant did not satisfy his burden under Code of Civil Procedure section 237, subdivision (b) to show good cause for disclosure of the jurors’ contact information.
Nevertheless, defendant argues, by virtue of setting a hearing, the court had to have found good cause. Otherwise, he asserts, the court would have had to state the reasons why it had not made such a showing. Defendant maintains that once a hearing was set and jurors notified the court erred when, after counsel commented the juror they interviewed had not said anything about using a preponderance of the evidence standard, it “changed its mind and decided there was not good cause to release the information after all.” Relying on Code of Civil Procedure section 237, subdivision (d), he contends the court had to disclose the information to the jurors who did not object to release of their information.
Code of Civil Procedure section 237, subdivision (d) provides that “[a]fter 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... or the juror is unwilling to be contacted by the petitioner.” We are not persuaded this required the court to disclose the names and addresses of the non-objecting jurors.
Although the court did find the statements regarding a preponderance of the evidence was “enough to go to the next step” it was not wholly persuaded there was good cause for release of the information. However, it gave defendant every opportunity to show misconduct. At the second hearing the judge had second thoughts about setting the hearing and giving notice to the jurors and found defendant had not shown good cause for disclosure. It would fly in the fact of the statutory requirements and public policy to disclose information when the court did not believe defendant had met his burden of proof. “The disclosure of jurors’ addresses and telephone numbers involves a sensitive issue.” (People v. Wilson, supra, 43 Cal.App.4th at p. 852.) “[A showing] of jury misconduct[ is]the predicate for obtaining the jurors’ names and addresses....” (People v. Granish (1996) 41 Cal.App.4th 1117, 1131.) “A failure to make [the] required showing justifie[s] denying the request for disclosure.” (People v. Wilson, supra, 43 Cal.App.4th at p. 850.) Obtaining the jurors’ information is not automatic or a matter of right. Thus, because we have determined defendant did not meet the preliminary issue of showing good cause for disclosure, we need not construe Code of Civil Procedure section 237 to determine whether objection by fewer than all the jurors bars disclosure of contact information for those who did not object.
Townsel v. Superior Court (1999) 20 Cal.4th 1084 does not compel a different result. Defendant points to the court’s general language that once “a juror consents to an interview, no more need be shown, as [Code of Civil Procedure] section 206, subdivision (a) provides that jurors enjoy ‘an absolute right to discuss... the deliberation or verdict with anyone.’ If a juror does consent to an interview, respondent court would abuse its discretion by requiring counsel to make a showing of need or ‘good cause’ greater than the desire to interview the juror for a lawful purpose. [Citation.]” (Id. at p. 1097.) But Townsel goes on to state that, “for verdicts returned after January 1, 1996, the requirements of [Code of Civil Procedure] section 237 [requiring good cause] would apply. [Citation.]” (Id. at p. 1098, fn. 7.)
Defendant argues the court should have disclosed information about the non-objecting jurors before it decided he had not shown good cause. But that is the exact opposite of the statutory procedure, which required defendant show good cause before contact information could be released. (Code Civ. Proc., § 237, subd. (b).)
We reject defendant’s claim reversal is required because the court failed to make specific findings as to why each of the three bases for the motion were insufficient. Those findings are necessary only when the court fails to set a hearing, not the case here. (Code Civ. Proc., § 237, subd. (b).) Further, the record clearly reveals the court did not prohibit defendant’s lawyer from discussing any issue with the juror who appeared. Finally, defendant’s claim we should reverse based on the court’s apparent misunderstanding that five jurors, not nine, objected to disclosure of their information is not well taken. There is no evidence to suggest the court based its decision on the fact that a majority of the jurors objected.
DISPOSITION
The order is affirmed.
WE CONCUR: SILLS, P.J., O’LEARY, J.