Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF3254, Carla Singer, Judge. Affirmed.
Richard Power, 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, Barry Carlton and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A jury convicted Miguel Angel Garcia of one count of oral copulation or sexual penetration with a minor who is 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), two counts of a forcible lewd act on a child under 14 years of age (id., § 288, subd. (b)(1)), and one count of sodomy with a child who is 10 years of age or younger (id., § 288.7, subd. (a)). The jury found true allegations that Garcia had substantial sexual contact with the victim in the commission of the two counts of forcible lewd act on a child (id., § 1203.066, subd. (a)(8)), and that Garcia used force, violence, duress, menace, or fear of immediate bodily injury on the victim in committing those crimes (id., § 1203.066, subd. (a)(1)). The trial court sentenced Garcia to 40 years to life in prison.
Garcia argues the trial court erred by denying his motion for access to personal juror identifying information and motion for a new trial. Both motions were based on the same events. During jury deliberations, the jury foreperson announced the jury was at an impasse because one juror was not willing to deliberate. In open court, the jury foreperson stated, “there may be an issue of competency” as to that one juror. By “competency, ” the jury foreperson meant the “inability to follow and relate facts as they are presented and connect them so that you can come to a determination of those facts.” The jury requested that certain testimony be read back, primarily to assist that juror. Several hours later, after the requested testimony had been read back, the jury returned its verdict.
Garcia sought personal juror identifying information for the juror who was the subject of the jury foreperson’s comment. The trial court did not err by denying the motion because Garcia sought the information to learn whether the jury foreperson’s comment caused the juror to assent to the verdict out of intimidation or humiliation. Under Evidence Code section 1150, subdivision (a), evidence is inadmissible to show the effect of a statement or occurrence on a juror’s decision to assent or dissent from a verdict. The trial court reasonably, and we believe correctly, concluded the juror agreed to the verdict based on the readback of the testimony. During the jury poll after the verdict, Juror No. 6 unhesitatingly confirmed that was her verdict. For the same reasons, the trial court did not err by denying Garcia’s motion for a new trial.
FACTS
Garcia lived in an apartment in Anaheim with his partner Maria S., her then seven year old son Martin C., and various other family members. On September 3, 2007, Maria S. left work early after hearing about a squabble at home involving her father, her brother in law, and Garcia. When Maria S. arrived home, she found Martin C., who had been outside playing, and he was sent to bed.
Garcia went into Martin C.’s bedroom, slapped Martin C. four times on the face, and threatened to kill him. Garcia then pushed Martin C. into a bathroom, pulled down his pants, and sodomized him. After sodomizing Martin C., Garcia turned him around and orally copulated him. During oral copulation, Garcia bit Martin C.’s penis. Garcia threatened to kill Martin C. if he told Maria S. what happened.
Martin C. had trouble sleeping that night. He did not say anything to Maria S. the next day when she took him to, and picked him up from, school because Garcia was with them. When Martin C. used the bathroom after coming home, his “bottom” bled. Martin C. then told Maria S., his aunt, and his uncle Enrique what Garcia had done to him.
Martin C. was taken to Children’s Hospital of Orange County, where he was examined by Dr. Tommy Kim. Dr. Kim observed abrasions on Martin C.’s penis and lesions around his rectum, which were consistent with sexual assault occurring within the previous 24 hours. Anaheim Police Officer German Alvarez spoke with Martin C. at the hospital. Martin C. said that Garcia hit him numerous times, sucked Martin C.’s penis, and placed his penis in Martin C.’s buttocks.
Dr. Frederic Bruhn of the Child Abuse Services Team conducted a physical examination of Martin C.’s penis and rectal area on September 5, 2007. Dr. Bruhn observed abrasions on Martin C.’s penis, anus, and perianal area. Dr. Bruhn testified those findings were consistent with what Martin C. had told him and were “highly suspect” of sexual abuse.
The interior crotch area of the shorts Garcia wore on the night of the assault was tested for DNA. Garcia could not be eliminated as a major contributor of the DNA, and Martin C. could not be eliminated as a minor contributor.
DISCUSSION
I. Background
The jury began deliberating at 2:33 p.m. on February 2, 2009 and left for the afternoon at 4:30 p.m. The jury resumed deliberations the next morning at 9:32 a.m. At 10:05 a.m., the jury sent a note asking: “Do we the jury have any recourse if, a juror has stated ‘I am not changing my mind-there is no evidence that proves he is guilty, no matter what. I am not changing my mind, ’ and said they are not willing to be open minded upon the jury’s review of the case.” Five minutes later, the jury sent a request for the transcript of the testimony of “the mother, uncle & sister, police [A]lvarez.”
At 10:50 a.m., the trial court met with counsel in chambers to discuss the jury’s notes. At 11:18 a.m., in open court, the court met with counsel and the jury to inquire of the jury and “define for the jurors what the problems are that the court perceives in light of the two communications and to reread the appropriate portion of [CALCRIM No.] 3550, about their obligation to deliberate.” After rereading CALCRIM No. 3550 to the jury, the court stated: “[H]aving read you that portion of that last instruction and considering that I am confused by the request for read back that came out after the first note, Juror Number Four [the foreperson], without telling me anything about what is going on in your deliberations, because we don’t want to know... I want you to respond to this. [¶] It seems to me that if you are asking for read back that all 12 of you may be continuing to deliberate. Can you respond to just that conclusion that I may have reached?”
The jury foreperson explained that the jury had decided to continue deliberating while waiting for the response to the first note and wrote down the testimony they wanted to have read back. The foreperson then explained the reason for the first note: “I believe that there is a concern because now we are able to hear every one speak and give us their interpretation of their thoughts and the facts that were presented and so on. [¶] I believe that there may be an issue of competency. And that is something that we’re still trying to determine, but that is a real thought.”
The court asked the jury foreperson to explain what was meant by the word “competency.” The foreperson responded: “In my mind competency would be the inability to follow and relate facts as they are presented and connect them so that you can come to a determination of those facts.”
The court asked the foreperson whether, assuming the jury would be asked to continue deliberating, a readback of testimony would be of assistance. The jury foreperson replied that a readback would be mainly to assist “that juror” but the entire jury would benefit. The court asked if it was possible to narrow the testimony to be read back. The foreperson replied, “that request was made by this specific juror” and the rest of the jury did not need “as much information.” The court sent the jury back to the jury room and asked the jury to formulate a more specific request to read back testimony.
After the jury returned to the jury room, the court met with counsel and stated, “[i]t does seem to the court that there is a juror who may be... the only one [who] would prevent this case from going to verdict.” Of that juror, the court stated, “at least that juror is open-minded to receiving additional read back, which would suggest that the jurors probably deliberated.” The court asked counsel what they would like to do and suggested bringing out the jury foreperson alone to further identify the problem. The prosecutor asked for further inquiry of the jury foreperson. Defense counsel was opposed to any further inquiry on the matter, unless there was a true issue of incompetency.
After a short recess, the court announced it had received a note from the jury, timed at 10:35 a.m., asking for a readback of “Testimony from [uncle] Enrique: What Martin [C.] said to Enrique about what happened to him [¶] Testimony for Dr. Kim: What Martin [C.] said to Dr. Kim about what happened to him [¶] Testimony from Officer Alvarez: What Martin [C.] said to Officer Alvarez about what happened to him.” Based on the note, the court concluded the jury was engaged in the deliberative process and there was no need to inquire further of the jury foreperson.
The court reporter read back the requested testimony from 2:50 p.m. to 3:00 p.m. At 3:26 p.m., the jury announced it had reached its verdict. The jury was polled and each juror confirmed the verdict as his or hers.
About one month later, Garcia filed a motion to obtain contact information about a juror, identified as Juror No. 6. Defense counsel’s declaration in support of the motion stated: “I would now like to speak to the juror in question to inquire as to whether[, ] when her mental competence was questioned[, ] that had any effect on her deliberations. I am mainly interested in knowing whether she felt intimidated or humiliated after the comments and whether she proceeded to engage in deliberations after that or simply agreed to the majority vote in fear of being slandered again.” The prosecution opposed the motion.
After a hearing, the trial court denied the motion. The court stated it was surprised by the first jury note because the prosecution evidence was “overwhelming” and concluded: “[T]he jury did exactly what they were supposed to do. They hit a bit of a roadblock. They let the court know about it. They gave the court a chance to inquire and to encourage additional deliberations. And then they went back to deliberate. [¶] There is absolutely nothing in the record or any of the hearsay that has been provided to me that took place outside the courtroom... to suggest that there is a prima facie showing of good cause for disclosure of the identity of one or more jurors in this case.”
Garcia moved for a new trial, asserting: “[A] juror who at one point had expressed strong conviction that Defendant was not guilty changed her mind 180 degrees almost immediately after she was accused of being ‘incompetent’ and not able to grasp common facts by the foreperson and in open court. The strong public allegations made against the involved juror on the record and in open court proceedings clearly intimidated and humiliated the juror. Considering the turn of events which lead to the single ‘hold out’ juror’s change of mind it is more likely that the verdict reached was not a fair expression of opinion of the juror involved.”
At the hearing on the motion for a new trial, the court recounted the events during jury deliberation, concluded no juror misconduct took place, and denied the motion. The court stated that in its experience, it is normal for a jury to reach a verdict soon after testimony is read back late in deliberations; therefore, the fact the jury reached a verdict in this case soon after hearing testimony read back did not indicate juror misconduct.
II. The Trial Court Did Not Abuse Its Discretion by Denying Garcia’s Motion for Personal Juror Identifying Information.
Garcia argues the trial court erred by denying his motion for access to personal juror identifying information. We conclude the trial court did not err by denying the motion.
Code of Civil Procedure section 206, subdivision (g) provides that following the recording of a jury’s verdict a criminal defendant may petition the trial court pursuant to Code of Civil Procedure section 237 for access to “personal juror identifying information” if “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.”
Code of Civil Procedure section 237, subdivision (b) provides: “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.”
Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
In People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes), the appellate court applied a balancing test to conclude the trial court did not abuse its discretion by denying a defendant’s request for disclosure of personal juror identifying information. Although Rhodes was decided before the 1992 amendment of Code of Civil Procedure former section 206 and the enactment of Code of Civil Procedure section 237, subdivision (b) to require a showing of good cause, the Rhodes test survived. (See Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1095; People v. Carrasco, supra, 163 Cal.App.4th at p. 990; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321, fn. 8 [citing cases holding Rhodes test still valid]; People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
The Rhodes court recognized a rule that “upon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.... [¶] Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information....” (Rhodes, supra, 212 Cal.App.3d at pp. 551 552.)
Garcia argues he met his burden of setting forth a sufficient showing to support a reasonable belief that juror misconduct occurred because the jury foreperson stated in open court “there may be an issue of competency” as to Juror No. 6. Garcia contends: “[T]he supporting evidence was actually produced in open court. It was the combination of a juror being called incompetent in public and a verdict being returned shortly thereafter that provided the evidence supporting release of juror contact information.” He contends personal juror identifying information was necessary to determine whether Juror No. 6 agreed to the guilty verdict out of humiliation and intimidation after being called incompetent in open court.
Garcia did not meet his burden. Evidence Code section 1150, subdivision (a) provides: “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.”
The information Garcia sought to obtain from Juror No. 6 would have been inadmissible under Evidence Code section 1150, subdivision (a). The sole purpose for which Garcia sought access to personal juror identifying information was to learn whether the jury foreperson’s competency statement had any effect on Juror No. 6 and influenced Juror No. 6 to assent to the verdict. Garcia’s trial counsel, in seeking personal juror identifying information, declared he wanted to inquire of Juror No. 6 “as to whether[, ] when her mental competence was questioned[, ] that had any effect on her deliberations.” Counsel was interested in learning whether Juror No. 6 “felt intimidated or humiliated after the comments” and whether Juror No. 6 “simply agreed to the majority vote in fear of being slandered again.” Garcia concedes he was not seeking access to personal juror identifying information to learn what was said or what occurred in the jury room during deliberations.
In the appellant’s opening brief, Garcia asserts: “In the present case, we don’t have to get into what happened in the jury deliberation room because the humiliation and intimidation occurred outside deliberations. It occurred right out in public, in the courtroom.”
Garcia argues Evidence Code section 1150, subdivision (a) is inapplicable because he did not seek information on Juror No. 6’s mental processes but on whether Juror No. 6 “just abandoned deliberations and voted guilty.” This attempted distinction is without merit. Section 1150, subdivision (a) states that no evidence may be received “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.” (Italics added.) Thus, evidence would not be admissible to show whether the competency statement had the effect of causing Juror No. 6 to abandon deliberations or influencing Juror No. 6 to agree to the guilty verdict.
The other basis for Garcia’s request for access to personal juror identifying information was the assertion the jury returned the verdict shortly after its foreperson made the competency comment. After the proceeding in which the jury foreperson made the competency statement, the jury returned to the jury room to continue deliberating. Soon thereafter, the trial court read a note requesting that specific testimony be read back. The court reasonably concluded the note indicated the jury was still deliberating. Several hours passed as the jury took a lunch break and the court met with counsel to determine which parts of the testimony would be read back. From 2:50 p.m. to 3:00 p.m., the court reporter read back testimony to the jury. At 3:26 p.m., the jury returned its verdict.
The reasonable inference from this sequence of events is that Juror No. 6 assented to the verdict based on the readback of the testimony, not out of humiliation or intimidation. That was the only reasonable inference in light of the overwhelming evidence of guilt. In addition, when the jury was polled after rendering its verdict, Juror No. 6 did not mention being humiliated or intimidated but unhesitatingly confirmed that was her verdict.
III. The Trial Court Did Not Err by Denying Garcia’s Motion for a New Trial.
Garcia contends a new trial was required pursuant to Penal Code section 1181, subdivision 4, which permits the trial court to grant a new trial “[w]hen the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.” Garcia’s motion for a new trial asserted Juror No. 6 agreed to the guilty verdict after being intimidated and humiliated by the jury foreperson’s competency statement.
A trial court’s denial of a motion for a new trial is reviewed under an abuse of discretion standard. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.)
The trial court did not abuse its discretion by denying Garcia’s motion for a new trial. As we have explained, the reasonable inference to be drawn from the sequence of events on the final day of deliberations was that Juror No. 6 assented to the verdict based on the readback of the testimony, not out of humiliation or intimidation. During the jury poll, Juror No. 6 unequivocally confirmed the verdict. In denying the motion for a new trial, the trial court stated that in its experience, it is normal for a jury to reach a verdict soon after testimony is read back late in deliberations. Thus, the trial court correctly concluded, the fact the jury reached a verdict soon after hearing testimony read back did not indicate juror misconduct. The trial court heard the jury foreperson make the competency statement and was in a far better position than we are to determine the meaning, intent, and potential effect of that statement.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.