Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BA238532 of Los Angeles County. Robert J. Perry. Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jaime Gonzalez (defendant) was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a)), with findings of the personal discharge of a firearm causing death (§ 12022.53, subd. (d)) and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced him to a term of 25 years to life in state prison for the murder, enhanced by a consecutive term of 25 years to life for the discharge of a firearm and a consecutive term of 10 years as the crime was committed for the benefit of a criminal street gang.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appealed from the judgment, and in the decision in People v. Jaime Gonzalez, B182417, filed June 27, 2000 (unpub. opn.), we ordered the trial court to modify its sentence to strike the determinate term of 10 years imposed as a result of the finding on the gang enhancement. In lieu thereof, the trial court was ordered to impose a 15-year minimum term of parole eligibility pursuant to section 186.22, subdivision (b)(5). We also ordered a remand for the trial court to hold a hearing on whether a continuance should have been granted for the purpose of permitting trial counsel to investigate juror misconduct.
On remand, the trial court, as ordered, corrected the sentencing error and reconsidered a defense motion for a continuance. It denied the motion for a continuance and reinstated the judgment.
This appeal is from the judgment imposed after the remand in the prior appeal.
In the current appeal, defendant contends that: (1) the trial court abused its discretion and violated defendant’s right to due process by denying the motion to continue for the purpose of developing a claim of juror misconduct; and (2) the trial court abused its discretion by denying the request for disclosure of juror locating information.
Whether to grant the motions at issue here were matters within the broad discretion of the trial court. The trial court properly exercised its discretion when it denied defendant’s motions. Accordingly, we affirm the judgment.
On August 3, 2007, defendant filed a request asking this court to appoint new appellate counsel. We read and considered the request, and it is denied.
FACTS
As we explained in the prior appeal, defendant’s conviction arises from the February 17, 1999, murder of Danny Valenzuela, a Clover gang member. The trial evidence established that on February 17, 1999, defendant fatally shot Valenzuela while Valenzuela was speaking on the telephone inside his Lincoln Park, Los Angeles residence. Defendant was a member of the rival Eastlake gang, and the trial evidence supported a jury finding that the shooting was gang-related. During the trial, the victim’s mother identified defendant in court as her son’s assailant.
I. The Motion for a Continuance in order to Prepare the New Trial Motion
After trial, trial counsel made an oral motion to continue for the purpose of preparing a new trial motion. Trial counsel based his motion on a Memorandum prepared by his investigator. The Memorandum summarized the statements made by a relative of defendant’s, Moses, to the investigator, as well as the interview the investigator had with a juror, Alex.
Moses had informed the investigator that Moses and one of the jurors, Alex, were fellow employees at a Bristol Farms Market. After the trial, Moses claimed that Alex had told Moses that “the case was going to be a hung jury because he and two other younger jurors did not want to convict Jaime, but the older jurors did.” According to Moses, Alex also told Moses that “he did not want to convict [defendant], but [defendant] did not take the stand and had not shown any remorse after the victim’s mother pointed him out as the shooter.”
The investigator then contacted Alex, who told the investigator that he had told Moses that there was going to be a hung jury. However, this was only after Moses informed him that defendant was not the assailant and after Moses disclosed “certain things” about the mother’s background. The investigator asked about his statement to Moses concerning the jury deliberations. Alex replied that defendant’s failure to take the stand and his failure to demonstrate remorse in court were only two of the several reasons Alex had for concluding that defendant was guilty. Alex said that the jury focused on three issues: identity, whether Jaime was a gang member, and whether a firearm was discharged during the murder. The jurors concluded that the prosecution had carried its burden of proof on these issues. Alex elaborated that the prosecution had proved identity circumstantially as it had produced evidence that a bloody jacket found in the rear seat of the car the assailant used to flee from the victim’s residence belonged to defendant and that defendant’s blood was on that jacket. Alex told the investigator that he was not influenced by anyone in reaching a conclusion of guilt and that he based his decision on the trial evidence. Alex explained that he did have some initial doubts about guilt because of the way in which the police had investigated the crime.
The investigator asked Alex whether defendant’s failure to testify had influenced his conclusion as to guilt. Alex replied that “it had been mentioned by some of the jurors, but that it was not the determining factor that found him guilty.” The investigator inquired whether Alex would have acquitted defendant if defendant had testified and if Alex had believed defendant’s testimony. Alex replied that to overcome the prosecution evidence, defendant would have had to have presented an alibi or a witness to vouch for him. Alex expressed satisfaction with the verdict.
II. The Proceedings on Remand following the Prior Appeal
On remand, new counsel, Sharon Morris (hereinafter trial counsel), was appointed to represent defendant. On November 29, 2006, trial counsel filed an “Application for Order Disclosing Jurors’ Addresses and [Telephone] Numbers.” In support of the application, trial counsel attached her own affidavit, in which she argued that Alex’s statements to the investigator warranted granting the application. On December 21, 2006, the prosecutor filed an opposition to the motion to continue for the purpose of preparing a motion for new trial, arguing that Alex’s statements to the investigator did not require a continuance. On January 5, 2007, the parties filed further “Opposition.” The trial court deferred considering that motion until it determined the motion to continue.
On January 23, 2007, the trial court said that it had read and considered the parties’ written application and oppositions. It said that it had also read and considered the case authorities set out in the opinion filed by the Court of Appeal. The trial court said that it was exercising its discretion pursuant to the authorities cited in the opinion. It explicitly denied the motion to continue, observing that the “evidence of potential juror misconduct presented in the memorandum of this hearing is simply insufficient in the [trial] court’s view to warrant the granting of the requested continuance.” By implication, the trial court also denied the “Application” to disclose juror locating information.
The trial court ordered the original judgment reinstated.
After the trial court’s ruling, trial counsel vigorously argued the facts disclosed by the investigator’s Memorandum and asked the trial court to reconsider its ruling.
The trial court declined reconsideration.
DISCUSSION
I. THE MOTION TO CONTINUE
Defendant contends that the trial court abused its discretion when it failed to grant his motion. We disagree.
In determining whether there is good cause for a continuance, the “‘“trial judge . . . must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on . . . witnesses . . . and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’” (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.) We review rulings on such motions for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 318.)
A denial of due process occurs only if, considering the circumstances of the case, the trial court’s ruling was arbitrary, capricious, or irrational. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013; accord, People v. Smithey (1999) 20 Cal.4th 936, 1011-1012; People v. Jones, supra, 17 Cal.4th at p. 318.)
Under California law, a juror’s actual bias provides grounds for a new trial pursuant to section 1181, subdivision 3. Actual bias may be shown by an objective fact likely to have improperly influenced the jury’s verdict. (People v. Nesler (1997)16 Cal.4th 561, 582; see People v. Lewis (2001) 26 Cal.4th 334, 389.)
When a party seeks a new trial based on juror misconduct, the trial court must determine from admissible evidence whether misconduct occurred. Prejudice is presumed where there is misconduct. The presumption is rebutted where the People demonstrate a lack of prejudice. (People v. Loot (1998) 63 Cal.App.4th 694, 697; accord, People v. Danks (2004) 32 Cal.4th 269, 303-304.)
In reviewing a denial of a motion for a new trial based on juror misconduct, we accept the trial court’s credibility determinations and findings on questions of historical fact to the extent they are supported by substantial evidence. We review de novo the trial court’s determination of prejudice. (People v. Nesler, supra, 16 Cal.4th at p. 582; see People v. Ault (2004) 33 Cal.4th 1250, 1260-1261.)
In People v. Hayes (1999) 21 Cal.4th 1211, the court explained: “When allegations of juror misconduct made in a criminal trial raise a presumption of prejudice, the court is not limited, as it would be in a civil case, to consideration of evidence presented by affidavit or declaration to resolve whether a new trial motion should be granted. The court may conduct an evidentiary hearing, at which jurors may testify, to determine the truth of the allegations if the court concludes this is necessary to resolve material, disputed issues of fact. (People v. Hedgecock (1990) 51 Cal.3d 395, 414-419 (Hedgecock).) . . . [¶] When a trial court is aware of possible juror misconduct, the court ‘must “make whatever inquiry is reasonably necessary”’ to resolve the matter. (Hedgecock, supra, 51 Cal.3d at p. 417.) It must do so, however, only when the defense comes forward with evidence that demonstrates a ‘strong possibility’ of prejudicial misconduct. (Id. at p. 419.) [¶] Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim of juror misconduct.” (People v. Hayes, supra, at pp. 1255-1256, italics added.)
“This does not mean, however, that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct. The hearing should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.” (People v. Hedgecock, supra, 51 Cal.3d at p. 419; see also People v. Carter (2003) 30 Cal.4th 1166, 1216.)
In our opinion in the prior appeal, we explained that the continuance in this case was not compelled, and the granting of the motion on the basis of the original record was a matter entirely within the trial court’s discretion. On remand, no new information, affidavit, or testimony was proffered by the defense. An affidavit signed by Alex was not presented, and he was not called as a witness. Thus, the record has not changed, and we reach the same conclusion that we did in our previous opinion: the motion to continue is not compelled. The claims of juror misconduct were based on hearsay, which the trial court was entitled to discount or to disregard, as the trial court deemed appropriate. The defense failed to come forward with “‘evidence demonstrating a strong possibility that prejudicial misconduct ha[d] occurred.’” (People v. Avila (2006) 38 Cal.4th 491, 604.) As this was a gang case, substantial justice and the potential for juror harassment militated against granting the continuance. Accordingly, we conclude that it was well within the trial court’s discretion to deny the motion.
Defendant was not denied due process as the trial court’s ruling was a proper exercise of discretion. (People v. Smithey, supra, 20 Cal.4th at p. 1012 [in determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request; one factor to consider is whether a continuance would be useful]; see Ungar v. Sarafite (1964) 376 U.S. 575, 589-590; People v. Beames (2007) 40 Cal.4th 907, 921.)
II. THE APPLICATION FOR DISCLOSURE OF JUROR INFORMATION
Defendant contends that it was an abuse of discretion to deny his posttrial application for disclosure of jurors’ identifying information.
We conclude otherwise.
Code of Civil Procedure, sections 206 and 237 control the disclosure of personal identifying information about the jurors following a verdict. In pertinent part, Code of Civil Procedure section 237, subdivision (b), requires a hearing on disclosure only where the petition for disclosure and a supporting declaration “establish a prima facie showing of good cause for” disclosure. However, the trial court may deny a hearing where “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.” (Code Civ. Proc., § 237, subd. (b).)
In amending Code of Civil Procedure section 237 in 1995, the Legislature declared: “The Legislature finds and declares that jurors who have served on a criminal case to its conclusion have dutifully completed their civic duty. It is the intent of the Legislature in enacting this act to balance the interests of providing access to records of juror identifying information for a particular, identifiable purpose against the interests in protecting the jurors’ privacy, safety, and well-being, as well as the interest in maintaining public confidence and willingness to participate in the jury system.” (Stats. 1995, ch. 964, § 1, quoted in Historical and Statutory Notes, 13 West’s Ann. Code Civ. Proc. (1999 pocket supp.) foll. § 206, p. 150.)
We review the trial court’s ruling on an application to disclose juror identifying information for an abuse of discretion. (People v. Avila, supra, 38 Cal.4th at p. 604; Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.)
A trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct and to permit the parties to call jurors to testify at the hearing. (People v. Avila, supra, 38 Cal.4th at p. 604.) However, here, the only indication of juror misconduct was hearsay contained in the defense investigator’s memorandum. On remand, defendant did not call the juror in question as a witness during the motions to continue or to disclose juror identifying information, nor submit the juror’s affidavit. Trial counsel did not claim the juror was unavailable. As we concluded in our previous opinion, it seems likely from the juror’s hearsay declarations that if the juror was called and examined during a hearing, the juror would indicate that neither he nor the other jurors committed misconduct during jury deliberations. Accordingly, the trial court properly exercised its discretion by concluding that no good cause required a disclosure of juror locating information and that there was a showing on the record of facts that established a compelling interest against disclosure. (Ibid.)
The Attorney General observes that the trial court reserved the issue of the Code of Civil Procedure 237 application for juror locating information until after it had ruled on the motion to continue and never explicitly ruled on that motion. Defendant was not precluded on remand from filing the application for juror locating information. However, after the trial court denied his motion to continue, trial counsel failed to press for a ruling on the application for juror information. We have treated the application as having been impliedly denied by the trial court. However, trial counsel’s failure to press for a ruling on his application also leads to a conclusion of waiver. (See People v. Cunningham (2001) 25 Cal.4th 926, 984 [failure to press for a ruling on a motion for severance waives that issue on appeal].)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.