Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. Super. Ct. No. MCR030495, John W. DeGroot, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant was convicted of willfully inflicting corporal injury on his wife. During the trial, a spectator, defendant’s father, stared menacingly at the jury. After trial, defendant moved for disclosure of juror identifying information, in order to obtain information on which to base a motion for new trial on the ground spectator misconduct improperly influenced the jury. The trial court denied the motion. We find no abuse of discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of one count of willfully inflicting corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)) and one count of dissuading a victim and witness from reporting a crime (§ 136.1, subd. (b)(1)). The victim in both counts was defendant’s wife, Christina Granado.
All further statutory references are to the Penal Code, unless otherwise indicated.
The evidence at trial indicated that, on December 14, 2007, at around 2:00 a.m., defendant entered Christina’s home through a broken window and hit and kicked her. She locked herself in a bedroom and called 911, but hung up without speaking to anyone. Police officers responded, but got no answer when they knocked on the door and identified themselves; they walked around the building and saw the broken window. Pushing aside a security door that was propped against the window from the inside, the officers saw defendant in the hallway inside, and Christina running toward the front door, which she opened to admit them. The officers handcuffed defendant; one stayed with him in the living room, while the other spoke with Christina in the front yard. Both while Christina was in the house, and while she was in the front yard, defendant told her, or yelled at her, not to talk to the officers. The officers observed redness on the left side of Christina’s face and swelling near her nose. The next day, Christina’s mother observed her swollen nose and bruising on her back, stomach, and legs. Defendant denied entering the house through a window, hitting or kicking Christina, and telling her not to speak with the officers.
On the second morning of the two-day trial, three or four jurors complained to the bailiff that a spectator in the audience was “mad-dogging” them, that is, staring at them menacingly. The jurors seemed upset and uncomfortable with the staring. Several jurors asked for an escort to their cars at lunchtime. The bailiff discussed with the prosecutor and defense counsel what should be done; as a result, the bailiff spoke with the spectator and advised him he was not allowed to stare at the jurors. The spectator, defendant’s father, did not return to the courtroom after the lunch recess. No one brought this incident to the attention of the court during the trial.
Two months after the conclusion of the trial, defendant filed a motion for disclosure of the jurors’ personal identifying information. He sought the information to investigate whether there were grounds for a motion for new trial based on spectator misconduct. The court held a hearing at which the bailiff and defendant testified. It concluded defendant had not made a prima facie showing of good cause for release of the juror information, and denied the motion. Defendant appeals, contending the trial court abused its discretion and denied him a fair trial by an impartial jury when it denied the motion for disclosure of juror information.
DISCUSSION
I. Standard of Review
Denial of a motion to disclose juror personal identifying information is reviewed under the deferential abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
II. Disclosure of Juror Personal Identifying Information
“Pursuant to 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 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.…” (Code Civ. Proc., § 237, subd. (b).)
Defendant attempted to show good cause for the disclosure of the juror information by presenting evidence of spectator misconduct and arguing that disclosure was needed in order to investigate whether that misconduct and its effect on the jury provided grounds for a new trial motion. “[S]pectator misconduct constitutes a ground for new trial ‘if the misconduct is of such a character as to prejudice the defendant or influence the verdict.’” (People v. Cornwell (2005) 37 Cal.4th 50, 87 (Cornwell), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn., 22.) “‘[The] mere fact that a spectator is guilty of some misconduct... does not mandate the declaration of a mistrial, ... especially where the judge takes immediate action to avert possible juror prejudice.’ [Citation.]” (People v. Miranda (1987) 44 Cal.3d 57, 114 (Miranda).) “A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022 (Lucero).) This is so because “the court ordinarily is present in the courtroom at any time when a spectator engages in an outburst or other misconduct in the jury’s presence and is in the best position to evaluate the impact of such conduct on the fairness of the trial.” (Cornwell, supra, 37 Cal.4th at p. 87.) In cases of spectator misconduct, prejudice is not presumed; defendant must establish it. (Id. at p. 88.)
“[W]ith narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘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.’” (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton), italics omitted.) Evidence is not admissible to show the actual effect of any statement, conduct, condition, or event on the jury, “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); People v. Lewis (2001) 26 Cal.4th 334, 388-389.) In this case, in attempting to show juror taint, defendant could inquire about the jurors’ observations of spectator conduct in the courtroom, but he could not inquire whether or how that conduct might have affected their deliberations or their verdict. On a motion for new trial asserting the jury was tainted, the question would be whether there was “any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (Hamilton, supra, at p. 294, fn. omitted.)
A. Waiver
“A defendant’s failure to object to and request a curative admonition for alleged spectator misconduct waives the issue for appeal if the objection and admonition would have cured the misconduct.” (People v. Hill (1992) 3 Cal.4th 959, 1000 (Hill), disapproved on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Defense counsel learned of the alleged spectator misconduct on the second day of trial, when the bailiff discussed the jurors’ complaints with both attorneys. The trial was still in progress at that time, but defense counsel did not raise an objection, ask for an admonition to the jury to disregard the spectator’s conduct, or even bring the matter to the court’s attention at all. “[B]ecause a spectator does not wear the same cloak of official authority as a prosecutor, most instances of spectator misconduct will likely be more easily curable than those of a prosecutor.” (Hill, supra, 3 Cal.4th at p. 1000.) The spectator misconduct was minor and ceased after the jurors complained to the bailiff. There is nothing in the record to suggest a timely and appropriate instruction would not have cured any misconduct. The misconduct was less serious than in cases in which the court has held the issue was waived or the court’s admonition cured any misconduct.
In Lucero, the defendant was tried for the murder of two young girls. During closing argument, the defendant’s attorney argued that the absence of evidence that neighbors heard screams or other sounds indicated the killings were not premeditated, but occurred at the same time in an explosion of violence. As the jury was preparing to leave the courtroom to begin deliberations, the mother of one of the girls cried out, “‘There was screaming from the ball park. They couldn’t hear the girls because there was screaming from the ball park. That’s why they couldn’t hear it. The girls were screaming-screaming from the ball park, screaming, screaming, screaming. That wasn’t in the case. Screaming, screaming from the ball park. Why wasn’t that brought up? Why, why, why?’” (Lucero, supra, 44 Cal.3d at p. 1022, fn. omitted.) The mother was escorted from the courtroom, but her screaming could still be heard from the corridor. (Ibid.) The trial court gave the jury a cursory admonition to “‘disregard the outburst’” before sending them to deliberate. It denied the defendant’s motion for a mistrial. (Ibid.)
The defendant argued on appeal that the mother’s outburst caused particularly serious prejudice because it came at the worst possible time (just before the jury began deliberations), imparted facts outside the record, and occurred in a capital case. (Lucero, supra, at pp. 1022-1023.) The court noted there was a single isolated outburst followed by a prompt admonition. Although it opined the trial court should have given a more thorough admonition not to consider facts outside of the record and not to be influenced by the emotional display, it concluded the trial court did not abuse its discretion by denying the motion for a mistrial. (Id. at p. 1124.)
In Hill, during the defendant’s trial on charges of robbery and two counts of murder, the pathologist testified one of the victims had morphine in his urine; a woman in the audience, apparently the victim’s mother, interrupted, stating multiple times that her son never used a needle. (Hill, supra, 3 Cal.4th at p. 1001.) The trial court told her to step outside until the witness’s testimony was complete. Later that day, when the victim’s wife was asked when his funeral was, an unidentified spectator stated, “‘Twenty-first.’” (Ibid.) At the end of the day, the trial court admonished the jury to disregard any statements by spectators, who were not under oath and whose “‘reactions have no value to you whatsoever.’” (Id., at p. 1001.) Later, during closing argument, as defense counsel was arguing there was no evidence the defendant intended to permanently deprive the victims of their property, a spectator left the courtroom in tears, stating, “‘Don’t make it like that, him killing my kids, all I had.… That was all I had.’” The trial court admonished the jury not to consider the outburst. (Id. at p. 1002, italics omitted.)
The appellate court held: “A defendant’s failure to object to and request a curative admonition for alleged spectator misconduct waives the issue for appeal if the objection and admonition would have cured the misconduct.” (Hill, supra, 3 Cal.4th at p. 1000.) It concluded the defendant had waived any challenge to the three remarks by failing to object to them, ask for an admonition to the jury to disregard the comments, or move for a mistrial. “[T]he spectator misconduct in this case was easily curable (and in fact was cured) by appropriate admonition.” (Ibid.)
The spectator misconduct in this case was brief and minor. It could have been cured by a prompt admonition to the jury to disregard the conduct. Although aware of the conduct during trial, defense counsel failed to request such an admonition. Defendant may not refrain from objecting or requesting a curative admonition during the trial, and then, having received an adverse verdict, challenge the verdict on the basis of the uncured spectator misconduct. We conclude defendant waived any claim of spectator misconduct by failing to raise the issue during trial and obtain a curative admonition to the jury. Accordingly, his allegations of spectator misconduct failed to demonstrate good cause for disclosure of the jurors’ personal identifying information.
B. Likelihood of influence on the jury
Even if defendant had preserved the issue of spectator misconduct for appeal, we would conclude the trial court did not abuse its discretion in finding that defendant failed to make a prima facie showing of good cause for disclosure of the juror information. Spectator misconduct is a ground for a new trial only if it is of such character as to prejudice defendant or influence the jury. (Miranda, supra, 44 Cal.3d at p. 114.) The spectator misconduct identified in this case is not of that character.
In Hill, after the court found the defendant had waived any challenge based on the three incidents of spectator comments, it also found the spectator comments were not prejudicial. (Hill, supra, 3 Cal.4th at p. 1000.) The comments were brief; two had nothing to do with the defendant’s guilt or innocence; the comments did not impart any information to the jury that was not in evidence; and the trial court admonished the jury to disregard them. (Id. at pp. 1001-1002.)
In People v. Chatman (2006) 38 Cal.4th 344, 366 (Chatman), defense counsel complained during jury selection that the victim’s mother, Mrs. Lo Bue, was speaking loudly and emotionally to the prosecutor’s wife in the presence of some prospective jurors. The wife stated Mrs. Lo Bue did not discuss the case, but merely said it was difficult for her. (Ibid.) During guilt phase testimony, Mrs. Lo Bue stated, “‘Excuse me, can you put the microphone close, please?’” (Id. at pp. 366-367.) Later, when the “defendant testified that he had repeatedly stabbed the victim ‘in a blind rage, ’ Mrs. Lo Bue interrupted by saying, ‘Are you satisfied now?’” (Ibid.) Defense counsel complained that, two or three times during his closing argument, Mrs. Lo Bue made sounds, causing jurors to look at her; the district attorney stated she had spoken only very softly, and her conduct was appropriate. The trial judge noted that neither he nor his clerk, court reporter, or bailiff had noticed any commotion or improper conduct. (Id. at p. 367.) At the penalty phase, when Mr. Lo Bue testified about going to the morgue and seeing his daughter’s body, Mrs. Lo Bue said, “‘I do too. I did too.’” (Id. at p. 368.) Defense counsel also complained that, during Mr. Lo Bue’s testimony, there was audible sobbing from Mrs. Lo Bue. (Ibid.)
The court observed that “[s]pectator misconduct is a ground for mistrial if it is ‘of such a character as to prejudice the defendant or influence the verdict.’ [Citation.]” (Chatman, supra, 38 Cal.4th at pp. 368-369.) The federal constitutional question, however, is “whether what the jury ‘saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.’” (Id. at p. 369.) The trial court admonished the jury to disregard the spectator conduct, both at the time it occurred and in the jury instructions. (Id. at p. 368.) It investigated the sounds from the audience and found they were not perceptible to the jury. (Id. at p. 369.) As to the question, “‘Are you satisfied now?’” and Mrs. Lo Bue’s statement that she too had viewed the body, the outbursts were unrelated to the defendant’s guilt or innocence and “provided the jury with no significant information it did not already know or might not readily surmise.” (Ibid.) “[A]ny reasonable juror would know that the crime had caused the victim’s family anguish.” (Ibid.) The court concluded prejudice was not established. “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis. The trial court is entrusted with broad discretion in ruling on mistrial motions. [Citation.] … We are confident that these outbursts did not yield a verdict based on caprice, or on impermissible or irrelevant factors. [Citation.]” (Id. at pp. 369-370.)
The spectator conduct on which defendant’s motion for disclosure was based was less serious than the spectator misconduct that occurred in Lucero, Hill, and Chatman. The spectator merely glared at the jury; he did not speak or communicate any information to the jury. He did not convey anything regarding defendant’s guilt or innocence. The evidence of the spectator’s identity was equivocal. The bailiff testified the spectator did not provide his name; he testified he “became aware” the spectator was defendant’s father, but he could not confirm that information. When asked who the spectator was, defendant testified, “They said it was my dad.” There was nothing to suggest the jury knew that the spectator in question was defendant’s father, or that he was in any way connected with defendant. The staring stopped after jurors complained; the bailiff spoke with the spectator, who did not return after lunch. There was no evidence of any subsequent complaints by the jurors; there was no evidence any juror asked for an escort to his or her car after the trial concluded. The trial court did not notice anything unusual in the conduct of the spectators. Before the trial court excused the jury, it asked the jurors if they had any questions, comments or suggestions; no one responded. None of them mentioned the spectator or expressed any concern about him staring at them during the trial. Although defense counsel was apprised of the jurors’ complaints about the spectator prior to jury deliberations, he did not advise the court of those complaints or request that the court instruct the jury to disregard the spectator’s conduct.
The declaration of defense counsel, submitted in support of the motion for disclosure, stated that, after the jury was discharged, he and the prosecutor spoke with two of the jury members. One woman “remarked to the effect that she felt as if she were putting away a potential murderer.” She “seemed agitated and anxious.” Defendant suggests this juror “exhibited a fear of death at worst, or an exaggerated personal antipathy for [defendant] at best, ” and seems to attribute her attitude to the spectator’s glaring. There was no evidence that either of the jurors mentioned the staring spectator to the attorneys, and nothing to indicate the woman’s reaction was related to anything other than the evidence presented at trial.
Defendant also argues that the brevity of the jury’s deliberations, which lasted about an hour, is evidence that the jury was improperly influenced. The trial itself was brief, lasting only two days, including jury selection. As the trial court noted, the evidence against defendant was strong.
The claimed spectator misconduct was brief, minor and not “‘of such a character as to prejudice the defendant or influence the verdict.’” (Cornwell, supra, 37 Cal.4th at p. 87.) It was not “‘so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial, ’” under the federal standard. (Chatman, supra, 38 Cal.4th at pp. 368-369.) If an admonition was sufficient to cure the spectator misconduct in Lucero, Hill, and Chatman, an admonition to disregard the spectator’s staring would have cured any misconduct in this case. We find no error in the trial court’s finding that defendant failed to make a prima facie showing that the need to investigate the reports of spectator misconduct constituted good cause for disclosure of the jurors’ personal identifying information. The trial court did not abuse its discretion or deny defendant a fair trial by denying defendant’s motion for release of juror information.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., DAWSON, J.