Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06518
BLEASE , Acting P. J.
A jury found defendant Jacqueline Mae Hughes guilty of possessing methamphetamine with intent to sell (Health & Saf. Code, § 11378), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). They also found true the allegation that defendant was personally armed with a firearm during the commission of her crime (Pen. Code, § 12022, subd. (c)) and was previously convicted of a serious felony (Pen. Code, §§ 667, subds. (b)-(i), and 1192.7, subd. (c)). Sentenced to an aggregate term of seven years in state prison, defendant appeals her conviction.
On appeal, defendant claims the trial court erred in denying her request to continue the trial, abused its discretion in denying her request to unseal juror identification information, and committed instructional error. Defendant further claims she was prejudiced by prosecutorial misconduct. Finding none of these claims to have merit, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, defendant was charged with possession of methamphetamine with intent to sell (Health & Saf. Code, § 11378), while personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and being a felon in possession (Pen. Code, § 12021, subd. (a)(1)). After more than 60 court appearances and 40 trial continuances, the parties appeared for trial on July 7, 2008, at which time defendant requested another continuance to acquire all relevant evidence, including securing a witness who lived in Washington. The witness, “Gordy,” would testify that the gun found in defendant’s apartment was his gun, not the defendant’s. Counsel said the witness was cooperative and would testify but would not be able to leave Oregon for another four weeks due to financial constraints. The trial court denied the request, but agreed to trail the matter for a week, which it did.
A jury was empanelled on July 14, 2008. One week later, the jury found defendant guilty as charged, and the following day found true the allegation that defendant was previously convicted of a serious felony.
On September 17, 2008, defendant appeared for sentencing but petitioned the court to unseal juror identification information and a motion for a new trial. The court denied both the petition and the motion for new trial and sentenced defendant to an aggregate term of seven years in state prison. Defendant appeals.
DISCUSSION
A. Motion to Continue The Trial
Defendant contends the trial court abused its discretion in denying her July 7, 2008, request to continue the trial. The right to continue a trial is not unlimited. A continuance will be granted only upon a showing of good cause. (Pen. Code, § 1050, subd. (e).) The granting or denial of a continuance motion rests within the sound discretion of the trial court. (People v. Mickey (1991) 54 Cal.3d 612, 660.) Therefore, the trial court's ruling will be affirmed on appeal absent a showing of an abuse of discretion. (Ibid.)
After three years and 40 continuances, defendant appeared on the day set for trial and asked for another continuance in order to secure an out-of-state witness, whom she acknowledged was cooperating. The witness would testify that the gun found in defendant’s home was his gun, not the defendant’s. Defendant contends the testimony was critical, but her son offered the same testimony. Under these circumstances we find the trial court acted well within its discretion in denying defendant’s motion.
Defendant further contends that, if the trial court was perturbed by trial counsel’s repeated delays, it was incumbent upon the trial court to remove counsel – not punish the defendant. Defendant confuses the court’s authority for an obligation.
Trial courts have the discretion, under limited circumstances, to intervene and replace trial counsel on their own motion. (See, e.g., Stevens v. Superior Court (1988) 198 Cal.App.3d 932, 937-940 [court has authority to replace retained counsel if counsel cannot be prepared to go to trial in a timely manner]; People v. Lucev (1986) 188 Cal.App.3d 551, 556-557 [court has discretion to relieve counsel on its own motion, though that discretion is “severely limited”].) Trial courts are not obligated to intervene and replace trial counsel on their own motion. Accordingly, defendant’s claim fails.
Defendant also claims the denial of her motion to continue the trial violated her constitutional right to a jury trial. Defendant failed to raise this objection in the trial court. Accordingly, she has forfeited the claim on appeal. (People v. Ledesma (2006) 39 Cal.4th 641, 729 [claim that allowing juror to take home the jury instructions violated defendant’s constitutional right to a jury trial was forfeited because defendant failed to raise the objection in the trial court].)
B. Motion to Unseal Juror Information
Defendant argues the trial court erred in refusing her request to unseal the juror’s information. “Pursuant to [Code of Civil Procedure] 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).)
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....”
A request for disclosure of personal juror identifying information must be “accompanied by a sufficient showing to support a reasonable belief jury misconduct occurred, diligent efforts were made to contact the jurors through other means, and that further investigation was necessary to provide the court with adequate information to rule on a motion for new trial.” (People v. Wilson (1996) 43 Cal.App.4th 839, 850; see also People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552.) “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 as a matter of right in each case. This rule safeguards both juror privacy and the integrity of our jury process against unwarranted ‘fishing expeditions’ by parties hoping to uncover information to invalidate the jury's verdict. At the same time, it protects a defendant’s right to a verdict uninfluenced by prejudicial juror misconduct by permitting, upon a showing of good cause, access to juror information needed to investigate allegations of juror misconduct.” (People v. Rhodes, supra, at p. 552, fn. omitted.) “A failure to make this required showing justifie[s] denying the request for disclosure.” (People v. Wilson, supra, 43 Cal.App.4th at p. 850.)
The burden of establishing good cause lies with the movant, in this case defendant (People v. Granish (1996) 41 Cal.App.4th 1117, 1131), and we review the trial court’s ruling for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317).
Here, in support of her motion to unseal the juror’s information, defendant submitted only a declaration from trial counsel. In his declaration, counsel averred that one juror overheard another juror, the foreperson, say to other jurors that the defendant “looked guilty.” Such a declaration is insufficient.
First, the statement made by counsel in his declaration is double hearsay. Thus, it is insufficient evidence of juror misconduct. (See People v. Avila (2006) 38 Cal.4th 491, 605 [hearsay is generally insufficient to trigger court’s duty to investigate juror misconduct].) Second, counsel failed to include in his declaration what other efforts he had made to obtain the jurors’ information, as required by law. (People v. Rhodes, supra, 212 Cal.App.3d at pp. 551-552.) And third, counsel failed to allege the statements were made before the jury reached a verdict. (See People v. Avila, supra, 38 Cal.4th at p. 605 [declaration insufficient to trigger investigation into jury misconduct if it fails to identify when the alleged misconduct occurred].) Accordingly, defendant failed to satisfy her burden on the motion.
Moreover, defendant’s right to file a motion to unseal juror information is limited to the filing of a “timely motion.” (People v. Rhodes, supra, 212 Cal.App.3d at pp. 551-552.) Here, defendant waited a month after learning of this alleged colloquy between jurors before moving to unseal the juror information. Under these circumstances we find the court acted within its discretion in denying defendant’s request.
Defendant further contends the matter must be remanded to perfect the record because the trial court failed to “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 is wrong. The trial court made clear on the record that it was denying defendant’s motion as untimely. Moreover, it is evident from the record that defendant’s motion failed at every level and a remand would not change the outcome. We will not waste judicial resources.
C. Instructional Error
Following defendant’s conviction, a jury trial was held on the alleged prior conviction. The prosecution admitted a certified copy of defendant’s 2000 conviction for robbery and the trial court instructed the jury as follows: “The People have alleged that the defendant was previously convicted of another crime. It has already been determined that the defendant is the person named in Exhibit 25.
“You must decide whether the evidence proves that the defendant was convicted of the alleged crime....” Defense counsel then argued to the jury that the People had failed to prove the person named in “Exhibit 25” was the defendant: “Where did you folks receive any evidence that there is fingerprints contained in this packet, People’s 25, that match the fingerprints belonging to [defendant]. You didn’t hear that.
“Where did you hear from an expert who ran a criminal history on [defendant] to say, in fact, yes, I work for the California Department of Justice, or I work for the DA’s Office, I ran a certified wrap [sic] sheet on [defendant].”
After argument from both counsel, the court revised the jurors’ instructions: “Something I am going to instruct you with regard to that part of the particular instruction, 3101 when you get back there. [¶] It should read, you must determine whether the evidence proves that the defendant is the person named in Exhibit 25, and you must decide whether the evidence proves that the defendant was convicted of the alleged crime.” The matter was then submitted to the jury, who ultimately found true the allegation of defendant’s prior conviction.
The revised instruction, however, was incorrect because whether the defendant is the person previously convicted is an issue to be decided by the court, not the jury. (Pen. Code, § 1025, subd. (c).) Given these conflicting and erroneous instructions, defendant argues “[t]here is no jury on earth that would not have been confused and misled” by the court’s instructions. Thus, she contends there was error and it was not harmless. We agree there was error, but find it was harmless.
The jury heard argument from both sides on the issue of whether defendant was the person identified in “Exhibit 25”; the final instruction they heard was that it was their job to determine if that person was defendant. We presume the jury followed that instruction. (People v. Avila, supra, 38 Cal.4th at p. 574.) Defendant has failed to show how the result would have been different had the court determined defendant was the person identified in “Exhibit 25” prior to submitting the issue to the jury.
D. Prosecutorial Misconduct
Defendant raises two claims of prosecutorial misconduct, neither of which have merit.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
To raise a claim of prosecutorial misconduct on appeal, a defendant must make “‘a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury’” unless “(1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct.” (People v. Panah (2005) 35 Cal.4th 395, 462.)
Defendant first contends the prosecutor committed misconduct by attempting to shift the burden of proof on whether the pay-owe sheet found in defendant’s apartment was written by defendant. During defense counsel’s cross-examination of Agent Michelle Gregory, Agent Gregory admitted that the prosecution did not submit samples of defendant’s handwriting to the Department of Justice for comparison to the paw-owe sheet. On redirect, the prosecutor asked Agent Gregory whether the defense also could have submitted a handwriting sample to the Department of Justice and asked for a comparison. Agent Gregory answered, “[y]es,” but defense counsel objected to the question. The court sustained the objection, striking the question and the answer from the record. The court then admonished the jury, telling them that they were “not to consider that response and let it affect [their] deliberations.”
Defendant makes no argument as to why the court’s admonishment was ineffective or insufficient, saying only that “[a]rguably this first incident was cured by the court’s admonition to the jury.” We will not consider an argument that is not supported by analysis or authority. (People v. Gurule (2002) 28 Cal.4th 557, 618 [courts may reject claims raised that are not supported by argument or authority]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis].)
Defendant further contends the prosecutor committed misconduct with the following statement in closing argument: “He’s trying to say, I have a friend named Chuck Gordy. He has a gun. Defense wants you to think that the gun -- if Mr. Gordy does have one -- one, we don’t know because he’s not here. They’re friends, Mr. Price and Mr. Gordy, but yet where is Mr. Gordy? He didn’t come in to say that that was in fact his gun.” Defendant argues it was misconduct because the prosecutor knew Gordy was unavailable. Defendant did not raise this objection in the trial court.
A claim of prosecutorial misconduct is forfeited on appeal if there was no objection and request for admonition of the jury, unless a request would have been futile or an admonition would not have cured the harm. (People v. Earp (1999) 20 Cal.4th 826, 858; People v. Hill (1998) 17 Cal.4th 800, 820.) Defendant does not try to show that either of these conditions applies. Therefore, even if misconduct occurred, the claim is forfeited.
Defendant’s fallback ineffective assistance of counsel argument does not help her. Such a claim cannot succeed on direct appeal if, as here, the record does not show why counsel acted as he did, unless there could be no conceivable tactical reason for counsel’s conduct. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) It is rarely ineffective to refrain from objecting during closing argument, since counsel can normally choose instead to make a counter-argument and might reasonably think this less likely to annoy the jury. (See Jones, supra, at p. 1254; People v. Ghent (1987) 43 Cal.3d 739, 772.)
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as she had a prior conviction for a serious felony. (Pen. Code, § 4019, subds. (b), (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.