Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC066002.
Reardon, Acting P.J.
A jury convicted appellant Jamie Lee Terrell of one count of second degree robbery (Pen. Code, § 212.5, subd. (c)); two counts of first degree robbery (id., subd. (a)), with principal armed enhancements; one count of first degree burglary (§ 460, subd. (a)), with a principal armed enhancement; two counts of felony false imprisonment (§ 236) with principal armed enhancements; and one count of evading a police officer with wanton disregard for safety (Veh. Code, § 2800.2). The trial court sentenced him to a total prison term of eight years four months. On appeal appellant maintains that the trial court erred in applying the discovery statute, and that he was denied effective assistance of counsel and due process because the court did not order the district attorney to give defense counsel its notes and records on prospective jurors who had served on previous juries. We affirm the judgment.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. FACTS
In February 2008, appellant and codefendant Lawrence Cordova robbed Zakarya Alghiathi at gunpoint inside the third floor landing of the Daly City apartment complex where Alghiathi resided. While holding Alghiathi at gunpoint, they also held up and robbed Ponciano Navales. Appellant then entered Navales’s apartment where he stole purses, two gaming systems, a money clip and a cell phone, while in the presence of Navales’s sons.
Appellant and Cordova left the scene of the robberies in a vehicle driven by appellant and shortly thereafter attempted to outrun law enforcement officers who were in pursuit. During pursuit appellant’s front passenger tire blew out, and his vehicle jumped a median and ran through two stop signs. Appellant drove into a pursuing sheriff’s vehicle twice before his vehicle stopped. He then fled the vehicle and Cordova was taken into custody.
After fleeing, appellant entered the home of Tully Mansfield through a second story window. He asked that Mansfield help him hide, and Mansfield led him to the home’s garage. Mansfield locked appellant in the garage and Mansfield’s wife signaled to police searching the area to come to the house. Appellant was apprehended.
Before jury voir dire, defense counsel asked the court to direct the prosecutor to provide the defense with all information his office had with respect to each of the prospective jurors. The trial court determined that the district attorney’s office had a duty to turn over whatever public records it had regarding individual jurors, but that notes made by prosecutors regarding former jurors was work product and was not discoverable. This appeal followed.
II. DISCUSSION
A. Work Product Protection
Appellant first asserts that the trial court erred in denying his discovery request. Specifically, he contends that information regarding juror voting records is not work product and is therefore discoverable.
The California Supreme Court in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 381, has explained that: “Because there is no constitutional basis for a work product privilege, any protection in California of the work product of an attorney must be based on state common or statutory law.” Proposition 115 codifies the work product doctrine as applied to criminal cases, and section 1054.6 now “ ‘ “expressly limits the definition of ‘work product’ in criminal cases to ‘core’ work product, that is, any writing reflecting ‘an attorney’s impressions, conclusions, opinions, or legal research or theories.’ ” ’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 355, italics omitted; Garcia v. Superior Court (2007) 42 Cal.4th 63, 68, fn. 2.)
1. Standard of Review
A trial court’s ruling on discovery is subject to review for abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d 932, 979.) We will not disturb an exercise of discretion, “unless it appears that there has been a miscarriage of justice.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Pursuant to article VI, section 13 of the California Constitution and the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836, a “miscarriage of justice” should be declared only if, after examining the entire cause including the evidence, it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred.
2. Appellant’s Discovery Request at Trial
At trial, appellant’s counsel requested that the district attorney provide him with the prosecution’s “record with respect to juror performance in prior cases. Essentially, that’s the trial attorney’s notes or comments with respect to the jurors that they may have had in previous cases.” In his request, counsel acknowledged that such information was work product, but maintained that “the defense right to a fair trial outweighs the work product issue....” The trial court determined that the information constituted work product, and denied appellant’s request. We agree. Appellant’s request at trial was aimed at the notes and commentary of the district attorney’s office. Such information falls directly within the scope of “core” work product and is therefore undiscoverable under section 1054.6.
3. Appellant’s Discovery Request on Appeal
On appeal, appellant recharacterizes his discovery request. Specifically, he refers to a “juror list” concerning how jurors voted in recent cases. He now claims that it is the voting information, and “not the individual prosecutor’s impressions of the jurors, ” that is important. Appellant contends that information on the juror list concerning how jurors voted in recent cases is “information that could be observed by anyone in a courtroom at the time a verdict is rendered, ” and therefore it is not work product; accordingly, the trial court abused its discretion in failing to order its discovery.
Prior to the enactment of section 1054.6, the California Supreme Court announced a rule giving trial judges discretionary authority to permit the defense access to jury records and reports of investigations available to the prosecution. (People v. Murtishaw (1981) 29 Cal.3d 733, 765-767, disapproved on other grounds in People v. Boyd (1985) 38 Cal.3d 762, 772-773.) The Murtishaw court held it was not error to deny the defendant’s motion for discovery of the prosecution’s jury records. However, it further held that in future cases, a trial judge would have discretion to permit a defendant to inspect prosecution jury records and investigations, if the defendant lacked the funds to investigate prospective jurors himself. (Ibid.) In People v. Johnson (1989) 47 Cal.3d 1194, the court declined to decide whether a defendant was improperly precluded from questioning jurors about the results reached in their prior jury service, holding that any error in preventing such questioning was harmless. (Id. at p. 1225.) Finally, in People v. Morris (1991) 53 Cal.3d 152 (Morris) (disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), our state’s high court concluded that “[e]ven assuming the trial court abused its discretion in failing to order discovery of arrest records and prior jury votes from prosecution records, defendant fails to demonstrate prejudice.” (Id. at p. 180.) Because the court resolved the issue based on harmless error, it declined to consider the effect, if any, of the work product doctrine on the materials prepared as part of the prosecutor’s jury book. (Id. at p. 180, fn. 2.)
Morris is applicable here. Appellant has not demonstrated that his defense was impaired because he lacked information in the hands of the prosecutor on how jurors voted in previous cases. As the court in Murtishaw observed, “in any individual case it is entirely speculative whether denial of access caused any significant harm to the defense. Consequently, under the test of prejudice established in the California Constitution (art. VI, § 13) and People v. Watson [(1956)] 46 Cal.2d 818, 836, the denial of access is not reversible error.” (People v. Murtishaw, supra, 29 Cal.3d at p. 767, italics omitted.)
It is clear appellant’s request at trial for the prosecutor’s notes and comments regarding potential jurors falls within section 1054.6. Moreover, as discussed above, even if the statute were not applicable, appellant fails to demonstrate any prejudice due to lack of access to the district attorney’s information on juror voting records.
B. Effective Assistance of Counsel
Appellant also contends that the district attorney’s possession of the voting records of prospective jurors created an “extreme disparity, ” leaving him so disadvantaged in the jury selection process that he was denied the effective assistance of his counsel. He maintains that “[a] defense attorney who engages in jury selection with a prosecutor who is in possession of such superior knowledge as that contained in the juror lists cannot be an effective advocate, simply because he is hobbled by what he does not know. He therefore is unable to render truly effective assistance because he cannot make decisions that are as informed as those of the prosecutor.”
We are not persuaded. While the jury voir dire is not part of the record here, we take judicial notice of the fact that jurors are routinely asked if they had previously served on a jury and if so, whether that jury reached a verdict. Additionally, as explained by the trial court, while there is no public defender’s office in San Mateo County, attorneys on the private defender panel “have the ability to e-mail each other information-or distribute information about jurors, as well, ” such that it is unlikely the prosecutors “have all that much of an advantage.” Moreover, appellant cannot demonstrate that a juror’s voting history is dispositive to how he or she will vote in a different case, with different facts and circumstances. As the Ninth Circuit stated in Hamer v. United States (9th Cir. 1958) 259 F.2d 274, “[m]any an experienced trial lawyer will insist that knowing how a juror votes on one case will not give the slightest indication how he or she would vote on another, even if it is the same kind of case. If the facts differ, it is a different case, and different pressures, feelings, and sympathies come into being.” (Id. at p. 280.) Additionally, the Izazaga court noted that “the Supreme Court has never struck down a discovery scheme as violative of the right to effective assistance of counsel.” (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 379.) Accordingly, appellant fails to establish that he lacked effective assistance of counsel, or that he suffered any prejudice due to lack of access to the prosecutor’s juror records.
C. No Structural Defect
Appellant also contends that a defendant’s rights to due process, a fair trial and effective representation are so severely infringed when the prosecution alone has access to juror voting history that a failure to order production of the voting records should be deemed a structural defect, meriting reversal per se, such that no showing of prejudice should be required. An error held to be a structural defect is one which affects the framework within which the trial proceeds, and is not merely an error in the trial process itself. (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) “Whether an error, even one of constitutional dimensions, is considered reversible per se or one to which harmless error may be applied is dependent upon whether the error is a ‘structural defect’ which affects the entire proceeding, or a ‘trial error’.” (People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1027; see People v. Cahill (1993) 5 Cal.4th 478, 487.)
In Fulminante, the United States Supreme Court held the following trial mechanisms are structural defects and therefore defy analysis by harmless error standards: denial of counsel; denial of an impartial judge; denial of the right of self-representation; denial of the right to a public trial; denial of the right to trial by a jury by the giving of a defective reasonable doubt instruction. (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310.) The court in Fulminante went on to indicate numerous United States Supreme Court decisions that have applied the federal constitutional harmless error rule in a variety of contexts, including violations of the Fourth, Fifth and Sixth Amendments, ultimately holding that the admission of an involuntary confession is not the type of error which “ ‘transcends the criminal process’ ” such that it can be classified as a structural defect, and harmless error analysis is appropriate. (Arizona v. Fulminante, supra, 499 U.S. at pp. 306-307, 311-312; People v. Rodriguez, supra, 50 Cal.App.4th at p. 1027.)
In the present case, the trial court’s failure to order the prosecutor to disclose its information on the voting history of prospective jurors does not amount to a structural defect such that, regardless of the nature or strength of the evidence introduced at trial, reversal per se is merited. First, as we have discussed, denial of discovery complained of here was not error. Second, the lower court’s discovery ruling was not such that the entire conduct of the trial from beginning to end was obviously affected by appellant’s lack of juror voting records during voir dire. The trial court’s ruling did not impair his ability to voir dire all prospective jurors to ensure that the jurors would be fair and impartial, nor did the ruling prohibit appellant from asking prospective jurors questions about any of his concerns, including prior jury service. Additionally, a juror’s prior voting history is not dispositive to how he or she might vote in a new case with new facts and circumstances.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.