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People v. Orozco

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Mar 15, 2017
D070705 (Cal. Ct. App. Mar. 15, 2017)

Opinion

D070705

03-15-2017

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR OROZCO et al., Defendants and Appellants.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Arthur Orozco. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant, Jeffrey Batson. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FV11301531) APPEAL from judgments of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Arthur Orozco. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant, Jeffrey Batson. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Arthur Orozco and Jeffrey Batson of the second degree murder of Roger Miller (Pen. Code, § 187, subd. (a)), and found true allegations that in the course of committing the murder a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). Orozco and Batson appealed, and this court vacated the judgment and remanded the matter for the trial court to set a briefing schedule allowing for an investigation into possible juror misconduct, a motion for release of juror information if necessary and proper, and a potential new trial motion. (People v. Orozco, et al. (Dec. 17, 2015, D068491) [nonpub. opn.].) Thereafter, Orozco's and Batson's attorneys petitioned for the release of the names and addresses of all jurors and their contact information, including for juror No. 8, who they claimed was associated with a woman assertedly seen interacting with the victim's family during and after trial. Following a hearing on the matter, the trial court denied the petitions and ordered the judgments reinstated, with Batson's judgment modified to strike a $41 fine.

We take judicial notice of this court's prior nonpublished appellate opinion, People v. Orozco, supra, D068491, which is attached as exhibit A to Orozco's opening brief, and the appellate record in the matter. (Evid. Code, §§ 452, subd. (d)(1) [judicial notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); People v. Morris (2015) 242 Cal.App.4th 94, 97, fn. 2.)

On appeal, appellants contend the court abused its discretion in denying their petitions because the letters they submitted from two of Orozco's family members demonstrated a sufficient showing of good cause to support a reasonable belief that jury misconduct had occurred and that further investigation was necessary to provide the court adequate information to rule on a new trial motion. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, the victim, Roger Miller, chased his then girlfriend and her children with a baseball bat, causing Orozco, Batson, and two other individuals to enter into a plan to confront Miller in order to scare him and beat him up. During the confrontation, Batson shot Miller with a shotgun, killing him.

During a jury instruction conference, counsel for another codefendant observed that one of the male jurors had a wife, girlfriend or female friend accompanying him who was routinely sitting in the gallery. He asked the court to supplement a jury instruction concerning discussing the case, but the court declined to do so, pointing out that its previous instructions covered the subject. On the day set for the defendants' sentencing, Orozco's counsel Paul Henderson submitted handwritten letters from two of Orozco's family members describing their observations of the juror's and the woman's contacts with Miller's family. Both attorney Henderson and Batson's counsel sought to continue the sentencing hearing so as to conduct a juror misconduct investigation and bring a motion to reveal information on the juror involved and the woman present in the courtroom during trial. The court denied the requests to continue the sentencing hearing, but permitted counsel to make oral motions for a new trial and denied them.

In Orozco's and Batson's first appeal, we concluded the court abused its discretion by refusing to grant their requested continuance; that the court should have given them an opportunity to investigate possible juror misconduct, but instead forced them to make an oral new trial motion without the benefit of evidence that an investigation may have revealed. (People v. Orozco, supra, D068491.) We vacated the judgments and remanded "with directions to the trial court to set a briefing schedule allowing for an investigation, motion for release of juror information, if necessary and proper, and potential new trial motion. If appellants ultimately choose not to move forward with a new trial motion or if the new trial motion is denied on the merits, the judgments shall be reinstated." (Ibid.)

Following our decision, both Orozco's counsel Paul Henderson and Batson's new attorney, Stuart O'Melveny, moved for the release of juror information, supported by their own declarations discussing attorney Henderson's receipt of the handwritten letters from Orozco's aunt and cousin, and attaching the letters as exhibits. In the letters, both relatives wrote that they observed the woman, who they presumed was the juror's wife, in court when the public defenders were engaging with the judge and the jury was outside the courtroom. Orozco's aunt wrote that she observed the woman conversing with the victim's father outside the courtroom, that the woman was "palming his back," and she was "always talking to Roger Millers [sic] family." Orozco's cousin likewise observed the woman sitting next to Miller's father and conversing with him. Both stated the woman asked others outside the courtroom questions about who was related to the defendants. According to the aunt, at a sentencing hearing in May 2014, the juror and the woman were present and seated next to Miller's family, and after the hearing the juror and the woman were standing outside the courtroom with Miller's family "talking and hugging."

Under Code of Civil Procedure section 237, Orozco's and Batson's motions were required to be supported by declarations (People v. Johnson (2015) 242 Cal.App.4th 1155, 1161), and the People did not argue below nor do they on appeal that counsel's declarations or the unsworn letters constitute hearsay or were otherwise inadmissible. Indeed, defendants were not required to introduce admissible evidence that jury misconduct actually occurred in order to make the required prima facie showing, but only that talking to the jurors is "reasonably likely" to produce admissible evidence of misconduct. (People v. Johnson (2013) 222 Cal.App.4th 486, 493.) Nor do defendants need to show they made diligent efforts to contact the jurors by other means. (Id. at pp. 495-497.) And because the prima facie showing merely triggers an evidentiary hearing at which any necessary credibility determinations may be made, in deciding whether Orozco and Batson made out a prima facie showing of good cause, the court must credit the evidence submitted on the motion. (People v. Johnson, 242 Cal.App.4th at pp. 1163-1164.) --------

Henderson argued based on the letters that the juror, who he identified as Juror No. 8, violated his obligations to remain impartial and not have contact with anyone associated with the case or anyone associated with them; that his wife chose to be associated and he did not prevent or disclose the association. He argued the information raised an inference that the woman was sympathetic to the victim's family at the time the juror was hearing and deliberating on his client's case. O'Melveny similarly argued the information demonstrated good cause for the release of the names and addresses of the jurors who presided over the case, pointing out Orozco's relatives observed conduct by a nonjuror on display in front of a sitting juror with whom she had a relationship, and the nonjuror "displayed emotion, favoritism, and affection to the victim's family" that was observed by the sitting juror. He maintained that information that the juror and nonjuror were seen together comforting the victim's father, talking to him and hugging him after the verdict created an appearance of impropriety and "show[ed] an outside influence (the non-juror) having an influence on a sitting juror." He argued that the information showed an outside contact influenced a sitting juror before the jury commenced deliberations and before the jury made its verdict, requiring the court to order disclosure to protect his client's constitutional rights to an impartial jury and a fair trial. Both Henderson and O'Melveny submitted their own declarations in support of the petitions, attesting to Henderson's receipt of the handwritten statements after the verdict but before sentencing.

The People responded that there was only speculation that Juror No. 8 and the woman actually discussed the case at all during the trial, and there was no evidence that any improper communication took place between them. They asserted that the only time Juror No. 8 was reputed to have done anything emotional was at the time of sentencing after the jury had been dismissed and was no longer under a separation admonition. The People stated that if the court believed there was a basis for investigating a violation of its admonition, that warranted only disclosure of information about Juror No. 8.

At a hearing on the matter, the prosecutor did not concede that Orozco's relatives' statements were true, but took the position that assuming they were, they did not demonstrate any sort of communication or emotional relationship between the juror and the victim's family, and did not make out a prima facie case of juror misconduct. He argued the relatives' statements did not rise to the level of good cause to disclose the juror information. The court asked the prosecutor if he wished to forego making a hearsay objection to the statements and proceed as if their authors would testify in a manner consistent with what was in the declaration. The prosecutor responded: "I would object to the foundation of some of the things contained within the statements. And that's perhaps the extent of the objections that I would offer as to the statements." He later clarified that his foundation objection went to the fact of the woman being Juror No. 8's wife.

The court found there was no basis to infer any misconduct. It stated the defense had only shown there was an opportunity for communication or that there might have been improper communication, and ruled there was "absolutely no evidence whatsoever before this court that there was an improper communication . . . ." The court concluded: "So I find that there's no good cause presented to this court justifying jumping to the conclusion that because someone had the opportunities to communicate with another person that was in the audience that was not on the jury, that that communication took place, and I'm not going to infer that it did. [¶] So your motion to go farther on this subject for further juror identifying information and your motion for a new trial, if there is such, based upon those grounds, is denied." It ordered the judgments reinstated as stated above.

Orozco and Batson filed these appeals.

DISCUSSION

I. Legal Principles and Standard of Review

Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to personal juror identifying information—their names, addresses and telephone numbers—when the sealed information is "necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g); People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) The petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b); McNally, at p. 1430.) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (McNally, at p. 1430, citing People v. Avila (2006) 38 Cal.4th 491, 604 & Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.)

If the court determines the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing unless the record establishes a compelling interest against disclosure. (Code Civ. Proc., § 237, subd. (b).) If the court sets a hearing, Code of Civil Procedure section 237 allows jurors to protest the petition's granting, and "[a]fter the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court . . . the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subds. (c), (d).)

To demonstrate good cause, a defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones (1998) 17 Cal.4th 279, 317; see People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) And, the alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) Requests for the release of confidential juror records " 'should not be used as a "fishing expedition" to search for possible misconduct . . . .' " (People v. Avila, supra, 38 Cal.4th at p. 604; People v. McNally, supra, 236 Cal.App.4th at p. 1431.)

The court has broad discretion in ruling on a motion for personal juror identifying information (People v. Avila, supra, 38 Cal.4th at p. 604), and we review the court's order denying the request for abuse of that discretion. (People v. Jones, supra, 17 Cal.4th at p. 317; People v. Cook, supra, 236 Cal.App.4th at p. 346; see Townsel v. Superior Court, supra, 20 Cal.4th at p. 1096.) This court must uphold the order unless the trial court's ruling was arbitrary or capricious. (See People v. Thompson (2016) 1 Cal.5th 1043, 1126.)

II. The Trial Court Did Not Abuse Its Discretion in Denying Defendants' Requests for

Juror Identifying Information

Both Orozco and Batson concede that declarations for release of juror identifying information raising only a speculative assertion of misconduct are not sufficient. They maintain, however, that the letters presented by their counsel constitute "concrete," nonspeculative evidence of conduct by Juror No. 8—his interaction and relationship with a nonjuror who showed a strong bias in favor of the victim's family throughout the trial, and his hugging members of the victim's family after the sentencing—that "strongly suggested" he was biased in the victim's favor and demonstrates good cause to support a reasonable belief that misconduct occurred, requiring further investigation. Batson further argues that misconduct occurs when a juror receives evidence from sources other than the court; that the danger presented is that "the non-juror may convey prejudicial information that is not part of the evidence presented in court to a sitting juror." Both defendants distinguish cases in which the appellate court upheld a trial court's denial of jury information requests (People v. Wilson, supra, 43 Cal.App.4th 839, People v. Jefflo, supra, 63 Cal.App.4th 1314) and compare this case to People v. Granish (1996) 41 Cal.App.4th 1117 (Granish).

We conclude the comparison to Granish is unavailing. There, five of the defendant's relatives and friends submitted affidavits stating they saw the husband of one of the jurors in the courtroom during trial, including during periods when the jurors were excused, and standing near two witnesses in the hallway while the witnesses were discussing papers in a briefcase. (Granish, supra, 41 Cal.App.4th at p. 1122.) One of the witnesses took the briefcase with him to the stand when he testified and referred to some of the papers inside. (Id. at pp. 1122-1123.) The relatives also asserted that they saw the husband leave the courtroom on one occasion with his juror wife, and overheard her ask him why the prosecutor was trying to confuse things. (Id. at p. 1123.) The relatives saw the husband talking to unspecified jurors in the hallway at least twice, and to the victim's father on one occasion. (Ibid.) Defense counsel moved for disclosure of the names, addresses and telephone numbers of all of the jurors to determine whether any of them committed misconduct; the trial court ordered disclosure as to the juror in question, but denied the request as to the remaining jurors. (Ibid.) Counsel then interviewed the juror, who denied talking to her husband about the case at any time during trial, but never attempted to interview the husband. (Ibid.)

On appeal, the defendant claimed the court was required to give him the personal identifying information of all of the jurors. (Granish, supra, 41 Cal.App.4th at p. 1122.) The Court of Appeal rejected the contention, pointing out that he was "allowed access to the key juror (and nonjuror) involved in the alleged misconduct" but that juror unequivocally denied it and he failed to interview the husband, interview other percipient witnesses, or make a sufficient showing there was a genuine claim of misconduct so as to justify releasing the names, addresses and telephone numbers of the remaining jurors. (Ibid.) It concluded his claim of jury misconduct was wholly speculative: "The most defendant's evidence showed was that [the juror in question] may have made one isolated remark to her husband that she found the prosecutor's presentation confusing. There was no evidence they discussed the case further at any time; in fact, [the juror] denied even this isolated remark. [The husband], a member of the public, attended the trial. He was not a member of the jury, and his presence had no bearing on a claim of jury misconduct. [The husband] may have asked where the jurors would be entering and exiting the courtroom. This clearly was not misconduct. He stood in a public hallway where other persons (witnesses) may have discussed some undisclosed papers. There was no evidence [the husband] talked to [his juror wife] about the case, no evidence [he] talked to other jurors about the case, no evidence [he] overheard witnesses talking about the case (and none that he discussed whatever he heard—if anything—with anyone)." (Id. at pp. 1131-1132.)

Granish does not address the propriety of the trial court's order releasing the personal information of the single juror; at issue was the defendant's contention that the court erred by denying release of all of the jurors identifying information. The Court of Appeal thus had no occasion to address whether the defendant had in fact made a prima facie case showing of good cause to release that one juror's information, and we will not attribute a holding not considered in the case. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 ["it is axiomatic that cases are not authority for propositions not considered"]; People v. Watts (2016) 2 Cal.App.5th 223, 231.) Further, the evidence in Granish showed that the juror at issue was overheard communicating about the case with her husband, demonstrating a reasonable likelihood of misconduct on which a court could elect to provide access to that juror's personal identifying information. In Jefflo, the appellate court held a trial court properly denied a request for juror identifying information even where the defendant presented evidence that a juror spoke with a defendant's girlfriend about the jury being hung, and another juror asked the prosecutor if " 'that [was] all the evidence [he] had.' " (People v. Jefflo, supra, 63 Cal.App.4th at pp. 1318-1319.) Under those circumstances, the first juror's statement simply meant the jury had not yet reached a verdict, which was not misconduct, and the second juror's statement conveyed "nothing more than that the juror might have been curious about whether evidence existed that was not presented at trial. This did not mean the evidence that was presented failed to persuade the juror, beyond a reasonable doubt, of [the defendant's] guilt." (Id. at p. 1322.)

Here, there is much less evidence suggesting misconduct than that deemed insufficient in People v. Jefflo, supra, 63 Cal.App.4th 1314. There is no evidence that during the course of trial, Juror No. 8 and the woman discussed the case or otherwise engaged in improper communications. We will not engage in speculation to infer that they did discuss it or that the woman gathered some outside information relevant to the case and communicated it to the juror. Indeed, Orozco's aunt admitted she could not say anything untoward occurred: "I don't know if the wife would talk to her husband about what she would hear when the jury wasn't present." There is no basis (apart from mere suspicion, which is insufficient) to conclude from the woman's favorable interactions with the victim's family that Juror No. 8 operated with similar bias in the victim's favor during trial proceedings. In short, we would have to engage in speculation to adopt defendants' arguments and conclude that the actions by a nonjuror associated with Juror No. 8 demonstrated that Juror No. 8 was biased or engaged in some form of misconduct. Such evidence does not provide good cause for disclosure of juror identifying information. (People v. Cook, supra, 236 Cal.App.4th at p. 346 [good cause does not exist where the allegation of jury misconduct is speculative]; People v. Wilson, supra, 43 Cal.App.4th at p. 852.) Further, neither defendant has shown that any interaction between the woman and Juror No. 8, even if suggestive of misconduct, was " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) That Juror No. 8 and the woman were seen speaking with or even hugging the victim's family members after the jury reached its verdict and was released from its duties does not suggest that the juror committed some form of misconduct during trial or during the jury's deliberations.

Under these circumstances, the trial court could well conclude Orozco and Batson were seeking to use the juror information as a fishing expedition to search for possible misconduct (People v. Avila, supra, 38 Cal.4th at p. 604); they had not made a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones, supra, 17 Cal.4th at p. 317, italics added.) Thus, it did not abuse its discretion in denying Orozco's and Batson's requests for the juror identifying information in this case, even limiting the request to Juror No. 8.

DISPOSITION

The judgments are affirmed.

O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.


Summaries of

People v. Orozco

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Mar 15, 2017
D070705 (Cal. Ct. App. Mar. 15, 2017)
Case details for

People v. Orozco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTHUR OROZCO et al., Defendants…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Mar 15, 2017

Citations

D070705 (Cal. Ct. App. Mar. 15, 2017)