P.v . Hernandez

Filed 10/15/08 P.v . Hernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Affirmed.

Ava R. Stralla, 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, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

Defendant Jorge Hernandez was charged by information in count 2 with conspiracy to commit the murder of Garrett Warren (Pen. Code,  182, subd. (a)(1))[1]and in counts 3 and 4 with the willful, deliberate, and premeditated attempted murders of Garrett Warren and Joanne Warren ( 187, 664, subd. (a)). The information also alleged as to counts 2 to 4 that a principal was armed with a firearm ( 12022, subd. (a)(1)); as to counts 2 and 3 that defendant personally and intentionally discharged a firearm causing great bodily injury to Garrett Warren ( 12022.53, subd. (d)); and as to counts 2 to 4 that defendant personally and intentionally discharged a firearm ( 12022.53, subd. (c)).[2]

The jury returned guilty verdicts of conspiracy as charged in count 2; the willful, deliberate, and premeditated attempted murder of Garrett Warren as charged in count 3; and the attempted murder of Joanne Warren as charged in count 4. As to counts 2 and 3, the jury found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)). As to count 4, the jury found true the allegation that defendant personally and intentionally discharged a firearm ( 12022.53, subd. (c)).[3]

Defendant was sentenced to 77 years to life. As to count 2, a base term of 25 years to life was imposed plus 25 years to life pursuant to section 12022.53, subdivision (d). As to count 4, the mid-term of 7 years was imposed plus 20 years pursuant to section 12022.53, subdivision (c). As to count 3, a sentence of life with the possibility of parole plus 25 years to life pursuant to section 12022.53, subdivision (d), was imposed but stayed pursuant to section 654.

On appeal, defendant claims the trial court erred in not allowing inquiry into an allegation of juror misconduct relating to a statement, following closing argument, made by a juror to defendants wife and the gift of a crucifix. We disagree and affirm the judgment.

FACTS

A. Prosecution Evidence

1. Introduction

Garrett Warren and Claudia Haro[4]had a contentious marriage. They were married on March 25, 1998, had a daughter on December 17, 1998 and, on July 13, 1999, Garrett filed for divorce. Claudia made numerous false allegations against Garrett including that he was an alcoholic, drug addict, womanizer, homosexual, and a child molester.

Following the acrimonious divorce and custody dispute, Claudia contacted her brother, Manuel, about the problems she was having with Garrett. Her brother contacted Miguel Quiroz (Quiroz), whom he had known since 1996 or 1997, as they were both drug dealers.[5] Manuel approached Quiroz to find a hit man. Defendant said that he would make the hit for $10,000 or $15,000. Eventually, defendant and Claudia, through the intermediaries of Quiroz and Manuel, came to an agreement on the price of $10,000 for defendant to kill Garrett.

2. The Shooting

On May 20, 2000, Garrett was shot at his home in Westlake Village. At about 8:15 p.m., his doorbell rang several times and someone also knocked on the door. Garrett looked through the peephole and saw defendant standing there.[6] He asked, Can I help you? There was no response from defendant. Finally, Garrett opened the door slightly and again asked, Can I help you? Defendant asked Garrett if the silver Volvo in the driveway belonged to him.[7] Garrett indicated it was his silver Volvo and defendant kept saying, Are you sure thats your silver Volvo . . . ? Garrett opened the door to see if defendant had hit his car. Garrett looked out and saw a car in the street in front of the house. It was a black car which he did not recognize.

Defendant, holding the gun in his right hand, shot Garrett in his chest and then in his neck. As he started going back into the house, Garrett was shot a third time, this time in his left hip. Garrett fell to the floor and defendant entered the house, stood over Garrett and shot him in the head. The bullet entered Garretts right eye and came out his left ear. Garrett lost his right eye as a result of the shooting. He has a prosthetic right eye, and his face has been rebuilt with metal.

Garretts mother, Joanne, was in the house at the time of the shooting. She heard the gunshots and ran down the hall to find her son on the floor bleeding. Garrett said, Mom, I have been shot. Joanne saw defendant standing in the doorway.[8] Defendant looked at Joanne and raised his gun, taking aim at her. She ducked into a corner and heard footsteps coming toward her. She heard two gunshots and the sound of something going over her head. She saw defendant coming towards her, and they looked at each other. Defendant turned around and headed out the door. Joanne slammed the door and called 911.

3. Ballistics

Los Angeles County Deputy Sheriff Dale Falicon processed the crime scene. He noted two bullet holes in the wall on the right side of the doorway, a bullet piece on the carpeting adjacent to a hole, and damage to the wall.

Criminalist Manuel Munoz (Munoz) examined the bullets recovered from the shooting. Munoz concluded that the bullets were .32 caliber. According to Munoz, only three manufacturers make a firearm with the same general rifling characteristics he found on the bullets; they are Smith & Wesson, Taurus and Horton & Richardson. The only Taurus model chambered for this caliber bullet is a rare Model 731.

Defendants father-in-law, Edward Lopez (Lopez), collected guns, including a .32 caliber Taurus Model 731. Lopez testified that he sold the gun to an individual at the Orange County Gun Show around 2003. Although Lopez claimed that he has a personal practice of documenting his gun sales, he testified that no documentation was made for this sale.

4. Second Attempted Hit

After the shooting, Manuel gave Quiroz an envelope with $10,000 in cash for defendant. Manuel later called Quiroz and told him that his sister said the victim had survived.

Sometime later, Manuel approached Quiroz about finishing the job because his sister wanted it finished. Manuel was arrested, so Claudia continued the discussions with Quiroz about finishing the job. Claudia mailed Quiroz an envelope with the address, directions, and a photograph of the intended victim. Quiroz took the envelope and placed it under the spare tire in the trunk of his Mercedes and forgot about it. He asked Claudia to send the set of instructions again. She inadvertently sent them to Richard Lasswell, a friend of Quiroz, who eventually gave them to Quiroz. At one point, Claudia personally took a third set of instructions to Quiroz.

On March 14, 2002, Quiroz was arrested. The police searched his Mercedes and found the instructions from Claudia that Quiroz had left in the trunk.

5. Initial Identification

Garrett and Joanne were not able to identify the shooter from photographic six-packs shown weeks after the assault. On April 11, 2002, Garrett selected a photograph of Quiroz from a six-pack and stated: Looks like the individual, although skinnier.

On November 25, 2003, Garrett attended a live lineup and selected number five, Quiroz. He wrote, He has lost weight in his neck and now has gray hair. Just prior to the live lineup, Garrett had a conversation with Claudia and she tried to convince him that the person he identified was not the person who shot him.

On December 22, 2003, Garrett attended the preliminary hearing for Quiroz, at which time he identified Quiroz as the shooter.

Sometime after the preliminary hearing, Claudia showed Garrett photographs of himself with Quiroz, at the home of actor Joe Pesci, Claudias first ex-husband. The photographs were taken about two months after the shooting. Garrett was at the party to pick up his daughter.

On January 2, 2004, Garrett viewed another photographic six-pack and indicated that photograph two resembled the shooter because he had a thick neck, hair, and a heavy-set face. Defendant was in photograph one.

6. Quirozs Cooperation

Quiroz eventually agreed to cooperate with the authorities. On March 22, 2004, Quiroz stated in a written statement that Manuel approached him about getting a hit man.

On June 12, 2004, Quiroz secretly recorded a conversation he had with defendant. During the conversation, Quiroz told defendant that the police had obtained the photographs that had been hidden in the trunk of his car and the police had fingerprints and DNA from the papers. Defendant said the paper he was given was destroyed and didnt get back to Quiroz. Defendant also made other incriminating statements, including the following when discussing that the victim had not died: I apologize dude, Im not a good shot. Defendant also told Quiroz to just get the guns or whatever and Ill get . . . well, well finish it off if thats what you need.

7. Subsequent Identification

In January 2006, at the time initially scheduled for defendants preliminary hearing, both Garrett and Joanne recognized defendant as the shooter. Garrett told the prosecutor about his earlier misidentification. At the February 16, 2006 preliminary hearing, Garrett and Joanne identified defendant as the shooter.

At trial, Garrett was certain defendant was the shooter. Joanne was 100 percent certain that defendant was the person standing over her son with a gun and who pointed the gun at her. On a scale of one to ten, she rated the certainty of her identification of defendant as a ten.

On May 20, 2000, Garrett described the shooter as having no accent, five feet nine or ten inches tall, real stocky, about 190 pounds, and possibly Italian or Israeli. The shooter also had short dark hair and a goatee. On June 29, 2005, when defendant was arrested, he had a mustache and a goatee and short cropped hair. Defendant is approximately five feet, eight or nine inches tall, and weighs between 180 and 190 pounds.

Quiroz is five feet, four inches tall and weighs about 200 pounds; on May 20, 2000, he weighed about 185 pounds. Unlike the shooter, he is left-handed.

8. Vehicle

On the night of the shooting, Garretts neighbor, John McComb (McComb), heard five or six gunshots coming from the direction of Garretts residence. About 15 to 20 seconds after the gunfire, McComb saw a car that had been parked near Garretts home leave at a very rapid rate of speed. The car looked like a Ford Taurus or Mercury Sable.

Lopez, defendants father-in-law, testified that on December 18, 1999, he had leased a black Ford Taurus for his daughters use. Defendant and his wife both drove the Taurus before it was repossessed in 2004.

Quiroz had a black Honda which he sold to his brother prior to June 17, 1999. Quiroz never owned a black Taurus or Mercury Sable. In May 2000, Quiroz drove a green Chevrolet truck and his wife drove a tan Mercedes.

9. Quirozs Alibi

Various people provided Quiroz an alibi for the night of May 20, 2000. Quiroz operated a restaurant and bar located in Rancho Cucamonga, about 70 to 75 miles from Westlake Village. Barbara Little, who had worked at the restaurant for about seven years, was relieved by Quiroz between 4:00 and 4:30 p.m. She left the restaurant between 5:00 and 6:00 p.m. and Quiroz was still there. Other bar patrons testified that Quiroz was in the bar that night between 5:30 and 9:00 p.m. and was never out of their sight for more than fifteen minutes.

B. Defense Evidence

The only defense witness was Edward Geiselman, Professor of Psychology. He testified as an expert in the area of eyewitness identification. He testified as to problems with eyewitness identification, including that under extreme levels of stress, perception and memory are impaired. He did opine that in his study of actual crimes in Miami, Florida, 85 percent of the statements made by witnesses were accurate.

DISCUSSION

Defendant contends that the trial court erred in denying his request for jurors personal identifying information. We disagree.

A. Introduction

On November 13, 2006, the jurors returned their verdicts. On January 22, 2007, defendant filed a motion for a new trial on the ground one of the jurors approached defendants wife in the womens restroom and handed her a religious symbol. The juror allegedly told her to give the symbol to defendants mother and sister and said that defendants mother should go to a church in Mexico where miracles were known to have happened. This conversation occurred the day after closing arguments, during jury deliberations.

Defendants aunt, Rosaura Melendez, also provided a declaration. She indicated that on the fourth day of trial, the same juror who approached defendants wife approached her while she was in the womens restroom. She stated that the juror removed her badge and said she couldnt talk to them, but said to pray to the Virgin de Guadalupe and the Virgin San Juan, they do a lot of miracles.

In response to the motion, the prosecutor filed a written opposition, explaining that, under People v. Box (2000) 23 Cal.4th 1153, 1222, an evidentiary hearing is only required where the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. The prosecutor also indicated that the declarations were only brought forward after an adverse verdict and if anything, the juror was expressing sympathy for the defendant and not the prosecution.

Defendant filed a reply to the prosecutors opposition seeking release of the jurors name, address or telephone number to determine the mind set of the juror, since the jury did not want to discuss the case with either counsel after the verdicts were read. Defendant indicated that he was seeking information about whether the jurys verdict was improperly influenced and was not attempting to determine the mental processes of any juror.

At the hearing seeking a new trial, defendants counsel argued that the juror had violated the admonition against stating how they would vote and violated the admonition not to discuss the case until all the evidence was presented. Defendants counsel requested that the court continue the sentencing, order release of the jurors personal information, allow counsels office an opportunity to contact the juror or, in the alternative, order an evidentiary hearing to question the juror.

The prosecutor countered that Box requires the defense to come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. The prosecutor also argued that the facts in Box were more troubling than the instant case. In Box, he explained, a court clerk overheard two jurors discussing a newspaper article about the case and about the sentencing implications of the case. In the instant case, a juror allegedly made statements sympathetic to the defendants family.

The trial court commented that defendants family was present in the courtroom when he admonished the jurors not to speak to people about the case. The trial court felt that if the allegations were true, defendants counsel should have been notified immediately. The court also found it puzzling that defendants counsel had been notified of the allegations two days after the verdict but waited two months before notifying the court. Also, the court noted that the words spoken were not prejudicial at all to the defense, but rather sympathetic to the defense. The court found that there was not sufficient cause to release the name and telephone number of this juror on the facts that have been presented in these affidavits. It denied the motion for a new trial.

B. Failure to release jurors personal information, deny evidentiary hearing, and new trial motion.

Code of Civil Procedure sections 206 and 237 permit a defendant to obtain sealed juror information upon a showing that such information is necessary for a new trial motion or other lawful purpose.[9] (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087.) A motion for disclosure of juror information must be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors personal identifying information. The court shall set the matter for hearing if the [motion] and supporting declaration establish a prima facie showing of good cause . . . . (Code Civ. Proc.,  237, subd. (b).) The misconduct alleged 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.) We review the trial courts denial of a disclosure motion for abuse of discretion. (Cf. People v. Jones (1998) 17 Cal.4th 279, 317.)

In the present case, we find no abuse of discretion in denying defendants request to obtain the jurors personal information. First, the alleged comments were not brought to the courts attention until two months after the adverse verdict. This suggested that if the comments were made and conveyed to defendant or his counsel, the defense may have failed to bring the matter to the attention of the trial court in hopes that the indicated juror in question would vote for acquittal.

Second, to the extent the alleged comments revealed the jurors mental processes, the evidence would be inadmissible under Evidence Code section 1150, which precludes consideration of evidence demonstrating the effects of statements or events on the mental processes of a juror. The alleged comments did not extend to admissible 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. (Evid. Code,  1150, subd. (a).) The alleged comments by the juror about prayer did not suggest that the jurors discussed the case among themselves prior to deliberations or that the comments had any bearing on the evidence that the jury considered during deliberations.

The statements allegedly made, even if a violation of the trial courts admonition not to discuss any subject connected with the trial, did not warrant an evidentiary hearing. Whether the juror made such statements was not a material issue in the case, for the statements had no bearing on the matter pending before the jury, that is, defendants guilt or innocence. (People v. Avila (2006) 38 Cal.4th 491, 605, citing In re Hamilton (1999) 20 Cal.4th 273, 306.) The trial court therefore did not abuse its discretion in its refusal to release jurors personal information, conduct an evidentiary hearing, or grant the motion for a new trial.

Moreover, there is no evidence of prejudice to the defendant by any alleged misconduct. The alleged comments by the juror to defendants wife and aunt were not prejudicial. If anything, they were sympathetic.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.

We concur:

WOODS, Acting P. J.

ZELON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] It appears that the information originally charged these three counts as counts 1 to 3, but were later renumbered as counts 2 to 4 to conform to the criminal computer system. For jury trial purposes, the counts were numbered consecutively in the verdict forms as counts 1, 2, and 3.

[3] On the motion of the prosecution, the section 12022, subdivision (a)(1), enhancements were dismissed as to all three counts.

[4] Garrett Warren, Joanne Warren, Claudia Haro and Manuel Haro will be referred to by their first names to avoid confusion, with no disrespect intended. (Nairne v. Jessop-Humblet (2002) 101 Cal.App.4th 1124, 1126, fn. 1.)

[5] Based on his involvement in the case, Quiroz entered a plea of being an accessory after the fact to the attempted murder of Garrett and received five years probation, including a suspended prison sentence of three years. He agreed to testify and was given use immunity, which he would lose if the court found he lied.

[6] At trial, Garrett identified defendant as the shooter. When asked how certain he was, Garrett said he would bet his left eye on it.

[7] Garrett had the car for a month or two. Claudia had seen him in that car when he picked up his daughter that afternoon as well as on an earlier occasion. She even commented on the car on both occasions.

[8] At trial, Joanne identified defendant as the shooter.

[9] Code of Civil Procedure section 206, subdivision (g), provides that [p]ursuant to Section 237, a defendant or defendants counsel may, following the recording of a jurys verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the courts records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. Section 237, subdivision (b), of the Code of Civil Procedure provides that such a petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors personal identifying information.