P. v. Esmaeili
Filed 4/11/13 P. v. Esmaeili CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
AMIN ESMAEILI,
Defendant and Appellant.
D061266
(Super. Ct.
No. SCD225756)
APPEAL from
a judgment of the Superior Court
of
County, Melinda J. Lasater, Judge. Affirmed.
On June 27, 2011, after a six-day trial
and less than three and one-half hours of deliberation, a jury found Amin
Esmaeili guilty of assault with force likely to cause great bodily injury (Pen.
Code, § 245, subd. (a)(1))
name="_ftnref1" title="">[1] with personal infliction of
great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) (count
1); two counts of residential
burglary (§ 459, 460) (counts 2 and 4), one with a person other than
an accomplice present (§ 667.5, subd. (c)(21)) (count 2);
(§§ 664, 211, 212.5, subd. (a)) with
personal infliction of great bodily injury (§§ 1192.7, subd. (c)(8),
12022.7, subd. (a)) and personal
use of a deadly or dangerous weapon (§§ 1192.7, subd. (c)(23), 12022,
subd. (b)(1)) (count 3); and failing to comply with a peace officer's
lawful order (Veh. Code, § 2800), a misdemeanor (count 5). On December 12, the court sentenced Esmaeili
to six years in prison on count 1—the three-year middle term for assault and
three years for personal
infliction of great bodily injury, with concurrent terms on the remaining
counts. Esmaeili appeals,
contending the court abused its discretion in denying his application for
release of juror information and for further investigation of the identity of a
juror who allegedly engaged in serious misconduct. Alternatively, Esmaeili contends he received
FACTUAL BACKGROUND
At 3:45 p.m. on August 28, 2008, the victim came home and found two men in
her bedroom and bathroom. The men pushed
her, and one of them struck her with something on the head and face. The men ran outside and got in a car. The victim called the police and provided a
possible license plate number. The
license plate number immediately led the police to a Hyundai owned by Esmaeili's
brother. The Hyundai was parked outside
Esmaeili's apartment and was still warm.
Esmaeili told a police detective that on August 28, he got out of school
at 2:45; he was home alone
afterwards; and the Hyundai was parked outside all day.
The victim
suffered a gaping head wound and a deeper facial wound, both requiring sutures. At the victim's home, a police officer found
a window screen had been removed and the window was wide open. The victim and her husband discovered a
jewelry box was missing, computer equipment had been moved and items from their
closet had been placed in bags. Esmaeili
was one of two major contributors of DNA on a glove left behind in the victim's
kitchen.
On June 6, 2009, a witness saw three
young men in the yard of neighbors who were away. The young men looked around and one of them
put his hand on the neighbors' door. The
witness called the police. The police
found a car parked by the residence; Esmaeili was getting into the driver's
seat and two companions were getting into the passenger seats. The officers attempted to stop the men at gunpoint,
but Esmaeili drove away with the police in pursuit. Esmaeili stopped the car and he and his
companions ran. The police found them in
a nearby yard.
When the
neighbors returned home, they found the door and door frame had been damaged,
the garage side door had been dented, a window had been broken and a window
screen had been dented and was on the ground.
PROCEDURAL
BACKGROUND
On September 2, 2011, at a postverdict
hearing, the court granted Esmaeili's motion for substitution of counsel. By that time, Esmaeili had had at least eight
different attorneys, some appointed and some retained.
On October 14, 2011, Esmaeili's new
counsel filed an application for disclosure of the jurors' names and
addresses. Counsel's accompanying
declaration stated that Mitra Jafori, a close friend of Esmaeli's parents,
attended trial every day. According to
counsel, Jafori told him that during a lunch break, Juror No. 12 approached her
and said, "I can go to court and vote for you. I will need one thousand dollars." The declaration described Juror No. 12
"as a male with dark hair who always wore flip flops to court and drank
energy type drinks." The People
filed opposition, including a declaration stating: "per the People's notes, Juror No. 12
was not a male with dark hair who wore flip flops and drank energy
drinks." The court deferred ruling
so it could hear testimony from Jafori and Esmaeili's parents "to
determine if there was a sufficient basis to call [Juror No. 12] in."
On November
8, Jafori testified, through a Farsi-English interpreter, that she knew
Esmaeili because Esmaeili's father worked for her. She had known the family for "[a]bout
eight months." During the trial,
Jafori sometimes sat with Esmaeili's parents and sometimes sat alone. One of the jurors looked at Jafori several
times in the hallway. The juror was
"No. 12," seated in the second row.
He was a man, wearing sandals and carrying a cell phone, and "was
texting on it from time to time."
At lunchtime, just before the jury began deliberating, Jafori was with
Esmaeili and his parents at a Wendy's restaurant. After lunch, Jafori waited outside the
restaurant for the three Esmaeilis. As
Jafori "was walking this way," one of the jurors was "walking
the other way." The juror faced Jafori,
stopped her and said "hi." The
juror said, "very quickly," "If you want me to vote in your
favor, you have to give me one grand."
Jafori did not know the meaning of "one grand," and asked,
"What do you mean? What is
it?" The juror said "it's [one
thousand dollars]. If you give me a
thousand dollars, I will come to the court, and I will vote in your
favor." The juror "said it
very fast . . . and he went by." Jafori did not respond. The juror did not give Jafori his telephone
number, a place to meet him or any method of contacting him; he did not say how
she should pay him; he did not approach her again; and Jafori did not see him
again. Esmaeili and his mother saw
Jafori through the window of the restaurant.
Esmaeili's mother came out and said, "This was a juror member. What did he have to do with you? You are not
allowed to have any communication with jury members even if they approach you,
and they want to talk to you. You have
no right to talk to them." Jafori
did not tell anyone what had happened because the court had instructed everyone
not to have contact with the jurors and she was afraid she would get in
trouble. Jafori realized, when the juror
approached her, that it was wrong. When
Jafori heard the guilty verdict, she did not think that her failure to pay the
juror might have been a reason for the verdict.
A week after the verdict, Jafori told her sister what had happened, and
her sister told her to tell the public defender. Jafori spoke to someone who worked for the
public defender, and then with the public defender. A few days after Jafori spoke with the public
defender, she told Esmaeili's mother what had happened, then told Esmaeili's
father. Jafori had lived in the United
States for 11 years but had never attended a
trial before and was not familiar with the legal system.
Esmaeili's
father testified he attended the trial every day. Jafori did not talk to him about a juror
asking for $1,000 to vote in Esmaeili's favor.
Esmaeili's father found out about it two or three weeks later from his
wife. Jafori asked Esmaeili's father for
the public defender's address.
Esmaeili's
mother testified she attended the trial for two days. Five or six days after the verdict, Jafori
told her that the day they were leaving Wendy's after lunch, one of the jurors
said hello, then said if you give me money, I will vote in favor of
Esmaeili. "[F]rom far,"
Esmaeili's mother saw Jafori talking to the juror outside Wendy's for one or
two seconds. Esmaeili's mother described
the juror as a young man, maybe 22 years old, and said "I think he was in
the front row." She did not notice
whether he was wearing a juror's tag.
She did not report the matter to the court because she did not know what
they were talking about; she asked Jafori that day and Jafori said it was
nothing. Esmaeili's mother told her
husband, who had not known of it until she told him.
Following
the above testimony, defense counsel asked that the identity of "the juror
in question" be disclosed, and stated "Jafori's story from what I got
from [trial counsel] and his investigator is the same story that she told the
Court here today. It's never
wavered. It's never changed." In response, the prosecutor noted there were
"very compelling interests to keep juror information confidential"
and pointed out the several "very big leaps of logic" that Esmaeili's
argument required, including the following.
First, Jafori did not report the incident the day it happened, and there
was a conflict between her testimony and that of Esmaeili's father concerning
the manner in which she had reported the incident. Second, the juror did not contact Jafori
again, or give her any way to contact him.
Third, Jafori testified she did not believe her failure to pay caused
the guilty verdict. Fourth, when polled
individually, the jurors had said "these were [their] verdicts as
read." Finally, the prosecutor
stated that based on her notes, she did "not believe that it was juror No.
12." On rebuttal, defense counsel
argued that cultural differences and fear explained Jafori's failure to report
the juror contact immediately.
The court
found there was "sufficient basis to move forward with the further
investigation into the issue" and stated "I will bring in Juror No.
12" and appoint counsel for Juror No. 12.
The court said "I do not release juror information" and
"I'm not necessarily going to bring in all of the jurors." Defense counsel responded "I have had
very little cooperation from [trial counsel] and his office up until
yesterday" and "If I can get [defense counsel's investigator's] help
to ascertain exactly which juror, he might be able to clarify it." The court noted that Jafori "wasn't
hedging" when she said it was Juror No. 12, and the juror in question
"could have been an alternate."
The court repeated that it would bring in Juror No. 12, but would not
"bring in all of the jurors and let somebody take a look." The court said that if defense counsel had a
basis for believing the juror in question was "one of the other jurors by
number," and submitted an affidavit and gave the prosecutor a chance to
respond, the court would consider the matter.
Defense counsel agreed to this procedure.
On November
29, 2011, Juror No. 12 appeared before the court. The court appointed an attorney and directed
Juror No. 12 to speak with counsel and return to court on December 2. After Juror No. 12 left the courtroom, his
appointed counsel described him as "an older male, gray hair, very
conservative."
On December
2, 2011, Juror No. 12 appeared with appointed counsel. Also present were Esmaeili, his attorney and
the prosecutor. Defense counsel said
Juror No. 12 was not the juror in question, and counsel had been unsuccessful
in his attempts to contact Esmaeili's previous attorney. The court noted that Jafori "was very
specific" and did not waver in her testimony that Juror No. 12 was the
juror in question, although she had "a lot of opportunities." The court said it would not "bring in
all of the jurors." The court
excused Juror No. 12 and his attorney.
Esmaeili's counsel did not object, but requested a two-week continuance
so he could speak with trial counsel and try to identify the juror at
issue. The court denied the request,
stating that if Juror No. 12 was not the one, the remainder of Jafori's testimony
was called into question. Defense
counsel agreed with the court's reasoning, and said he would use the issue as a
basis for appeal rather than for a new trial motion.
DISCUSSION
"[T]rial
courts have always possessed the inherent power to protect jurors' physical
safety and privacy." (
Cal.4th 1084, 1087.) This power is
rooted in " 'strong public policies' " safeguarding the
administration of justice. (
request for disclosure of juror identifying
information . . . include[] protecting a juror's state
constitutional right to privacy; the possible deterrence of prospective jurors
from fulfilling their obligation to serve if they knew they would be subject to
postverdict intrusions into their lives; reducing incentives for jury
tampering; promoting free and open discussion among jurors in deliberations;
and protecting the finality of verdicts."
(Id. at p. 1093.) "These concerns, however, must be balanced
with the equally weighty public policy that criminal defendants are entitled to
jury verdicts untainted by prejudicial juror misconduct" (
strong competing public interest in ascertaining the truth in judicial
proceedings, including jury deliberations." (Id.
at p. 1093.) " '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.' " (Id.
at p. 1094.)
The power
to protect jurors' privacy is codified in Code of Civil Procedure sections 206
and 237. "Upon the recording of a
jury's verdict in a criminal jury proceeding, the court's record of personal
juror identifying information of trial jurors . . . shall
be sealed until further order of the
court . . . ."
(Code Civ. Proc., § 237, subd. (a)(2).) "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. . . ." (Code Civ. Proc., § 206, subd.
(g).) "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).) "[U]pon
timely motion, counsel for a convicted defendant is entitled to the list of
jurors who served in the case . . . if the defendant sets
forth a sufficient showing to support a reasonable belief that jury misconduct
occurred, that diligent efforts were made to contact the jurors through other
means, and that further investigation is necessary to provide the court with
adequate information to rule on a motion for new trial." (People
v. Rhodes (1989) 212 Cal.App.3d 541, 551-552.)
Here, there
was no abuse of discretion. (
20 Cal.4th at p. 1096.) The
court treated the accusation of juror misconduct seriously, conducted a
step-by-step investigation to determine whether the accusation was trustworthy,
clearly exercised its discretion at each step, and carefully evaluated each of
Esmaeili's requests, all the while balancing the competing interests. The court held an evidentiary hearing at
which it listened to Jafori's testimony and was able to assess her degree of
confidence in identifying Juror No. 12.
The court reasonably concluded Jafori was confident in her
identification. The court did not err in
rejecting counsel's request for a procedure akin to a lineup, an invasive
course of action for which Esmaeili cites no authority.
efforts to contact trial counsel and to bring before the court any new information
that his investigation revealed. When
Juror No. 12 appeared before the court and it was clear that he was not
the juror Jafori had described, Esmaeili's counsel properly acknowledged that
fact. At that point, the court declined
to grant a continuance so that Esmaeili's counsel could continue to contact
trial counsel,
title="">[3]
noting that Jafori had ample opportunity to alter her identification of Juror
No. 12 but did not do so. The court
reasonably concluded that this misidentification undermined Jafori's entire
testimony and appropriately declined to do anything more in light of her lack
of credibility. In short, Esmaeili had
not made a sufficient showing to support a reasonable belief that juror
misconduct had occurred.
Taken in
context, the court's comments such as "I do not release juror
information" and "I'm not necessarily going to bring in all of the
jurors" do not show, as Esmaeili asserts, that the court had a
"personal policy" of not releasing juror information. The record as a whole shows the court
considered each issue carefully and on its own merit, and properly placed the
burden on Esmaeili to identify the juror in question. Throughout the proceedings, defense counsel
had the opportunity to bring forth information identifying a juror other than
Juror No. 12, but no additional information was presented. Had the issue been brought to the court's
attention during trial, rather than more than three and one-half months later,
the court could have immediately and easily conducted an investigation with
little, if any, intrusion into the jurors' private sphere.
Esmaeili
contends he received ineffective assistance from both trial counsel and counsel
who represented him in the posttrial proceedings. Esmaeili asserts if the attorneys had pursued
the juror identification issue diligently, and identified the juror in question
or narrowed down the field of possible jurors, it is reasonably likely the
court would have called the identified juror or jurors to court, at which time
the witnesses could have confirmed the juror's identity. Esmaeili concludes it is probable the court
would have declared a mistrial.
To prevail
on this contention, Esmaeili must show that counsel failed to act in a manner
to be expected of a reasonably competent attorney and that counsel's acts or
omissions prejudiced him. (
668, 687-688, 691-692.) To show
prejudice, Esmaeili "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." (Id. at p. 694.)
The record
is devoid of any indication trial counsel actually knew about Jafori or the
alleged bribe, and devoid of any indication new counsel's efforts were
inadequate. Despite the fact that there
were many people in the courtroom in addition to counsel who saw the jurors
(investigators for both parties and court personnel), there is no evidence that
any juror matched Jafori's description of the man she said approached her. Thus, no prejudice has been shown.
DISPOSITION
The
judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
name="_ftn1" title="">[1] Further statutory references are to the Penal Code unless
otherwise specified.
name="_ftn2" title="">[2] For the first time on appeal, Esmaeili suggests the court
could have summoned all of the male jurors.
He cites no authority for this equally invasive course of action. For the first time in his reply brief, he further
refines his suggestion by stating the court could have summoned "only
'young' male jurors (say, jurors under 30)."
