P. v. Perry
Filed 1/13/09 P. v. Perry CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WAYNE PERRY, Defendant and Appellant. | A118677 (SolanoCounty Super. Ct. No. FCR230184) |
A jury convicted Timothy Wayne Perry (appellant) of two counts of second degree robbery and one count of assault with a semiautomatic firearm. Appellant contends the trial court erred in denying his motion for release of juror identifying information to facilitate investigation of possible juror misconduct. We affirm.
BACKGROUND
In July 2006, an amended information was filed charging appellant with petty theft with a prior (Pen. Code, 666),[1]two counts of second degree robbery ( 211), assault with a semiautomatic firearm ( 245, subd. (b)), second degree commercial burglary ( 459), and attempted petty theft with a prior ( 664, 666). The amended information also alleged gun use enhancements, prior serious felony convictions, and a prior strike.
In March 2007, the two counts of petty theft were dismissed on the prosecutors motion, and appellant pled no contest to the count of second degree commercial burglary. Appellant proceeded to trial on the two counts of second degree robbery and the count of assault with a semiautomatic firearm.
At trial, the victim of the first robbery testified that appellant approached him with a gun in a mall parking lot. Appellant robbed him of his wallet, cash, cell phone, and car keys. The victim of the second robbery and the assault with a firearm testified that he was walking with a pizza box when appellant approached him with a gun. Appellant robbed him of his pizza, cell phone, and cash. Appellant then shot the victim in the buttocks.
On March 12, 2007, the jury found appellant guilty on all three counts. The jury also found true the gun use enhancements as to all three counts, but found not true an allegation as to one of the robbery charges that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury ( 12022.53, subd. (d)). The court found true two prior serious felony and prior strike allegations.
On May 10, 2007, appellant moved for release of juror identification information in order to facilitate investigation of possible juror misconduct. On July 10, the court denied the motion.
On July 18, 2007, the court sentenced appellant to a total prison term of 38 years four months.
DISCUSSION
Appellant contends the trial court abused its discretion in denying his motion for release of juror identification information. (People v. Jones (1998) 17 Cal.4th 279, 317 [standard of review]; People v. Carrasco (2008) 163 Cal.App.4th 978, 991 [same].)
Code of Civil Procedure section 237, subdivision (b), requires a petition requesting release of a jurors personal information to be supported by a declaration of facts sufficient to establish good cause for the release of the information. The court is required to hold a hearing if the petition and supporting declaration establish a prima facie showing of good cause. (Ibid.) Code of Civil Procedure section 206, subdivision (g), provides that the defense may petition the court for release of juror information that is necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. To demonstrate good cause for disclosure of juror identifying information, a defendant must make a sufficient showing to support a reasonable belief that jury misconduct occurred. (Carrasco, supra, 163 Cal.App.4th at p. 990.)
Appellants motion for release of juror information was supported by an affidavit signed by Veronica Johnson, appellants aunt, who averred that on the first day of trial she heard the young black female juror tell two other jurors, I cannot wait to get to deliberations, because boy do I have a story to tell all of you. Appellants motion asserted that the speaker was juror No. 12[2]and that she said during voir dire that she was acquainted with appellant through her previous occupation as a social worker.[3] The motion claimed that the story the juror was anxious to tell the others may have been related to [appellants] detention. Johnson also averred that on the second day of trial, in the restroom, she overheard a juror tell another juror what a mess this all was, but its pretty clear what happened, dont you think?
Appellants motion argued the defense should be permitted access to juror identification information because members of the jury may have discussed aspects of the case before the case had been submitted to them, and received information about the case from a source outside the courtroom. In a June 2007 supplement to the motion, appellant stated that the defense had obtained statements from six jurors, including juror No. 12; none of the jurors disclosed any juror misconduct. One additional juror would not speak to the defense. Appellant requested access to personal information for the remaining five jurors.
The prosecution argued the defense had not made a prima facie showing of good cause to warrant a hearing: the timing of the allegations is suspect because Johnson waited until long after trial to make her allegations, the reported juror comments were vague and without any clear mention of prejudicial matters, the defense interviewed six jurors and discovered no jury misconduct, and the jurys not true finding regarding one gun use enhancement demonstrated actual deliberation and consideration of the evidence.
The court denied appellants motion, stating, Then based upon the totality of the information thats been presented to the court, at this time the defendants petition for release of jurors information is denied.
On appeal, appellant argues the affidavit established a prima facie showing of juror misconduct because it showed juror No. 12 shared an improper story with her fellow jurors and the other juror improperly prejudged the case and discussed it with another juror prior to deliberations. The trial court did not abuse its discretion in concluding appellant failed to make a prima facie showing of misconduct. Juror No. 12s comment indicated an intent to tell a story during deliberations, but appellants speculation that the story had to do with the jurors prior contact with appellant is insufficient to show good cause for release of juror information. (See People v. Wilson (1996) 43 Cal.App.4th 839, 852 [defense counsels request did not show good cause and stated at best, speculation on the part of how the jurors might have arrived at their verdict, ]; People v. Rhodes (1989) 212 Cal.App.3d 541, 554 [the investigators statement is too vague and conclusory to constitute an adequate preliminary showing of juror misconduct].) Moreover, there is no indication that the juror told an improper story during deliberations; six jurors, including juror No. 12, told the defense investigator that no misconduct occurred.
The other jurors comment, what a mess this all was, but its pretty clear what happened, reflects a mental effort to sort through and understand the evidence, but not an improper prejudgment of the case. None of the six jurors interviewed reported that any juror refused to deliberate, and the verdict itself does reflect deliberation. On the other hand, the comment does appear to violate the trial courts admonition not to discuss the case until deliberations. However, a showing that a juror disobeyed the courts instructions in a single instance does not necessarily constitute a prima facie showing of good cause for disclosure of juror information. In People v. Jefflo (1998) 63 Cal.App.4th 1314, 1318, the defendant alleged a juror committed misconduct by telling the defendants girlfriend that the jury was hung. Although the juror may have disobeyed the courts admonitions and instructions, the court rejected the defendants claim because he failed to explain how the jurors conduct was of such a character as is likely to have influenced the verdict improperly (Evid. Code, 1150, subd. (a)). (Jefflo, at p. 1322; see also Rhodes, supra, 212 Cal.App.3d at p. 554.) In this case, the affidavit showed only a passing comment in the restroom that did not communicate any particular view as to appellants guilt or innocence. The trial court did not abuse its discretion in denying appellants motion.
DISPOSITION
The trial courts judgment is affirmed.
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
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[1] All undesignated section references are to the Penal Code.
[2] The prosecutors opposition stated that juror No. 12 was the sole African-American female on the jury.
[3] During voir dire, juror No. 12 stated that she would be positively biased [b]ecause Ive worked with that young man, apparently referring to appellant. However, she assured the court, I can listen to the information and be fair to both sides.
