P. v. Williams
Filed 7/3/12 P.
v. Williams CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES
WILLIAMS, JR.,
Defendant and Appellant.
D058734
(Super. Ct. No.
SCD222772)
APPEAL
from a judgment of the Superior Court of
County, David M. Gill, Judge.
Affirmed.
In
an amended consolidated information, James Williams, Jr., was charged with
three drug-related offenses committed
on different dates in late 2009 (all further dates are to calendar year 2009
unless otherwise specified): (1)
September 18 (count 1: Health & Saf.
Code, § 11351.5); (2) simple possession of cocaine base on September 23
(count 2: Health & Saf. Code,
§ 11350, subd. (a)); and
(3) possession of cocaine base for sale on
December 1 (count 3: Health & Saf.
Code, § 11351.5). As to counts 1
and 3, the information alleged Williams had suffered a prior drug conviction
(Health & Saf. Code, § 11351.5) within the meaning of Health and
Safety Code section 11370.2, subdivision (a).
As to counts 2 and 3, the information alleged Williams had committed
those offenses while released from custody on bail within the meaning of Penal
Code section 12022.1, subdivision (b) (undesignated statutory references will
be to the Penal Code unless otherwise specified). The information also alleged Williams had
suffered four probation denial prior convictions within the meaning of section
1203, subdivision (e)(4), and a 1992 prior strike conviction within the meaning
of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a)
through (d).
The
court denied Williams's motion in limine
for severance by which he sought separate trials on each of the three
counts. A jury thereafter found Williams
guilty of all three counts. Following a
bifurcated bench trial, the court found true the various enhancement and
special allegations.
After
speaking with several of the jurors in the presence of the prosecutor after the
jurors were excused, defense counsel brought a motion under Code of Civil
procedure section 237, subdivision (b), for release of sealed juror contact
information for the purpose of obtaining affidavits for a new trial motion
based on the denial of Williams's severance motion and juror comments,
questioning why counsel did not try to separate the three counts. Jurors indicated they would have had
difficulty reaching the guilty verdicts as to counts 1 and 3 if they had been
tried separately. The court denied that
motion and then sentenced Williams to an aggregate prison term of 15 years
eight months.
Williams
appeals, contending (1) the judgment must be reversed because the court's
denial of his motion in limine to sever the three joined counts resulted in
gross unfairness that had the effect of denying him a
denied his motion for disclosure of juror contact information; and (3) the
court violated his equal protection
rights under the federal Constitution and committed reversible error when
the defense made a Batson/Wheeler
of a peremptory challenge to excuse one of two African-American prospective
jurors, and the court ruled the defense had failed to meet its threshold burden
of making a prima facie case of group bias
discrimination. We affirm the
judgment.
FACTUAL BACKGROUND
A.
The People's Case
On
September 18 at around 3:00 a.m., San Diego Police Officer Benjerwin Manansala
responded to a report of vandalism. When
Officer Manansala arrived, Williams was in the driver's seat of a nearby parked
car, with his door open, and another man and a woman were standing behind the
car. As he engaged them in conversation,
Officer Manansala noticed several pieces of rock cocaine on the roof of the
car. Officer Manansala's partner
searched Williams incident to arrest and found in his right front pants pocket
a glass crack pipe with a Brillo pad inside it and a chunk of cocaine base that
weighed about 7.5 grams, a sufficient quantity for more than 70 usable doses of
0.1 gram each. Williams also possessed
$260 in cash, which included one $100 bill, seven $20 bills, and two $10
bills. Inside the car, Officer
Manansala's partner found a big clump of unused Brillo, which is typically used
in the smoking of cocaine base, and a stick or club about two-and-a-half or
three feet in length that Williams said he used to keep dogs away. The other male detained at the scene
possessed three crack pipes. The female
had neither drugs nor paraphernalia in her possession.
On
September 23 at around 11:00 p.m., San Diego Police Officer Adam Schrom stopped
Williams for running a stop sign and driving a car with tinted windows. As Williams's female passenger was subject to
a Fourth Amendment waiver, Officer Schrom and his partner searched the front
compartment of the vehicle and found in the center console a glass pipe used
for smoking cocaine base. During a
search incident to arrest, Officer Schrom and his partner found another crack
pipe and 0.28 gram of cocaine base in the left pocket of Williams's shorts.
On
December 1 at around 4:00 a.m., Officer Schrom again encountered Williams
sitting in a parked car. As he
approached the car, Officer Schrom illuminated the passenger compartment with
his flashlight and saw, in plain view, an open beer can in the center console
and, on the dashboard, a screwdriver with 0.23 gram of cocaine base on its
tip. When Officer Schrom opened the
driver's side door, he saw that Williams was holding a crack pipe, and he also
observed in the door handle a plastic baggie that contained about 12 pieces of
cocaine base later determined to have a total weight of 4.88 grams. Williams also had in his possession $700 in
cash, which included 34 $20 bills, three $5 bills, and five $1 bills. Williams's female passenger possessed a crack
pipe and two small pieces of rock cocaine.
Detective
Gary Avalos of the San Diego Police Department testified that street drug
dealers carry smaller quantities of cocaine base, typically not more than a
couple of grams, and sell it in units of one-tenth or two-tenths of a gram,
which would sell on the street for $20 and $40, respectively. When the prosecutor presented to Detective
Avalos a hypothetical involving the seizure of almost five grams of rock
cocaine under circumstances similar to those that Officer Schrom observed on
December 1, Detective Avalos stated, "I know, based on my training and
experience working in City Heights as a patrol officer,
that . . . nobody buys that many rocks and just holds onto
[them] for possession." Detective
Avalos testified that drug dealers, who are aware there is a severe penalty for
getting caught with guns, sometimes carry sticks or clubs in their vehicles for
protection.
Detective
Avalos indicated that street drug dealers mainly carry smaller denomination
bills, and possession of a large number of $20 bills shows the dealer is making
numerous transactions involving $20 or $40 "buys." However, people who buy drugs do not have a
lot of money and thus do not carry a lot of money. Detective Avalos observed that dealers, unlike
users, often refuse to sign a receipt for their cash after it has been
impounded because they want to "detach themselves from what they believe
[are] indicia of sales."
When
presented with hypotheticals that reflected the facts involved in Williams's three
arrests, Detective Avalos opined that Williams possessed cocaine base for sale
on September 18 and December 1, but Williams possessed cocaine base for
personal use on September 23.
B.
The Defense Case
Arthur
Fayer, a director of education and program manager at a nonprofit alcohol and
drug treatment program under contract with the County of San Diego, testified
someone could possess between five and seven grams of cocaine base for personal
use with no intent to sell it. He
indicated he once personally consumed between seven and 10 grams of cocaine
base daily. However, some people might
possess as little as one-tenth of a gram of cocaine base with intent to sell
it.
Fayer
opined that some users might buy a large amount of cocaine base after suddenly
getting a large sum of money and then "put it away and use it sparingly or
however they can." He indicated
that with a volume discount, someone could buy 7.5 grams of cocaine base for
about $300.
When
defense counsel presented hypotheticals to Fayer and asked him whether he
believed Williams possessed cocaine base for sale or personal use on September
18 and December 1, Fayer replied that it could "go either way."
Williams
testified that he bought 7.56 grams of cocaine base in the early morning hours
of September 18, and his intent was to smoke it, not sell it. He left the house with $500 and spent $225
to buy the drugs. He bought a large
amount because he did not want to have to keep coming back to buy more.
Williams
also testified he was with a woman in a car on September 23 and possessed 0.28
gram of cocaine base when he was stopped by the police. He had about $400 or $500 in his pocket, but
that money was not confiscated because "when they charge you with
possession, they don't take your money."
Williams indicated he was stopped again in the early morning hours on
December 1 in the company of another female, in the same area, and admitted he
bought and possessed drugs with the intent to smoke some in the car to
"[m]ake sure [he] had real drugs."
Williams also indicated he was going to take the drugs back to his
residence and "have a little party."
On
cross-examination, Williams acknowledged he had been convicted of possession of
cocaine base for sale in January 1993.
The people who were with him on September 18, September 23, and December
1 were crack cocaine users, like himself.
Williams testified he did not have to share the drugs and stated,
"If I wanted to give them some, that was one thing. But when I had to, when I bought it, just
break them off some." When the
prosecutor asked Williams whether he had been unwilling to sign the receipt on
the two occasions when his cash was impounded because he was "[p]aranoid
to associate [himself] with drug proceeds," Williams responded, "No,
sir," and stated he was "[p]aranoid [about] getting caught,
period."
DISCUSSION
I
LIMINE SEVERANCE MOTION
Williams
claims the judgment must be reversed because the court's denial of his motion
in limine to sever the three joined counts resulted in gross unfairness that
had the effect of denying him a fair trial.
In support of this claim, he asserts the jury used the two
possession-for-sale counts "to bolster each other" and to draw an "illegitimate
inference" that he "had a bad character, and a propensity to sell
cocaine base." He also maintains
that joinder, combined with his acknowledgment on cross-examination that he was
convicted in 1993 of possession for sale of cocaine base (Health & Saf.
Code, § 11351.5), created a "spill-over effect" with the result
that he was "grossly prejudiced by having one sales count spill over to
the other." Williams also relies on
his trial counsel's postverdict report to the court that "jurors [took
counsel] to task for not doing his job and getting separate trials, saying the
various instances showed a 'character' or 'disposition' for drug sales."
A.
Background
The
amended consolidated information charged Williams with the commission of three
drug offenses in late 2009. Count 1
charged him with possession―on September 18―of cocaine base for
sale. Count 2 charged him with simple
possession of cocaine base on September 23.
Count 3 charged him with possession of cocaine base for sale on December
1.
1.
Williams's motion and the parties'
arguments
The
defense thereafter filed a motion in limine opposing consolidation of the three
charges and seeking separate trials on each of the three counts. In his motion, Williams argued the charges
should not be jointly tried because the alleged offenses occurred on three
separate dates during a two-and-a-half-month period, each offense was separate
and distinct and involved different witnesses, and the evidence was not
cross-admissible because the evidence pertaining to each incident was
inadmissible in the trials of the charges based on the other incidents. Williams also claimed a joint trial would
prejudice his federal constitutional rights to a fair trial and to remain
silent because in the event he chose to testify on his own behalf as to one
count but not the others, the jury might impermissibly infer he was guilty of
the counts as to which he chose to remain silent, and thus he would "be
coerced into testifying" as to all three counts and "effectively lose
his right to remain silent." In
addition, Williams claimed, if the three charged offenses were joined, the jury
might impermissibly use the evidence relating to one offense to infer that he
had a criminal disposition to commit the others, and the jury also might
"cumulate the evidence of the various crimes charged and find guilt, when
if considered separately, it would not so find."
In
support of joinder of the three charged offenses, the prosecution argued that
section 954 (discussed, post)
expresses a legislative preference for joint trials of similar offenses charged
against a single defendant, and the court should deny the defense request to
sever the counts because the charged offenses were of the same class in that
all three counts involved "either the possession for sale or simple
possession of cocaine base," they were connected by cross-admissible
evidence, and Williams could not show prejudice that would justify severance.
2. Ruling
The
court denied Williams's severance motion.
The court reasoned that "the counts are properly joined because
they're similar crimes and . . . there's not a great period
of time involved here," the prosecution was not "bootstrapping"
a weak charge by mixing it with a strong charge, and thus there was no
spillover effect because there was "no obvious great disparity in terms of
the strength of the evidence between these three counts." Referring to the possession for sale counts,
the court stated that the main thrust of the defense appeared to be that
Williams knowingly possessed the cocaine base, but did so for his personal use,
not for sale. Noting that "the
cases make it clear that the law strongly favors consolidation," the court
found the defense had not carried its burden of showing a "substantial
danger of undue or unfair prejudice or denial of a fair trial by trying these
three charges together."
B.
Applicable Legal Principles
The
law prefers consolidation (or joinder) of related charged offenses for trial
because joinder, " 'whether in a single accusatory pleading or by consolidation
of several accusatory pleadings, ordinarily avoids needless harassment of the
defendant and the waste of public funds which may result if the same general
facts were to be tried in two or more separate trials [citation], and in
several respects separate trials would result in the same factual issues being
presented in both trials.' " (
409; see also Alcala v. Superior Court
(2008) 43 Cal.4th 1205, 1220 (Alcala)
["[B]ecause consolidation or joinder of charged offenses ordinarily
promotes efficiency, that is the course of action preferred by the
law."].)
Section
954 provides that "[a]n accusatory pleading may charge two or more
different offenses connected together in their commission . . . or two or more
different offenses of the same class of crimes or offenses, under separate
counts, . . . provided, that the court in which a case is triable, in the
interests of justice and for good cause shown, may in its discretion order that
the different offenses or counts set forth in the accusatory pleading be tried
separately. . . ." Offenses
committed at different times and places are "connected together in their
commission" within the meaning of section 954 when there is a common
element of substantial importance among them.
(People v. Matson (1974) 13
Cal.3d 35, 39.)
If
the statutory requirements under section 954 for joinder of charged offenses
are met, a defendant claiming the trial court erred by denying his motion to
sever the joined charges has the burden to clearly establish that joinder poses
a substantial danger of prejudice. (
773 (Soper).) A defendant seeking severance of properly
joined charges " ' "must make a stronger showing of potential prejudice than would be necessary to
exclude other-crimes evidence in a severed trial." ' " (Id.
at p. 774, quoting Alcala,
In
determining whether a trial court abused its discretion in declining to sever
properly joined charges, " 'we consider the record before the trial
court when it made its ruling.'
[Citation.] Although our
assessment 'is necessarily dependent on the particular circumstances of each
individual case, . . . certain criteria have emerged to
provide guidance in ruling upon and reviewing a motion to sever
trial.' " (
"First,
we consider the cross-admissibility of the evidence in hypothetical separate
trials." (Soper, supra, 45 Cal.4th
at p. 774.) If evidence underlying the
properly joined charges in question would be cross-admissible under Evidence
Code section 1101,
title="">[3]
"that factor alone is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court's refusal to sever properly joined
charges." (Soper, at pp. 774-775; People
v. Bradford (1997) 15 Cal.4th 1229, 1315-1316 [first step in assessing
whether a combined trial would have been prejudicial " 'is to
determine whether evidence on each of the joined charges would have been
admissible, under Evidence Code section 1101, in separate trials on the
others. If so, any inference of
prejudice is dispelled.' "].)
However,
"complete (or so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for
example, if evidence underlying charge 'B' is admissible in the trial of charge
'A'―even though evidence underlying charge 'A' may not be similarly
admissible in the trial of charge 'B.' " (Alcala,
supra, 43 Cal.4th at
p. 1221.)
"Moreover, even if the evidence underlying these charges would
separate trials, that determination would not itself establish prejudice or an
abuse of discretion by the trial court in declining to sever properly joined
charges." (Soper, supra, 45 Cal.4th
at p. 775; see also Alcala, at p.
1221 ["Our decisions . . . make clear that even the
complete absence of cross-admissibility does not, by itself, demonstrate
prejudice from a failure to order a requested severance. We repeatedly have found a trial court's
denial of a motion to sever charged offenses to be a proper exercise of
discretion even when the evidence
underlying the charges would not have been cross-admissible in separate trials."].)
If
we determine that evidence underlying properly joined charges would
whether the benefits of joinder were sufficiently substantial to outweigh the
possible spillover effect of the other-crimes evidence on the jury in its
consideration of the evidence of defendant's guilt of each of the joined
charges. (Soper, supra, 45 Cal.4th
at p. 775.) "In making
additional factors, any of which—combined with our earlier determination of
absence of cross-admissibility—might establish an abuse of the trial court's
discretion: (1) whether some of the
charges are particularly likely to inflame the jury against the
defendant;
(2) whether a weak case has been joined
with a strong case or another weak case so that the totality of the evidence
may alter the outcome as to some or all of the charges; or
(3) whether one of the charges (but not
another) is a capital offense, or the joinder of the charges converts the
matter into a capital case.
[Citations.] We then balance the
potential for prejudice to the defendant from a joint trial against the countervailing
benefits to the state." (
1.
Standard of review
The
denial of a motion to sever charged offenses which are properly joined under
section 954 is reviewed for abuse of discretion, and the ruling will be
reversed only if the court has abused its discretion. (People
v. Osband (1996) 13 Cal.4th 622, 666.)
Such an abuse of discretion may be found when the court's ruling "
'falls outside the bounds of reason.' "
(Ibid.)
C.
Analysis
We
conclude Williams has not met his burden of establishing that the court abused
its discretion or violated his federal constitutional right to a fair trial by
denying his severance motion. Williams
does not challenge the Attorney General's showing that the three counts in
question were properly joined because both simple possession of cocaine base
and possession of cocaine base for sale are crimes of the same class within the
meaning of section 954.
Regarding
the cross-admissibility factor, we conclude that evidence underlying both
count―based on the September 18 incident―and count
3―pertaining to the December 1 incident―would be cross-admissible
under Evidence Code section 1101, subdivision (b) (see fn. 3,
with respect to the issue of whether Williams possessed the cocaine base with
intent to sell it. (See
(between the uncharged act and the charged offense) is required in order to
prove intent."].) The evidence
underlying both counts 1 and 3 would also be cross-admissible in a hypothetical
separate trial on the count 2 simple possession charge to establish Williams's
knowledge that the substance he possessed on September 23 was cocaine
base. (See Evid. Code, § 1101,
subd. (b).) Although evidence underlying
the simple possession charge would not be cross-admissible in hypothetical
separate trials on counts 1 and 3 with respect to the issue of whether Williams
possessed the cocaine base with intent to sell it, "that determination would
not itself establish prejudice or an abuse of discretion by the trial court in
declining to sever [the] properly joined charges." (Soper,
supra, 45 Cal.4th at p. 775; see also
Alcala, supra, 43 Cal.4th at p. 1221 ["complete (or so-called two-way)
cross-admissibility is not required"].)
Having
considered the cross-admissibility factor, we next consider the three remaining
factors (discussed, ante) recognized
by the courts to be relevant to an assessment of whether the benefits of
joinder of the charged offenses were sufficiently substantial to outweigh the
possible spillover effect of the other crimes evidence on the jury in its
consideration of the evidence of a defendant's guilt of each of the joined
charges. (Soper, supra, 45 Cal.4th
at p. 775.) First, although possession
of cocaine base for sale is a more serious offense than simple possession of
cocaine base, it is not a crime particularly likely to inflame the jury against
Williams.
Second,
nothing in the trial record itself indicates that a weak case was joined with a
strong case or another weak case so that the totality of the evidence altered
the outcome as to some or all of the charges.
We are cognizant of Williams's claim that prejudice is demonstrated by
"the jury's own remarks after the verdict, indicat[ing] they found it
easier to convict with multiple sales charges,
and . . . criticiz[ing] defense counsel for allowing a
joint trial." However, we conclude
the court's charge to the jury dispelled any potential substantial prejudice in
this case. The court instructed the jury
under CALCRIM No. 2302 on the elements of possession for sale of a controlled
substance, under CALCRIM No. 2304 on the elements of simple possession of a
controlled substance, and under CALCRIM No. 220 on the People's burden to
"prove each element of a crime beyond a reasonable doubt." Of particular importance, the court gave
CALCRIM No. 375 regarding the People's evidence that Williams committed another
possession-of-cocaine-base-for-sale offense that was not charged in this
case. That instruction admonished the
jurors, "Do not consider this evidence for any other purpose except for
the limited purpose of determining whether the defendant had the intent to sell
and whether the defendant knew the substance was a controlled
substance." It also admonished the
jurors, "Do not conclude from this
evidence that the defendant has a bad character or is disposed to commit a
crime." (Italics added.) Equally important was the court's instruction
under CALCRIM No. 3515 that "[e]ach of the counts charged in this case is
a separate crime . . . .
You must consider each count
separately and return a separate verdict for each one." (Italics added.) "Jurors are presumed able to understand
and correlate instructions and are further presumed to have followed the
court's instructions." (
852.) Here, in the absence of evidence
that would rebut the presumption, we presume the jurors understood and followed
the foregoing instructions, which clearly informed them of their duty to
consider each of the three counts separately, not draw what Williams refers to
as "an illegitimate inference" regarding his " 'character'
or 'disposition' to commit the [charged] offenses," and to find Williams
not guilty of a given charge unless the People proved each element of the crime
beyond a reasonable doubt. None of the
statements jurors allegedly made to defense counsel is sufficient to rebut the
presumption that the jurors followed the instructions given by the court.
Last,
after balancing the potential for prejudice to Williams against the
countervailing benefits to the state (see Soper,
supra, 45 Cal.4th at p. 775), we
conclude the benefits of joinder were sufficiently substantial to outweigh the
possible spillover effect of the other crimes evidence on the jury in its
consideration of the evidence of defendant's guilt of each of the joined
charges. Officer Schrom, one of the
prosecution's principal witnesses, was involved in both the September 23
incident and the December 1 incident.
Another principal prosecution witness, San Diego Police Department
Criminalist Amy McElroy, weighed and tested the drugs seized during all three
incidents. The ability of key
prosecution witnesses like Officer Schrom and Criminalist McElroy, and defense
witness Arthur Fayer to testify in a single trial served the state's interest
in judicial efficiency and economy that substantially outweighed any potential
prejudice to Williams. Accordingly, we
conclude Williams's claim that the court's denial of his motion in limine to
sever the three joined counts resulted in gross unfairness that had the effect
of denying him a fair trial, is unavailing.
II
INFORMATION MOTION
Williams
also contends the court erred "on multiple levels" when it denied his
motion under Code of Civil Procedure section 237 for disclosure of juror
contact information that his counsel intended to use to obtain affidavits for a
new trial motion. The motion would have
been based on the claim that some of the jurors made postverdict remarks to
defense counsel, indicating Williams was denied a fair trial as a result of the
court's denial of his motion for severance of the three joined charges in this
case. Williams maintains the court
improperly held him to an obsolete standard of diligence under
541 (Rhodes), which was decided three
years before Code of Civil Procedure section 237 (the statute that currently
governs disclosure of juror contact information) was enacted in 1992 and held
that a convicted defendant's counsel was entitled to such information if the
disclosure motion was accompanied by "a sufficient showing to support a
reasonable belief that . . . diligent efforts were made to
contact the jurors through other means . . . ." (Rhodes,
at pp. 551-552.) Williams faults the
court's reliance on Rhodes because
the Rhodes language requiring
diligence in contacting jurors through other means "reflects procedures
under old law, whereby it was considered less intrusive for attorneys to let
jurors go home [and] then contact them later." He asserts "[t]here is no doubt this is
absolutely forbidden and a misdemeanor now."
Williams
also maintains the court interpreted Code of Civil Procedure section 206, subdivision
(g)―which authorizes a defense postverdict petition for access to juror
contact information under section 237 of that code "for the purpose of
developing a motion for new trial or any other lawful purpose"―in an
overly restrictive manner to mean that such information could be disclosed only
for the purpose of investigating a potential claim of juror misconduct.
Williams
seeks either reversal of the judgment entirely, or, in the alternative,
reversal and remand to the trial court for a hearing reflecting current law and
a determination "whether a proper 'other' purpose for disclosure (outside
the ambit of Evidence Code section 1150[
existed in [this] case." We
conclude Williams's claim that the court erred in denying his motion is
unavailing.
A. Background
1.
Williams's motion
On
May 11, 2010, the day after the jury returned its verdicts, defense counsel
brought an oral motion for release of sealed juror contact information for the
purpose of obtaining affidavits for a new trial motion based on the denial of
Williams's severance motion and postverdict comments some of the jurors made to
him questioning why he did not try to separate the three counts. The prosecutor opposed the motion,
acknowledging "it would have been tougher to convict on all three counts
if they were tried separately," but stating he "completely
disagree[d]" with defense counsel's interpretation of what the jurors
said. The prosecutor added that the
jurors "absolutely did not assert that [Williams] would not be guilty had
we tried [the three counts] separately."
The court set the matter for hearing on July 23, 2010, the date also set
for sentencing.
Williams
thereafter filed his written noticed motion under Code of Civil Procedure
section 237, subdivision (b) for release of the sealed juror contact
information. Williams renewed his
argument that he needed the juror contact information to "develop issues
in support of a motion for new trial."
Williams asserted that, as he had argued in his in limine severance
motion, "the jury did use evidence in one count"―count
3―such as "drugs, money, pipes, [B]rillo, push rods, and early
morning hours in East San Diego, to infer criminal disposition and find him
guilty on the other count"―count 1.
Furthermore, he argued, the postverdict juror statements to his counsel
"support[ed] the good cause needed to warrant the release of juror
information" because the statements "indicate[d] that the jury did
not reach the factual finding that [Williams] was guilty beyond a reasonable
doubt on count[ 1] but rather was guilty based on the cumulative impermissible
use of evidence and was contrary to the law."
In
support of his motion, Williams attached the declaration of his trial counsel,
who stated in part:
"5. After the verdict several of the jurors
stayed to discuss the case with counsel outside the courtroom.
"6. I asked the jurors if the jury had made a
separate finding of fact as to whether [Williams] was guilty on count [1] and
count [3], possession of controlled substance for sale.
"[7]. Several of the jurors[] said they used
evidence of count [3] to convict my client on count [1]. One of the jurors stated they would have had
a very difficult if not impossible task of find[ing] [Williams] guilty if the
charges were tried separately. Another
juror questioned why I did not request the charges on separate days be tried
separ[a]tely.
"[8]. Another juror stated she felt pressure from
other jurors based on impermissible use of evidence on count[ 3] to infer
[Williams] had a character disposition to commit count [1] and therefore was
probabl[y] guilty."
2. The
People's opposition
The
prosecution filed written opposition arguing that Williams's motion and
supporting affidavit failed to make a prima facie showing of good cause for the
release of the information as required by Code of Civil Procedure section 237,
subdivision (b), because the requisite good cause, as defined in
showing to support a reasonable belief that jury
misconduct occurred." (Italics
added.) Here, the prosecution argued,
Williams's claim of good cause "impermissibly relie[d] solely on
information of several jurors' mental process[es] in reaching their
verdicts" in violation of Evidence Code section 1150(a). The prosecution added:
"How a particular juror used any
piece of evidence to reach his or her own ultimate decision of guilt on any
count or what potential pressure any juror may have felt in coming to his or
her ultimate decision is not for a court to review. []Evidence Code [s]ection 1150(a) expressly
prohibits inquiry into a juror's mental process. [Williams] makes no outward allegation of
'good cause' claim on the perceived mental process[es] of several jurors. Defense has failed to make a sufficient
showing to support a reasonable belief that jury
misconduct occurred." (Italics
added.)
3.
Hearing and ruling
On
July 23, 2010, during the hearing on Williams's motion, the prosecutor
indicated he was privy to the postverdict juror statements on which Williams
was relying, but his recollection of the substance of those statements
differed:
"Your Honor,
. . . about the only thing I agree with the characterizations
that [defense counsel] is making is the fact that one of the jurors did in fact
ask him why he didn't try the counts separately. What they said at that point was simply the
case would have been more difficult
had each count been tried separately; they
did consider all of the evidence in making their decision." (Italics added.)
The
prosecutor added that "even if the Court believe[d] everything"
defense counsel was saying, defense counsel still had failed to show good
cause.
Defense
counsel agreed with the prosecutor that the jurors had stated it would have
been more difficult for them to reach a guilty verdict on count 1 if they had
not heard the evidence regarding count 3, and he repeated his recollection that
they asked him, "Why didn't . . . you do your job and
separate the charges and try them separately?"
The
court asked defense counsel, "Well, they didn't give any indication,
though, that they hadn't applied the proof beyond a reasonable doubt standard,
did they?" Defense counsel replied,
"Well, I . . . didn't query any further." He then told the court:
"If I get a statement out of them
that . . . Count 1 wouldn't have been proved beyond a
reasonable doubt, or they seriously would have questioned that had Count 3 not
been there, I think that's an affidavit that if I can bring to the Court
―"
The
court then interjected the comment, "Well, but, how does that get you
around the language of [section] 1150(a) of the Evidence Code? I think, at most, that brings it squarely
within the provisions of [Evidence Code section] 1150(a). That's exactly why we have that privilege, I
think."
Following
additional argument, and applying the Rhodes
test for "good cause,"
name="_ftnref6" title="">[6] the
court told defense counsel, "I don't think in what you've
presented . . . [that] there's a basis for m[y] having
a reasonable belief that jury misconduct
occurred." (Italics
added.) The court indicated that if it
accepted the prosecutor's recollection of what the jurors said, there would be
no basis for having a reasonable belief that jury misconduct occurred
because "[t]hey emphasized that they ha[d] considered [counts 1 and 3]
separately and they have applied the proof beyond a reasonable doubt
standard."
Defense
counsel responded, "I didn't hear them make that statement. What I heard was they had difficulty with
Count 1 and Count 3 and questioned my integrity [for] having them tried
together." The following exchange
then took place between the court and defense counsel, at the end of which the
court denied Williams's motion on the ground he had failed to establish good
cause under the Rhodes test:
"[THE COURT]: The
fact they had difficulty with [counts
1 and 3]―we expect jurors to have difficulty with cases. I mean, by definition, I hope the cases that
go to trial where we spend several days trying it to a jury are cases that are
going to present some difficulty to the jurors.
If it's a slam dunk case, then we shouldn't be here. So that doesn't
show any juror misconduct.
"[DEFENSE COUNSEL]: Difficulty in finding guilt on Count 1 until
they were able to accumulate the evidence on Count 3, is what they said. By using that evidence, they were―
"[THE COURT]: The jury instructions make it clear they have to consider each count
separately; have to reach a separate verdict as to each count.
"[DEFENSE COUNSEL]: And that's
the violation that we're counting on, Your Honor, is that
"[THE COURT]: I don't see―I don't have any reasonable suspicion that that was violated, so the
motion is denied." (Italics
added.)
B.
Applicable Legal Principles
After
the recording of a jury verdict in a criminal case, the court's record of
personal juror identification information (names, addresses, and telephone
numbers) is sealed. (Code Civ. Proc., §
237, subd. (a)(2).) On a petition filed
by a defendant or his or her counsel, a trial court may in its discretion grant
access to such information when necessary to the development of a motion for
new trial or "any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).)
A
petition for access to personal juror identification information must be
supported by a declaration citing facts "sufficient to establish good
cause" for the release of the information.
(Code Civ. Proc., § 237, subd. (b).)
If the petition and declaration establish a prima facie showing of good
cause, the trial court must set the matter for hearing. (Ibid.) If the matter is set for hearing, the
petitioner must provide notice "to the parties in the criminal
action" and the court must provide notice to each juror whose personal
identification information is sought. (
to oppose release of the information. (
If the court determines not to set the matter for hearing, it is
required to set forth the reasons and make an express finding either of a lack
of a prima facie showing of good cause or the presence of a compelling interest
against disclosure. (Code Civ. Proc., §
237, subd. (b).)
In
an uncodified declaration made as part of the 1995 amendment of Code of Civil
Procedure section 206, the Legislature stated that jurors who have served on a
criminal case have completed their civic duty.
The Legislature also stated the procedures in Code of Civil Procedure
sections 206 and 237 were designed "to balance the interests of providing
access to records of juror identifying information for a particular,
identifiable purpose against the interests in protecting the jurors' privacy,
safety, and well-being, as well as the interest in maintaining public
confidence and willingness to participate in the jury system." (Stats. 1995, ch. 964, § 1, p. 7375.) The courts have long recognized their
inherent power to strike this balance. (
Cal.4th 1084, 1091-1096; Rhodes,
In
this context, to demonstrate the statutorily required good cause, a defendant
must make a sufficient showing under the Rhodes
test (see fn. 6, ante) "to
support a reasonable belief that jury misconduct
occurred." (Rhodes, supra, 212
Cal.App.3d at
p. 552.)
"Even though Rhodes was
decided before the . . . present enactment [of section 237]
requiring a showing of good cause, the Rhodes
test survived" the enactment. (
Cal.App.4th 978, 990; see also People v.
Wilson (1996) 43 Cal.App.4th 839, 852 [affirming trial court's denial of
defense counsel's request for personal juror identification information because
"no showing whatsoever was made o[f] any type of juror misconduct"].)
The
alleged juror 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, quoting Evid. Code, §
1150(a).) Good cause does not exist
where the allegations of jury misconduct are speculative, conclusory, vague or
unsupported. (People v. Wilson, supra,
43 Cal.App.4th at p. 852; Rhodes,
553-554.) Furthermore, a trial court may
properly consider whether the evidence offered in support of the petition would
be excludable under Evidence Code section 1150(a) on the ground it reveals the mental
processes by which jurors reached the verdict.
(See People v. Jones,
A
trial court's denial of a petition for access to juror identification
information is reviewed for abuse of discretion. (People
v. Jones, supra, 17 Cal.4th at p.
317.)
C.
Analysis
We
conclude the court did not abuse its discretion in denying Williams's motion
for release of the sealed juror contact information because his motion and the
supporting declaration of his trial counsel failed to cite facts
"sufficient to establish good cause" for the release of the
information as required by Code of Civil Procedure section 237, subdivision
(b). As already discussed, to establish
the requisite good cause under the applicable Rhodes test, Williams had the burden of setting forth "a
sufficient showing to support a reasonable belief that jury misconduct
occurred." (Rhodes, supra, 212
Cal.App.3d at p. 552; see also People v.
Carrasco, supra, 163 Cal.App.4th
at p. 990; People v. Wilson,
Williams
failed to meet that burden, as the court correctly found. In his written motion, Williams claimed that
postverdict statements by some of the jurors provided good cause for release of
the sealed juror contact information for the purpose of obtaining affidavits
for a new trial motion based on the court's denial of his in limine severance
motion because the statements indicated the jury "did not reach the
factual finding that [he] was guilty beyond a reasonable doubt" on count[
1,] but rather was guilty based on the cumulative impermissible use of
evidence"; and, thus, the verdict was contrary to the law and grounds for
a new trial under Penal Code section 1181.
During the hearing, Williams's counsel clearly suggested the jury
committed misconduct by violating the court's instructions requiring it to
consider each count separately and reach a separate verdict as to each count.
Where
a party seeks a new trial based upon jury misconduct, the court first must determine
whether the evidence presented for its consideration is admissible. (People
v. Duran (1996) 50 Cal.App.4th 103, 112 (Duran).)
Here,
the evidence presented for the court's consideration was set forth in the
declaration of Williams's trial counsel, who stated that he asked some of the
former jurors whether "the jury had made a separate finding of fact as to
whether [Williams] was guilty on count [1] and count [3]," the two counts
charging him with possession of cocaine base for sale. Counsel also stated in his declaration that
several of the jurors "said they used evidence of count [3] to convict
[Williams] on count [1]"; one of the jurors stated he or she "would
have had a very difficult if not impossible task of find[ing] [Williams] guilty
if the charges were tried separately"; and another juror "felt
pressure from other jurors based on impermissible use of evidence on count [3]
to infer [Williams] had a character disposition to commit count [1] and
therefore was probabl[y] guilty."
Assuming the former
jurors would have submitted affidavits consistent with defense counsel's
representations about the contested postverdict statements some of them
allegedly made, such evidence would have been inadmissible under Evidence Code
section 1150(a), and thus insufficient to support a reasonable belief that jury
misconduct occurred. Evidence Code
section 1150(a) provides:
"Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to
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. No evidence is admissible to show the effect of such statement,
conduct, condition, or event upon a juror either in influencing him to assent
to or dissent from the verdict or concerning the mental processes by which it
was determined." (Italics
added.)
Our courts have
held that Evidence Code section 1150(a) permits jurors to testify to
" 'overt acts,'―that is, such statements, conduct, conditions,
or events as are 'open to sight, hearing, and the other senses and thus subject
to corroboration.' " (
398; Duran, supra, 50 Cal.App.4th at p. 112.)
Here, Williams's
claim of good cause for release of the juror contact information impermissibly
rests on evidence reflecting on the mental processes of several former jurors in
reaching their verdicts. Evidence that a
former juror made a postverdict statement that he or she used evidence of one
count to convict the defendant of another count, or would have had a "a
very difficult if not impossible task" of reaching a guilty verdict if
"the charges were tried separately," as averred in paragraph 6 of the
second page of Williams's counsel's declaration, is not evidence of an overt
act that would be subject to corroboration.
(See In re Stankewitz,
reflects on the juror's mental processes in reaching a verdict. (See Evid. Code, § 1150(a).) The same is true of evidence that a former
juror subjectively "felt pressure" from other jurors or used certain
evidence to infer the defendant had a certain character disposition and, thus,
was probably guilty," as averred in paragraph 8 of Williams's counsel's
declaration.
To the extent
Williams seeks to use the evidence of postverdict statements made by some of
the jurors to indirectly challenge the court's denial of his motion in limine
to sever the three counts, we have already concluded the court did not err in
making that ruling.
In light of our
conclusion that Williams has failed to meet his burden of establishing good
cause for release of the juror contact information as required by Code of Civil
Procedure section 237, subdivision (b), we need not reach the merits of his
additional claim that the court improperly held him to an obsolete standard of
diligence under Rhodes,
III
BATSON/WHEELER MOTION
Last,
Williams, who is African-American, claims the court violated his equal
protection rights under the federal Constitution and committed reversible error
when the defense objected under Batson/Wheeler
to the prosecutor's exercise of a peremptory challenge to excuse prospective
juror No. 7 (hereafter juror No. 7)―one of two African-American
prospective jurors―and the court ruled the defense had failed to meet its
threshold burden of making a prima facie case of group bias
discrimination. We reject this claim.
A.
Background
After
the prosecutor exercised a peremptory challenge to excuse juror No. 7, defense
counsel made a Batson/Wheeler
objection. The parties agreed that
juror No. 7 was the only African-American male on the panel and that seated
juror No. 10 was an African-American female.
The court stated, "Well, I
don't think at this point the threshold has been satisfied. But if
[the prosecutor] wants to state something on the record, I'll give him that opportunity
while things are fresh in everybody's mind." (Italics added.) The court observed that "[juror No. 7]
has survived several challenges and we all understand that the―you know,
the mix sort of changes as challenges occur."
The
prosecutor stated, "I'd also note that several times I passed and was
happy with the jury," and then gave the following reasons for having
exercised the peremptory challenge to excuse juror No. 7:
"Your Honor, there were several
things about [juror No. 7] that I didn't necessarily like as far as a potential
juror. Um, one being that he continually
avoided making eye contact with me. And
I have been trying for the last two days to make eye contact, establish eye
contact with him as I have basically with every juror seated just to see if
they're willing to make eye contact with me.
He continually looks at the floor, refuses to make eye contact with me.
"I noted that he lives alone and
that he's a fairly young individual. Um,
I kind of take that as an individual who's not married, doesn't have kids,
doesn't have a real stake in the community.
"And, then, kind of the thing, ah,
[w]hat really got to me yesterday was during the questioning of the Oceanside
former police officer, the Harbor Patrol officer, um, [defense counsel] was
questioning the harbor officer and asking him if he could set aside all those
years of experience and be fair and impartial.
And I noted there was an audible scoff from [juror No. 7], kind of
a―he looked down and kind of under his breath went (indicating). You know, made it―and I don't know that
anybody caught that but me because I was sitting so close to him. And I was kind of watching to see what his
reaction would be at that point.
"And then the last thing that I
noted yesterday was that when we were discussing―either today or
yesterday―when we were discussing quantities of drugs―I think
[defense counsel] was again talking about quantities of drugs―[juror No.
7] had previously said he had absolutely no experience will illegal substances,
with crack cocaine. And what he said
today interested me that he said it would depend on if those rocks were broken
up into smaller pieces. And for somebody
who doesn't have any familiarity with crack cocaine to key in on that specific
thing, smaller quantities of rocks, ah, would maybe potentially give more
weight to a sales charge as opposed to a possession charge, I thought that
established, at least in my mind―a bell went off that maybe he has some
familiarity with crack cocaine that he's not sharing with us. Or with illegal substances.
"And, so, for those reasons, you
know, I think it was a toss up with him because he did express some―some
ability to, you know, assess the evidence as a whole and, you know, sit back
and just listen to the evidence and make an opinion. But . . . those stated
reasons were the reasons that I decided to let . . . him go
today."
The
court then ruled there was no threshold showing that the prosecutor's use of a
peremptory challenge to excuse juror No. 7 was racially motivated.
B.
Applicable Legal Principles
The
use of peremptory challenges to excuse prospective jurors solely on the basis
of group bias based on membership in a racial group violates both the state and
federal Constitutions. (
supra, 22 Cal.3d at pp. 276-277.)
There
are three steps in establishing a Batson/Wheeler
claim. First, the defendant must make a
prima facie case by showing that the totality of the relevant facts gives rise
to an inference of racially discriminatory
purpose. (Johnson v. California (2005) 545 U.S. 162, 168; see
193 (Alvarez) [a prosecutor is
presumed to have exercised peremptory challenges in a constitutional manner,
and the defendant bears the burden of making an initial prima facie showing of
purposeful discrimination].) Second, if
the defendant meets his burden of making such a prima facie showing, the burden
shifts to the People to show "permissible race-neutral justifications"
for the challenge. (Johnson, at p. 168.) Last,
if the People meet their burden of tendering a race-neutral explanation, the
trial court then must decide whether the defendant has proven "purposeful
racial discrimination." (
The
California Supreme Court has explained that "[t]he proper focus of a
subjective genuineness of the
race-neutral reasons given for the peremptory challenge, not on the objective reasonableness
of those reasons. [Citation.] So, for example, if a prosecutor believes a
prospective juror with long, unkempt hair, a mustache, and a beard would not
make a good juror in the case, a peremptory challenge to the prospective juror,
sincerely exercised on that basis, will constitute an entirely valid and
the challenge." (
924.) "All that matters is that the
prosecutor's reason for exercising the peremptory challenge is sincere and
legitimate, legitimate in the sense of being nondiscriminatory." (Ibid.)
The
prosecutor's explanation need not rise to a level that justifies the exercise
of a challenge for cause. (
635, 664.) "[A]dequate
justification by the prosecutor may be no more than a 'hunch' about the
prospective juror [citation], so long as it shows that the peremptory
challenges were exercised for reasons other than impermissible group bias and
not simply as 'a mask for race prejudice.'" (Ibid.)
1.
Standard of review
When
a trial court denies a Batson/Wheeler
motion based on its finding that no prima facie case of group bias was
established, the reviewing court considers the record of the voir dire and
affirms the ruling if it is supported by substantial evidence. (People
v. Jenkins (2000) 22 Cal.4th 900, 993.)
The reviewing court "accord[s] particular deference to the trial
court as fact finder, because of its opportunity to observe the participants at
first hand." (Id. at pp. 993-994.)
C.
Analysis
1.
Claim of mootness
As
a preliminary matter, we reject Williams's contention that since the
prosecutor, during the hearing on Williams's Batson/Wheeler objection, discussed at the court's request his
reasons for excusing juror No. 7, it is "irrelevant" whether the
defense made a prima facie case of Batson/Wheeler
error and, thus, "the analysis on appeal proceeds to whether there was a
plausible race-neutral reason for challenging [juror No. 7] and whether
substantial evidence supported those reasons." In support of this contention, Williams
relies on People v. Thomas (2011) 51
Cal.4th 449, 473-474 (Thomas).
Williams's
reliance on Thomas is misplaced. There, the Attorney General agreed that
because the prosecutor presented his reasons for exercising the peremptory
challenge, the issue of whether defense counsel established a prima facie case
was immaterial. (Thomas, supra, 51 Cal.4th
at p. 474.) Here, unlike in
prosecutor's presentation of his reasons for excusing juror No. 7 did
Williams made a prime facie case of Batson/Wheeler
error. Furthermore, as the California
Supreme Court explained in People v.
Welch (1999) 20 Cal.4th 701, "when . . . the trial
court states that it does not believe a prima facie case has been made, and
its challenges for purposes of completing the record on appeal, the question
whether a prima facie case has been made is not
mooted, nor is a finding of a prima facie showing implied." (Id.
at p. 746, italics added; see also People
v. Taylor (2010) 48 Cal.4th 574, 616 ["We have found it proper for
trial courts to request and consider a prosecutor's stated reasons for excusing
a prospective juror even when they find no prima facie case of discrimination;
indeed, we have encouraged this practice."].) Here, like the trial court in
believe the defense had made a prima facie
case, and then it invited the
prosecutor to justify his exercise of the peremptory challenge. We conclude the issue of whether Williams
made a prima facie case is not moot and a finding of a prima facie showing is
not implied. (People v. Welch, at p. 746; People
v. Taylor, at p. 616.)
2.
Merits
Having
reviewed the record of the voir dire, we conclude substantial evidence supports
the court's ruling that the defense failed to meet its threshold burden under
case of impermissible group bias discrimination. Although Williams "is himself
African-American, . . . that fact alone does not establish
a prima facie case of discrimination."
(People v. Kelly (2007) 42
Cal.4th 763, 780.) Significantly, the
record shows the prosecutor twice passed on the opportunity to exercise a
peremptory challenge to excuse juror No. 7, each time expressing his
satisfaction with the composition of the jury notwithstanding his presence on
it. These facts strongly suggest race
was not a motive for the challenge. (See
prosecutor used only one peremptory challenge against an African-American. He passed the alternate jurors once with two
African-American jurors remaining, and he never challenged the other African-American
juror. The fact that the prosecutor
accepted the jury panel once with both African-American jurors on it, and
exercised the single challenge only after defense counsel exercised his own
challenge, strongly suggests that race was not a motive behind the
challenge."].)
In
addition, as Williams acknowledges, a female African-American was seated on the
jury when the prosecutor accepted its ultimate composition. This fact also strongly supports the court's
finding that Williams failed to meet his burden of showing race was a motive
behind the prosecutor's decision to excuse juror No. 7. (See People
v. Taylor, supra, 48 Cal.4th at
p. 614 ["That the prosecutor excused a single African-American prospective
juror, without more, does not support the inference the excusal was based on
race, especially given defendant's acknowledgment during the hearing that
another African-American woman then was seated on the jury."].) Although this fact is not conclusive, it is
an indication the prosecutor acted in good faith when he challenged juror No.
7. (See People v. Ward (2005) 36 Cal.4th 186, 203 [" 'While the
fact that the jury included members of a group allegedly discriminated against
is not conclusive, it is an indication of good faith in exercising
peremptories, and an appropriate factor for the trial judge to consider in
ruling on a Whe
| Description | In an amended consolidated information, James Williams, Jr., was charged with three drug-related offenses committed on different dates in late 2009 (all further dates are to calendar year 2009 unless otherwise specified): (1) possession of cocaine base for sale on September 18 (count 1: Health & Saf. Code, § 11351.5); (2) simple possession of cocaine base on September 23 (count 2: Health & Saf. Code, § 11350, subd. (a)); and (3) possession of cocaine base for sale on December 1 (count 3: Health & Saf. Code, § 11351.5). As to counts 1 and 3, the information alleged Williams had suffered a prior drug conviction (Health & Saf. Code, § 11351.5) within the meaning of Health and Safety Code section 11370.2, subdivision (a). As to counts 2 and 3, the information alleged Williams had committed those offenses while released from custody on bail within the meaning of Penal Code section 12022.1, subdivision (b) (undesignated statutory references will be to the Penal Code unless otherwise specified). The information also alleged Williams had suffered four probation denial prior convictions within the meaning of section 1203, subdivision (e)(4), and a 1992 prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). |
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